FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - judicial review - consent to institution of criminal proceedings under the Corporations Law - whether consent is required for indictable offence - whether accused has a right to be heard

CORPORATIONS - offences - expiry of time limit for instituting prosecution without ministerial consent - whether Minister must notify prior to granting consent

Corporations Law s 1316

Annetts v McCann (1990) 170 CLR 596 mentioned

Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1 discussed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 mentioned

Barton v R (1980) 147 CLR 75 discussed

Berwin v Donohue (1915) 21 CLR 1 mentioned

Bond v Minister for Justice (1992) 72 FCR 505 mentioned

Buffier v Bowen (1988) 32 A Crim R 222 disapproved in part

Commissioner of Police v Reid (1989) 16 NSWLR 453 discussed

Carswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738 mentioned

Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 mentioned

Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 mentioned

FAI Insurances Ltd v Winneke (1982-1983) 151 CLR 342 discussed

Goldsbrough & Co v MacMahon (1887) 8 NSWR 118 mentioned

Gouriet v Union of Post Office Workers [1978] AC 435 mentioned

Haoucher v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 648 discussed Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 mentioned

James v Robinson  (1963) 109 CLR 593 mentioned

Johns v Australian Securities Commission (1993) 178 CLR 408 mentioned

Karounos v Flavel (1984) 75 FLR 46 mentioned

Kovess v Director of Public Prosecutions (C’th)  (1997) 74 FCR 297 mentioned

Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 discussed

Newby v Moodie (1988) 83 ALR 523 referred to

Nicol v Attorney General for the State of Victoria [1982] VR 353 discussed and disapproved in part

O’Reilly v Mackman [1983] 2 AC 237 mentioned

R v Electricity Commissioners [1924] 1 KB 171 Ex parte Electricity Joint Committee Company (1920) Ltd mentioned

R v Rogerson (1991-1992) 174 CLR 268 mentioned

Rees v Crane [1994] 2 AC 173 mentioned

Re Magistrates Court at Melbourne; ex parte Slater (1984) 9 ACLR 713 mentioned

Salemi v MacKellar (No. 2) (1977) 137 CLR 396 mentioned

Save the Showgrounds for Sydney Inc. v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33 mentioned

Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 discussed

Smiles v Commissioner of Taxation (1992) 37 FCR 538 discussed and disapproved in part

South Australia v O’Shea (1987) 163 CLR 378 mentioned

Swan Hill Corporation v Bradbury (1937) 56 CLR 746 mentioned

Twist v Randwick Municipal Council (1976) 136 CLR 106 mentioned

Wiseman v Borneman [1971] AC 297 mentioned

Wouters v Deputy Commissioner of Taxation (1988) 84 ALR 577 mentioned

ANTONY GORDON OATES v THE HONOURABLE DARYL WILLIAMS (in his capacity as Attorney General of Australia) and THE SENATOR THE HONOURABLE AMANDA VANSTONE (in her capacity as the Minister for Justice for the Commonwealth of Australia)

WG 37 of 1998

FOSTER, VON DOUSSA & FINKELSTEIN JJ

6 JULY 1998

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         The orders made by Moore J be set aside.

3..        The respondents pay the appellant’s costs of and incidental to the appeal and of the hearing before Moore J.

AND THE COURT DECLARES THAT:

4.         The consent given on 5 January 1998 under s 1316 of the Corporations Law to the       institution of prosecutions against the Appellant is void.

Note: Settlement and entry of Orders are dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

The appellant is a citizen of the Republic of Poland.  Previously he had been an Australian citizen and a director of two well known but now insolvent companies, Bell Resources Ltd (BRL) and Bond Corporation Holdings Ltd (BCHL) and a number of their subsidiaries.  On 12 January 1995 an officer of the Australian Securities Commission (ASC) laid 31 complaints against the appellant in accordance with ss 42 and 97 of the Justices Act 1902 (WA).  Save for one, each complaint alleges that the appellant had contravened a provision of the Companies (WesternAustralia)Code (ss 229, 412 or 570) while an officer of BRL, BCHL or a subsidiary of one of those companies.  The alleged offences are said to have been committed between 28 August 1988 and 29 May 1989.  The remaining complaint alleges that the appellant had conspired with others to defraud the companies and their shareholders contrary to s 412 of the Criminal Code (WA).  The co-operative scheme laws, of which the Companies Codes of the various states and territories formed a part, were repealed in 1991 and replaced, except in certain limited respects, by the Corporations Law and other legislation: in Western Australia see s 85 of the Corporations (Western Australia) Act 1990 (Corporations Act).  In consequence an offence against the Companies Code is now taken to be an offence against the Corporations Law: in Western Australia see s 94(4) and (5) of the Corporations Act.

Section 1316 of the Corporations Law provides:

“Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister’s consent, at any later time.”

Acting on the belief that in the absence of the consent of the Minister administering the Corporations Law (see s 91(3) of the Corporations Act and the definition of Commonwealth Minister in s 80A of the Corporations Law), s 1316 was a bar to the laying of the informations alleging contraventions of the Companies Code the complainant procured that consent on 5 January 1995. 

On 24 December 1996 the appellant applied to the Supreme Court of Western Australia for orders calling upon the respondents to show cause why a writ of certiorari should not be issued to remove the decision of the Minister to grant that consent into the Supreme Court to be quashed and why a writ of mandamus should not be issued requiring the respondents to reconsider that decision according to law.  That application was transferred to the Federal Court of Australia presumably pursuant to s 6 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) : see also s 44 of the Corporations Act.  In the Federal Court the appellant also sought the grant of a declaration that the consent was void and of no effect.  The appellant unnecessarily relied upon s 39B of the Judiciary Act 1903 (C’th) to found his claim for relief in the Federal Court.

The appellant challenged the validity of the consent on two bases, viz. (a) that the Minister had abused the discretion conferred by s 1316 by failing to take into account considerations which he was bound to take into account in making his decision and (b) that the appellant was denied procedural fairness in that he had not been informed that the Minister had been requested to give his consent to the laying of the complaints and was not given the opportunity to make submissions to the Minister why that consent should not be given.

The application was heard by Moore J.  His Honour found that there was no evidence from which it could be inferred that the Minister had failed to take into account any relevant matter;  no reasons for the decision had been given so the appellant’s task in making out the ground was indeed a difficult one.  His Honour also found that the Minister was not obligated to accord procedural fairness to the appellant.  Accordingly, his Honour dismissed the application with costs.

In this appeal from the decision of Moore J it will only be necessary to consider whether the Minister was required to allow the appellant an opportunity to make representations.  When dealing with that issue we will discuss the matters that the Minister must take into account in exercising the power conferred by s 1316.

Before turning to consider those issues there is a preliminary matter that must be determined.  The respondents contend that on its proper construction s 1316 does not have the effect of imposing a time within which a prosecution for an offence must be commenced.  Their submission is that the effect of the section is merely to extend to five years the time within which a proceeding may be commenced if there is a law (presumably a statute) that requires the prosecution to be instituted within a shorter period. 

The foundation for this submission is that the particular offences with which the appellant has been charged are triable on indictment, and at common law, where a time is not limited by statute, a prosecution may be commenced at any length of time after the offence.

For well over a century now CompaniesActs have created various offences.  Some have been punishable by the imposition of a pecuniary penalty and others by the imposition of such a penalty or a term of imprisonment.  In some cases both a fine and imprisonment may be ordered.  On occasion the legislation has specified which of the offences it created were indictable and which were punishable on summary conviction; that is where there was to be no trial by jury but by justices of the peace, a procedure which Blackstone regarded as a threat to the admirable system of criminal law developed by the English courts: see Blackstone’s Commentaries on the Laws of England (17^th ed) (1830) Bk 4 Ch 20.  For example, under the Companies Codes offences punishable by a monetary penalty or by imprisonment for not more than six months were punishable summarily and offences punishable by imprisonment exceeding six months were punishable on indictment: see s 35 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Codes.  Now however the Corporations Law makes no provision for which offence is triable summarily and which is triable on indictment.  The matter is dealt with by the general laws of each jurisdiction. 

There was a difficulty with offences that could only be dealt with in a summary way.  Legislation that regulated proceedings in petty sessions often provided that a summary offence was only triable within a relatively short period after the offence had been committed.  For example, in Victoria the Justices Act 1928  provided for that period to be one year.  To overcome this problem the Companies Act then in force (the Companies Act 1938) was amended in 1955 by the addition of the following sub-section to s 383:

“(2)     Notwithstanding anything in any Act proceedings for any offence against this Act may be brought within the period of three years after the commission of the alleged offence or, with the consent of the Attorney-General, at any later time.”

By 1961 each state other than New South Wales had added a similar provision to its Companies Act.  In New South Wales and the two territories a somewhat different provision was adopted.  There the provision was limited in its operation to proceedings for an offence which was punishable on summary conviction: see also s 442 of the Companies Act 1948 (U.K.).  However, with the co-operative scheme legislation that was enacted in 1982 the Victorian model was adopted save that the period of one year was extended to three years:  see s 34 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Codes.

The respondents argue that the language of s 1316, conformably with its history, only permits of the construction that it empowers the commencement of criminal proceedings that might otherwise be barred but it cannot be construed as requiring a criminal proceeding to be commenced within any particular period.

This view is not one that has been accepted by textbook writers.  In Wallace & Young “Australian Company Law and Practice”, the leading text on the uniform Companies Acts of 1961, s 381(2), the antecedent of s 1316, was taken to impose a time limit for the prosecution of all offences created by those Acts.  In HAJ Ford, “Principles of Company Law” (5^th ed) at para 2228 the same position was said to apply in relation to the co-operative scheme laws and in HAJ Ford and RP Austin “Ford’s Principles of Corporations Law” (6^th ed) at para 2228 the same was said to be true under the Corporations Law. 

The respondents’ submission is also inconsistent with the cases: see e.g. Karounos v Flavel (1984) 75 FLR 46; Re Magistrates Court at Melbourne; ex parte Slater (1984) 9 ACLR 713; Kovess v Director of Public Prosecutions (C’th)  (1997) 74 FCR 297 at 304.  In Nicol v Attorney General for the State of Victoria [1982] VR 353 at 360 the Full Court of the Supreme Court of Victoria said of s 382(2) of the Companies Act 1961 that it “is both a limiting and empowering section, and entitles the Commission or any other person with the Minister’s written consent to bring proceedings within three years or at any later time, with the consent of the Minister”.

Even if there had been an absence of authority on the matter our own view is that the respondents’ construction of s 1316 is inconsistent with the language of the provision.  The main clause in the sentence is “proceedings for an offence against this Law may be instituted within the period of five years after the act or omission alleged to constitute the offence”.  It is clear enough that this means that a proceeding can only be instituted within that five year period.  The qualification is that a proceeding may be instituted at a later time if the Minister gives his consent.  The subordinate clause “despite anything in any other law” is a reference to any law, whether common law or statute, that is inconsistent with the requirement that a prosecution must be commenced within five years.  A law that requires a prosecution to be instituted within a period less than five years is an inconsistent law.  So also is a law that permits a prosecution to be commenced after five years from the date of the commission of the offence.  There is no reason to limit s 1316 to the case where there is a statute that requires a prosecution to be commenced within five years of the commission of the offence.  That would involve an impermissible reading down of the subordinate clause.  In other words, the Corporations Law (and earlier Companies Acts) both creates an offence and fixes the time within which the prosecution for that offence must be commenced notwithstanding that under the general laws of a state or territory the time for the prosecution of offences may be different. 

Accordingly, the complainant was correct in proceeding on the basis that the Companies Code charges could not be laid against the appellant unless the Minister gave his consent under s 1316. 

The more difficult question, and the one to which we now turn, is whether, before granting that consent, the Minister was required to accord to the appellant procedural fairness; in this case a right to be heard before the consent was given (audi alteram partem). 

A criminal proceeding will commence upon the preferring of an indictment or the laying of an information against or on the arrest of an accused person; James v Robinson  (1963) 109 CLR 593 at 606; R v Rogerson (1991-1992) 174 CLR 268 at 276, 303-4.  It is generally accepted that a decision to commence a criminal proceeding is not a reviewable decision: Wiseman v Borneman [1971] AC 297 at 308; Gouriet v Union of Post Office Workers [1978] AC 435 at 487-488, 506.  The reasons for this were explained by the High Court in Barton v R (1980) 147 CLR 75 where the court was required to consider whether the decision by the Attorney-General to present an ex officio indictment was reviewable.  First, the function of the Attorney-General in commencing a prosecution is one that otherwise was performed by the grand jury whose decisions were not subject to review.  Second, it is undesirable that a court whose ultimate function is to determine the accused’s guilt should become too closely involved in the question whether the prosecution should be commenced. Third, the court has inherent power to prevent an abuse of process and thus can consider whether a prosecution should be permitted to continue.  Finally, the administration of justice does not require such a decision to be reviewable because the court has power to ensure that an accused person is fairly treated. 

Two recent developments in this area should be noticed.  The first is that in Smiles v Commissioner of Taxation (1992) 37 FCR 538 a Full Court of the Federal Court held that a decision to commence a prosecution is a reviewable decision.  The Full Court arrived at this conclusion in the absence of argument and on the concession of the respondents.  It seems to us that Smiles is inconsistent with Barton and the other cases we have mentioned and cannot be regarded as good law. 

The second development is that there are now a number of decisions that have held that a decision to commence a prosecution made under a Commonwealth enactment is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act); see e.g. Newby v Moodie (1988) 83 ALR 523; Wouters v Deputy Commissioner of Taxation (1988) 84 ALR 577.  We will assume it to be correct that the ADJR Act has brought about a fundamental change to the type of decision that is capable of review so that a decision to prosecute may now be reviewable.  This would require the conclusion that a decision to prosecute is relevantly a “decision” that is capable of review under the ADJR Act.  It must be remembered that the only decisions that are capable of review under that enactment are ultimate or operative determinations and not expressions of opinion: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337-338.  However, the fact that a decision to prosecute might be reviewable if made under a Commonwealth enactment does not alter our conclusion that such a decision is not reviewable under the common law.

Because a decision to commence a prosecution is not a reviewable decision the decision-maker can be under no duty or obligation to accord procedural fairness to the accused before the decision is made.  The law is concerned with commands; that is duties in respect of which there is some sanction either by the enforcement of the duty or by some other appropriate redress: see W E Hearn “Legal Duties and Rights” (1883) esp Chs 1 and 8; compare N MacCormick “Legal Rights and Social Democracy” (1982) Ch 8.  It may be that if a decision to prosecute is reviewable under the ADJR Act the decision-maker has become obligated to accord procedural fairness when no such duty existed before the enactment.  This is a very difficult question indeed and one which fortunately we need not determine.

There is another category of case that is concerned with a prosecution that should be mentioned.  From time to time a statute will provide that a prosecution for a particular offence cannot be instituted without the leave or consent of some person such as an Attorney-General or a judicial officer such as a magistrate or a judge.  The requirement that there be a consent to a prosecution is to prevent the institution of vexatious proceedings and it does not impose an obligation on the person giving that consent to determine whether there is a prima facie case to be prosecuted: see e.g. Goldsbrough & Co v MacMahon (1887) 8 NSWR 118 a case that was concerned with a consent to institute a prosecution for perjury: see also Berwin v Donohue (1915) 21 CLR 1 which was concerned with a consent to a prosecution under the Trading with the Enemy Act 1914 (Cth): see also Commissioner of Police v Reid (1989) 16 NSWLR 453. 

It has been held that a decision of this character does not require the observance of the rules of procedural fairness.  The reason was explained by Meagher JA in Reid, and it is a reason with which we respectfully agree, namely that if a decision to commence a prosecution does not require the giving of a hearing neither can the making of a similar and anterior decision.

We can now turn to the decision made by the Minister under s 1316.  First, we should say something about the nature and effect of a decision under that section.

A decision taken under s 1316 has little in common with a decision to commence a prosecution or a decision to consent to the commencement of a prosecution.  In the first place the effect of a decision under s 1316 is to take away from an accused the ability to plead an absolute answer to a criminal prosecution.  It is a defence that was described as a vested right by Zelling J in Karounos, supra, at 70 and as an immunity by Jenkinson J in Bond v Minister for Justice (1992) 72 FCR 505 at 512.  But howsoever it is to be described, from the point of view of the accused it is a very important right or immunity.  On the other hand, a decision to commence a prosecution or to consent to the commencement of a prosecution does not affect any right of the accused.

Secondly, the matters that fall for consideration when making these decisions are different.  In the case of a decision to prosecute the decision-maker must decide whether there is a prima facie case.  When a consent to a prosecution is required the decision-maker is only concerned to determine whether the proposed prosecution is frivolous or vexatious but is not otherwise concerned with the merits of the case.

Section 1316 does not set out what the Minister must take into account in determining whether to consent to a prosecution out of time.  That does not mean that the Minister has a discretion that is “almost without definition” (see e.g. Swan Hill Corporation v Bradbury (1937) 56 CLR 746).  The scope and purpose of s 1316 does indicate the type of matters that should be considered.

What the Minister must decide is whether it is reasonable to allow the prosecution to proceed out of time.  This will involve a consideration of two principal issues.  The first is the reason the prosecution was not commenced within the five year period.  Here it will be necessary for the Minister to consider the conduct of those investigating the alleged offence and whether that investigation was conducted with due diligence.  If no sufficient reason for delay is shown then it would not be expected that a consent to prosecute will be given.  The second issue is whether the grant of consent will unfairly prejudice the accused.  The grant of consent will inevitably cause some hardship to the accused.  But his position may be such that it would be unreasonable to require him to face a late prosecution.  For example, an accused may be significantly disadvantaged in facing a trial many years after the date upon which the alleged offence was committed.  Material witnesses may have died or may not be found. Critical documents may have been lost or destroyed.  There may be other circumstances personal to the accused that would make a late prosecution harsh or unjust. 

There are other issues that should also be taken into account.  The Minister must consider the seriousness of the offence with which the accused is to be charged and whether the public interest would be served by its prosecution.  The Minister should also have regard to the harm, if any, that has been caused by the commission of the offence. 

However, notwithstanding authority to the contrary (Buffier v Bowen (1988) 32 A Crim R 222) we do not regard it to be the Minister’s function when considering whether to grant his consent that the Minister must be satisfied that there is a prima facie case against the accused.  The Corporations Law has limited the class of person who may institute a criminal proceeding. A prosecution may be commenced by the ASC, a delegate of the ASC, or a person authorised by the Minister: s 1315.  It is one or other of those persons who must decide whether there is a prima facie case.  Thus it is not to be supposed when the Minister is considering whether a prosecution should be instituted out of time that the Minister is required to determine whether there is a prima facie case to be prosecuted.  When asked to give his consent to a prosecution the Minister is entitled to assume that the person authorised to institute the prosecution has decided or will decide that a prima facie case does exist before the prosecution is instituted.   To require the Minister also to consider whether there is a prima facie case will in many cases place an onerous obligation on the Minister.  The offences created by the Corporations Law are many and varied.  Not uncommonly they will arise out of a complex series of transactions that have occurred over a substantial period of time and an investigation in respect of them may have taken many years to complete.  If the Minister was required to review this material to see whether there is a prima facie case there will be further delay in the institution of proceedings to the potential disadvantage of the accused. 

Nor do we think that it is necessary for the Minister to consider whether the institution of a prosecution is vexatious.  Section 1315 is designed to ensure that frivolous proceedings are not instituted and that the enforcement of the Law is in respectable hands.  If the Minister does become aware of circumstances that show that a prosecution is frivolous or vexatious then of course he would not grant his consent under s 1316.  However, we do not regard it as part of the Minister’s function to go over the prosecution case and form a view about the merits of the case before the power under s 1316 can be exercised. 

We can now turn to consider whether the Minister was required to accord the appellant a right to be heard before granting his consent.  It is common ground that if the Minister was obligated to do so he was in breach of that obligation. 

For many years it was accepted that it was only when the exercise of a power, usually a statutory power, could affect the legal rights of a person that the decision-maker was bound to hear him before the power was exercised: Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 at 187; R v Electricity Commissioners; Ex parte Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 171 at 205; Twist v Randwick Municipal Council (1976) 136 CLR 106.

In 1969 this narrow “rights based” foundation for the application of the rules of procedural fairness came under attack by Lord Denning in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149.  Schmidt was an alien student of scientology with a permit to study in the United Kingdom.  He sought an extension of that permit to complete his studies.  The Home Secretary refused the application without giving Schmidt a hearing.  In confirming the decision of the Home Secretary Lord Denning said obiter at 170:

“The speeches in Ridge v Baldwin [1964] AC 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations.  It all depends on whether he has some right or interest or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.”

The notion that a legitimate expectation might impose an obligation on an administrative decision-maker to afford a person a hearing was accepted but not applied by the High Court in Salemi v MacKellar (No. 2) (1977) 137 CLR 396 and Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487.  However, it was applied in FAI Insurances Ltd v Winneke (1982-1983) 151 CLR 342.  There the appellant had been granted a license to act as a workers’ compensation insurer.  The license came up for renewal.  The appellant had no legal right to obtain that renewal.  On the other hand the appellant had held the licence for many years and had conducted a profitable business that would be at an end if the license was not renewed.  The High Court held that the appellant had a legitimate or reasonable expectation that its license would be renewed unless some good reason existed for refusing it.  Accordingly, it was entitled to a hearing before the renewal was refused.  In the course of his reasons Mason J said at 360:

“The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power ... The application of the rules is not limited to cases where the exercise of the power affects rights in the strict sense.  It extends to the exercise of a power which affects an interest or a privilege ... or which deprives a person of a ‘legitimate expectation’, to borrow the expression of Lord Denning MR in Schmidt v Secretary of State for Home Affairs, in circumstances where it would not be fair to deprive him of that expectation without a hearing.”

The case is important for two reasons.  First, it clearly established that the rules of procedural fairness would be applied without the need to identify a strict legal right that required protection;  a reasonable expectation would provide the justification for the imposition of the obligation.  Secondly, it also established that the application of the rules did not in any event depend upon the protection of a strict legal right.  

In FAI Insurances the High Court did not make clear when an “expectation” would arise.  In Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1 at 20 Mason CJ mentioned some of the circumstances that could give rise to an “expectation” such as the giving of assurances, the making of a representation, the existence of a regular practice, the consequences of the denial of the benefit to which the expectation relates and the satisfaction of statutory conditions.  However, as Mason CJ pointed out this was not intended to be an exhaustive list. 

Since these cases were decided a number of justices of the High Court have suggested that all administrative decision making must be undertaken in accordance with procedural fairness.  For example, in Haoucher v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 648, in a passage cited with approval in Annetts v McCann (1990) 170 CLR 596 at 598, Deane J said at 653:

“[T]he law seems to me to be moving towards a conceptually more satisfying position where common law requirements and procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision making ... and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of a practical content, if any, of those requirements in the circumstances of a particular case.”

In Quin the Court was concerned with the position of magistrates whose office had been abolished when the Court of Petty Sessions was replaced by the Local Court.  Some of the magistrates on the old court applied for but were refused appointment to the new court.  Quin was one such magistrate.  He argued that he had a legitimate expectation that his application for the new position should be considered without reference to the applications made by others seeking a position on the new court.  The High Court was divided on the result.  In his reasons for judgment Dawson J said at 57:

“Even where there is no legitimate expectation, and no promise or assurance has been given, fairness may require there to be a hearing.  In Kioa v West the adult appellants were entitled to be heard before deportation orders were made against them, not because they had any legitimate expectation that they would be allowed to remain in Australia, but because it was only fair that they should have the opportunity to deal with matters prejudicial to them which had been put to the Minister’s delegate.”

In Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 after referring to Kioa and Annetts McHugh J said at 311-312:

“Those cases decided that, where a statute empowered a public official or tribunal to make an administrative decision that affects a person, then, in the absence of a contrary legislative indication, the critical question is not whether the doctrine of natural justice applies but ‘what does the duty to act fairly require in the circumstances of the particular case?’” [ Kioa (at 585)].  In Haoucher [at 653], Deane J expressed the view that the law seemed “to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making”.

I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials.  In the absence of a clear contrary legislative intention, those rules require a decision-maker ‘to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it’: Kioa [at 587].”

However, it is by no means clear that this broad approach will gain general acceptance.  The view that all administrative decision making must involve fair procedures is not without its critics.  Three main reasons are given against the adoption of a general notion of fairness.  First, it is said that it is excessively hazy and allows for inconsistent decisions.  Secondly, it is said that a doctrine of fairness replaces a predictable body of law with a new concept which is unpredictable for both the decision-maker and those affected by the decision.  Finally, it is said that entirely inappropriate procedural requirements will be imposed on decision-makers with the consequence that efficient and effective decisions will be that much harder to achieve: see generally JM Evans, “Some Limits to the Scope of Procedural Fairness” (1973) 36 Mod.L.R. 439; JF Northey, “Pedantic or Semantic” [1974] NZLJ 133; GDS Taylor, “The Unsystematic Approach to Administrative Law” (1973) 5 NZULR 373; GDS Taylor, “Natural Justice: The Modern Synthesis” [1974-1975] 1 MonLR 258; D Mullan, “Fairness: The New Natural Justice Question?” (1975) 25 University of Toronto Law Review 281.

While there is doubt whether all administrative decisions must be undertaken in accordance with procedural fairness there are statements by a number of justices in the High Court that indicate that the law may have developed to the point where the common law duty to act fairly will apply whenever the exercise of a power requires a consideration of circumstances personal to the individual and the decision, if adverse to the individual, will have serious consequences: see Kioa, supra, at 587, 619; Quin; supra, at 57; Haoucher, supra at 660; Teoh supra at 311-12.

This appeal can be disposed of without resort to the doctrine of legitimate expectations and without resort to any general theory of fairness in administrative decision-making.  In this case the appellant had a defence to a criminal prosecution , a defence that was conferred by statute.  This defence was in the nature of a legal right although speaking strictly it should be regarded as an immunity.  The right or immunity was a conditional one.  It would be lost if the Minister granted his consent to a prosecution out of time.  Even according to traditional theory the Minister could not take away this right or immunity without giving the appellant an opportunity to be heard unless the legislation manifested a clear intention that no such duty existed.

If it were necessary for the appellant to call in aid a legitimate expectation that he would be given a hearing we would reach the same conclusion.  The appellant was surely entitled to expect that if his immunity from prosecution was to be removed for some good reason he would be given the opportunity to comment.  The reason for this should be evident.  The decision will put him at risk of a conviction for serious criminal offences a risk that he did not face before the decision was made.  We consider it clear that just as FAI Insurances could not be deprived of its business without a hearing the appellant could not be deprived of his immunity without a hearing: see also Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 408.

The conclusion that we have reached is inconsistent with certain of the reasoning of the Full Court of the Supreme Court of Victoria in Nicol.  There the Full Court was required to consider whether a decision to consent to a prosecution under s 318(2) of the Companies Act 1961 was a decision that could be reviewed under s 3 of the Administrative Law Act 1978 (Vic) which provides:

“Any person affected by a decision of a tribunal may make application ... to the Supreme Court or a judge thereof for an order calling on the tribunal or the members thereof ... to show cause why the same should not be reviewed.”

The Full Court held that the grant of consent by the Minister was not a decision for the purposes of s 3 nor was the Minister a tribunal within the meaning of that section.  In the course of arriving at its decision the Full Court said that s 381(2) did not give any right or confer any immunity upon a person after the time had passed within which a prosecution for an offence against the Companies Act may be instituted.  No reason was given for that proposition and with respect we disagree with it.  In our view s 1316 of the Corporations Law(and s 381(2) of the Companies Act 1961 before it) plainly confers an immunity from prosecution albeit a conditional immunity.

The Full Court also held that an accused did not have a legitimate expectation to be heard before a consent to a prosecution was given.  The Full Court reached this conclusion after a review of the cases that considered the circumstances in which an “expectation” would arise and concluded that those cases were “to be understood in this confined way, namely that from what has gone before the applicant may legitimately expect that his application will not be refused out of hand, will be dealt with fairly, and that, if it is to be contemplated that it may be refused, he will be given an opportunity to be heard after knowing what he has to meet.”:  see [1982] VR at 357.  Whether that statement represented a correct summary of the law when Nicol was decided need not be determined.  What is clear is that it no longer can be regarded as correct.  The circumstances in which a legitimate expectation that a person will be heard can arise are many and varied and need not arise from the past conduct of the decision-maker.  So much is clear from the judgment of Mason CJ in Quin referred to above:  see also de Smith, Woolf and Jowell, “Judicial Review of Administrative Action” (5th ed) at paras 8-042 to 8-044; Save the Showgrounds for Sydney Inc. v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33.

There are two submissions made by the respondents that require separate comment.  The first is that the cases that have held that a decision to prosecute and that a consent to a prosecution are not judicially reviewable are indistinguishable from a decision under s 1316 and therefore it should be held that the latter decision is also an unreviewable decision.

This contention must be rejected.  As we have pointed out the foundation for the conclusion that a decision to prosecute is not reviewable is that the criminal law has adequate processes at its disposal to ensure that an accused will receive a fair trial and will not be subjected to a vexatious prosecution.  The position is different if a time limitation is removed.  Once lost the accused will never be entitled to rely on the defence.  There is no procedure that can restore the defence save for the quashing of the decision that has brought about that position.  Further, there is little that is analogous between a decision to prosecute and a decision that will deprive an accused of a defence.  A decision to prosecute does not affect a right or interest at all.  But when a bar to a prosecution is no longer available a legal right or immunity has been lost.

The second submission is that s 1316 should be seen as part of an entire process in the course of which a judicial hearing is provided in which there is an opportunity to challenge the validity of any part of that process.  Hence it is said that by necessary implication the obligation to accord procedural fairness is excluded.

It is clear that there are situations where procedural fairness need not always be given if at some point in the decision-making process an opportunity is available for a party to present his case: see South Australia v O’Shea (1987) 163 CLR 378 at 389; Annetts v McCann, supra; Johns v Australian Securities Commission (1993) 178 CLR 408.  This is not an inflexible principle.  In certain cases a person may be entitled to an opportunity to be heard even though it is at a preliminary stage of a hearing or enquiry: Rees v Crane [1994] 2 AC 173.

Here however the merits of the decision under s 1316 will not be considered during the course of the criminal trial.  It is true that in the criminal trial it may be possible to challenge the validity of the decision but that is not the same as being given an opportunity to be heard on the merits of that decision.  The principle established by cases such as O’Shea, Annetts and Johns can have no application to a situation where there will be no adequate hearing that would cure a procedural deficiency committed by the Minister.

It is now necessary for us to consider whether the appellant should be granted the relief that he seeks: it is accepted that declaratory relief will suffice and that it is not appropriate for writs of certiori or mandamus to issue.

The respondents put forward two reasons why relief should be refused.  The first is the delay of the applicant in bringing his claim and the second is that a civil court will not in the absence of exceptional circumstances allow its processes to interfere with a criminal trial.

There is no doubt that the appellant has been guilty of delay.  He became aware that the Minister had made his decision  in January 1995.  In April 1995 the appellant commenced proceedings in the Federal Court challenging the validity of the decision.  Those proceedings were discontinued in October 1995.  Then in November 1996 the appellant applied to the Administrative Appeals Tribunal to have the decision set aside.  That application was discontinued when the present proceeding was instituted in the Supreme Court of Western Australia.

Courts have always taken the view that there is a need for a speedy determination as to whether a decision is valid in public law.  The interests of good administration and of third parties who may be indirectly affected by the decision are the reasons: O’Reilly v Mackman [1983] 2 AC 237 at 284; Carswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738.  This has led to the adoption in many jurisdictions of rules that require proceedings for judicial review to be commenced within a short period after the decision has been made: in England see O 53 of the Rules of the Supreme Court; in Victoria see O 64 r 3; see also s 11(3) of the Administrative Decisions Judicial Review Act 1977 (Cth).

In this case we are not concerned with the impact of the decision on third parties: it cannot have any such effect.  We can also ignore any adverse effect on good administration for the reason that the respondents accept that the appellant is free to challenge the decision at his criminal trial.  However, even if this decision could adversely affect third parties or impair good administration, it is not a decision that should be allowed to stand once it is shown that it was irregularly made.  The decision has serious consequences for the appellant.  It has allowed charges to be laid against him which, if proved, could result in his imprisonment.  Our system of justice should not permit that to occur unless the decision pursuant to which the charges were laid is a valid decision.

Turning to the issue of fragmentation we accept, as we must, that the courts have repeatedly indicated that the fragmentation of a criminal trial by way either of leave to appeal or judicial review is highly undesirable and will only be allowed in exceptional circumstances.  This point has been made by the High Court in many cases and without citing all of them we refer to: Sankey v Whitlam (1978) 142 CLR 1; The Queen v Iorlano (1983) 151 CLR 678; Clyne v Director of Public Prosecutions (C’th) (1984) 154 CLR 640; Yates v Wilson (1989) 168 CLR 338; Vereker v O’Donovan (1988) 6 Leg.Rep.SL3; Beljajev v Director of Public Prosecutions  (1991) 173 CLR 28; Elliott v Seymour (1993) 119 ALR 1; Coco v Shaw (reasons for refusing special leave, unreported, High Court of Australia, 26 June 1991); Re Rozenes; ex parte Burd (1994) 68 ALJR 372; Parker v Taylor (1994) 68 ALJR 496.  On the other hand, there are many instances where a court has reviewed a decision rather than permitting the matter to be left to the trial judge of the criminal proceeding.  Again without being exhaustive the cases include Beneficial Finance Corporation Ltd v Australian Federal Police (1991) 103 ALR 167; Parker v Churchill (1985) 9 FCR 316; The Queen v Tillett; ex parte Newton (1969) 14 FLR 101; Lego Australia Pty Ltd v Paraggio (1994) 124 ALR 225; Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473; George v Rockett (1990) 170 CLR 104; Freeman v Roberts (1990-1992) 37 FCR 399.

The submission that the appellant should be required to challenge the validity of the Minister’s decision at his criminal trial is to say the least a curious one in the circumstances of this case.  As we have mentioned the applicant is a Polish citizen.  He is presently living in Poland.  Extradition proceedings have been commenced to have the appellant brought to Western Australia to face a committal in respect of the charges laid against him.  The ability of the appellant to challenge the decision at a criminal trial will depend upon the success of the application for extradition unless he voluntarily returns to the jurisdiction.  In our view it would be unreasonable to allow the authorities to rely upon charges that should not have been instituted as a basis for having the applicant extradited to this country. 

For the foregoing reasons we are of the view that the appeal should be allowed, that the orders made by Moore J should be set aside and that in lieu of those orders there be a declaration that the consent given by the Minister on 5 January 1995 is void.  The appellant should have his costs of the appeal and of the hearing below.

Associate:

Dated:              6 July 1998