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Administration of criminal justice in a Federal system

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Address by the Attorney-General,

Senator Peter Durack, Q.C. to the - Institute of Criminology, University of Sydney

SYDNEY 19 SEPTEMBER 1979 67/79


There is obviously more than one solution to the

question how criminal justice should be administered in a federal -system and .it is worthwhile to examine briefly the solutions chosen in some other federal systems.

The Canadian Constitution vests the responsibility for criminal law and procedure in the Federal Parliament. The jurisdiction to try offences against the criminal law has, however, been vested in courts of the Provinces.

The United States Congress, like the Australian Parliament has no general power to legislate in respect of criminal law. While the Congress has express power to legislate against treason, conterfeiting of United States

securities and coin, piracy and felonies on the high sea and offences against international law, Federal criminal law extends to many other matters. Jurisdiction to try these federal offences is vested exclusively in Federal courts.

The path chosen by Australia differs again. No

power to legislate as to crime a such is vested in the Federal Parliament. But it is well established that the Commonwealth Parliament may enact penal provisions designed to secure the effective operation of Commonwealth laws and the protection of the Commonwealth and its property. In relation to federal jurisdiction, the draftsmen of the Australian Constitution, aware of the difficulties that had

arisen in the United States and the population differences of the two countries, chose a course different to that taken in the United States.

The Commonwealth Constitution provides that federal jurisdiction may be exercised by the High Court, Federal Courts created by the Commonwealth Parliament and State courts chosen to be invested with federal

jurisdiction. This has been called by the High Court the autochthonous expedient. By and large, up to this stage of the nation's development, this course has served Australia reasonably well.


Until 1914, the Commonwealth had no Crimes Act or a general criminal statute although a number of Commonwealth statutes, particularly the Customs Act 1901, made provisions for a variety of criminal offences.


A basic question arises whether there are any common law Federal offences. This question is still of interest and, in rare cases, concern, despite the passage of the Crimes Act. For instance it may well have arisen in the proceedings brought by Mr Sankey against Mr Whitlam and others in Queanbeyan Court of Petty Sessions. The

proceedings initially comprised allegation of consniracv contrary to Section 86 of the Crimes Act - clearly a Federal

offence - and a common law conspiracy to deceive the Governor-General.

The High Court in Sankey v Whitlam, held that there could be no offence on the facts alleged against Section 86 of the Crimes Act. The committal proceedings therefore were in the end concerned only with an alleged common law offence. Was that a Federal or State offence? The

answer to that question of course would determine whether the Federal or State Attorney-General was the appropriate person to file an indictment if any committal was made.

There is no clear authority on the subject, although dicta by Griffith C.J. & Isaacs J . in R. v Kidman (20CLR425) strongly support the proposition that the

Attorney-General of the Commonwealth may prosecute on indictment a,common law offence of conspiracy to defraud the Commonwealth. The possibility of other common law offences come in mind such as bribery of a public officer.

In the event the question did not arise in the

Queanbeyan proceedings, but I had formed the view that any such offence known to the law involving a Commonwealth official would be a Federal offence and indictable by the Attorney-General of the Commonwealth. This conclusion does

of course raise other difficult and important questions such as whether such an offence falls within Section 80 of the Constitution and whether a State Court of Petty Sessions would have the power to hear the proceedings. -


A considerable number and variety of offences were established by the Crimes Act 1914 but the Act is not, in the usual, sense of the expression, a Criminal Code. For instance, section 4 recognizes and applies the principles of

the common law with respect to criminal liability in relation to the offences against the Act.

Until recent years it had been thought that, where an act represented an offence against the Crimes Act and

also an offence against a State law, it might be prosecuted under either law. However, in Queen v Lowenthal : ex parte Blacklock (1974) 131 C.L.R. 338, the High Court held that the relevant provision of the Crimes Act (section 29)

operated to the exclusion of the comparable State provision.

Offences against the Crimes Act and other

Commonwealth criminal provisions are dealt with in the courts of the States (sub-section 39(2) of Judiciary Act

1903 and section 85E of the Crimes Act). Further, by section 68 of the Judiciary Act 1903 and later by section 85E of the Crimes Act, the laws of the relevant State with respect to the arrest and custody of offenders and the procedure for :

(a) their summary conviction;

(b) their examination and commitment for trial on

indictment; (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction

or out of any proceedings connected


and for holding accused persons to bail apply, so far as they are applicable, to a person who is charged in that State or Territory with a Commonwealth offence.

This system of administering federal criminal justice has, by and large, proved.satisfactory and basically remains unchanged to the present day.


The first and fundamental question is: who has the

power to initiate criminal proceedings on behalf of the Commonwealth. It seems clear, and has never been challenged that the prerogative powers exercised by the English Attorney-General in the name of and on behalf of the Crown, were transmitted to · the Commonwealth by virtue of the

Constitution. Presumably, the English Constitutional right

of a private citizen to initiate a criminal prosecution was

also transmitted, although that is now clearly established by Section 13 of the Crimes Act 1914.

It is commonly said that the Attorney-General has

the overall responsibility for the administration of

criminal justice. This is certainly true, but his powers to initiate proceedings are exercised by presentation of an indictment. Whether his prerogative powers were wider, it now seems clear that they are confined by Section 69 and 71A

of the Judiciary Act.


The actual initiation of the criminal processes in the overwhelming majority of cases is by a public official although brought in his own name. The question is unresolved whether he is doing so as a private citizen or as a

Government official. The Attorney-General1s power to control these proceedings essentially comes from his position as a member of the Government and his ability to provide the legal services necessary to pursue the prosecution.

This distinction is far from academic as I learned after a great deal of thought, study and advice in relation to the same proceedings in the Court of Petty Sessions, Queanbeyan, initiated by that well known private citizen, Mr Danny Sankey. It seemed to be widely assumed that the Attorney-General could take over the committal proceedings

in this case. How he did so was perhaps not so clear and at times I had visions of myself being expected to stride into the Court in some Cromwellian fashion and put an end to them.

I formed the very clear view that the powers, at least of the Commonwealth Attorney-General, are not so magnificent and unconfined. Apart altogether from other considerations, it would have been quite wrong for me to have asserted a power which in my opinion was highly




At the heart of the administration of criminal justice at both the Federal and State level are the Courts. The 1 store front1 of the judicial system is the Magistrates' Court.

Courts of Petty Sessions in the hierarchy of the

Australian legal system have always played a prime role.

They are the grass-roots of the legal system; they set the image in the mind of the ordinary citizen of how a court


operates. The ordinary citizen is unlikely to become involved in litigation in the High Court or the Supreme Courts but there is a better than even change that he will at some time, either as a litigant or as a witness have some

contact with the Magistrates' Courts.

The work in Courts of Petty Sessions has increased

tremendously over the last five years. They are playing an ever increasing role in the administration of both civil and criminal justice in Australia.

It is in this area of the criminal justice system

in Australia where we see real and actual co-operative federalism in action. Leaving aside the Territories, there are no Courts of Petty Sessions created by the Commonwealth Parliament to administer its criminal laws. The Commonwealth Parliament has, under section 77 of the Constitution,

invested State Courts with federal jurisdiction under the Judiciary Act and under other special Acts, such as the Crimes Act. The High Court has held that, in investing State Courts with federal jurisdiction, the Commonwealth must take

the State Court as it finds it and, accordingly, the constitution and organisation of State Courts dealing with criminal matters affecting the Commonwealth is a matter for

the States.


While the present system of distinguishing between

State and federal jurisdiction has operated reasonably well in the past, there is now a question whether, at this stage of Australia's legal and social development, there should be one judicial system in Australia. This system would be neither State nor Federal, but a system of Australian Courts

administering the total body of the law whether derived from the common law, from the statutes of a State Parliament, or from the statutes of the Commonwealth Parliament.


, The suggestion for one system of courts was

examined in considerable detail last, year by a snecialist committee of the Australian Constitutional Convention. Its recommendation was that there should be a unified system of courts to be called the Australian Courts.

This was supported by a narrow majority in the plenary session of the Constitutional Convention in Perth last year. However, I regard this proposal as futuristic and prefer to work for a co-ordinated court system which seems

to be more obtainable.


While, in general, State procedures and

evidentiary provisions are applied in the trial of persons prosecuted in State Courts for federal offences, the maximum sentence that may be imposed upon conviction is determined by Commonwealth legislation. Conditional release of a Commonwealth prisoner is governed by Commonwealth law, that is, the Commonwealth Prisoners Act 1967 and the Crimes Act. * However, it should be noted that the former Act basically

applies the relevant State law.


Since the beginning of the current decade,

successive Commonwealth Governments have seen the need, to review comprehensively the Commonwealth criminal justice system. Apart from the deficiencies that have come to light in the day to day operation of the present system,

Governments have been mindful of international developments, λ particularly in other common law countries.

A comprehensive review of the Commonwealth

® Criminal justice system has been under way in recent years.

In 1973 the Australian Law Reform Commission was established

by the Law Reform Commission Act 1973. For the purpose of today's discussion it is relevant to note section 7 of the

Act which is in the following terms :


'In the performance of its functions, the

Commission shall review laws to which this Act applies, and consider proposals, with a view to ensuring -(a) that such laws and proposals do not trespass

unduly on the personal rights and liberties and so not unduly make the rights and

liberties of citizens dependent upon ' administrative rather than judicial.

decisions; and

(b) that, as far as practicable, such laws and proposals are consistent with the Articles of the International Covenant on Civil and Political Rights.1

It is also relevant to note the requirement in section 6 of the Act that, in the exercise of its functions, the Commission should have regard for proposals for uniformity between laws of the Territories and the laws of the States.


Following the establishment of the Commission

under the Chairmanship of Mr Justice Kirby, the Commission was given its first reference for the review of the

Commonwealth criminal investigation processes. The Criminal Investigation Bill, which was broadly based on the Commission's Report, was introduced into Parliament on 24 March 1977 but lapsed with the dissolution of Parl-fament in November of that year. The Bill has attracted comments and

criticisms from a large number of individuals and organisations representing a variety of interests. It is now

being reviewed to determine what changes should be made to it to take account of those comments and criticisms.



There is a move towards reform in the area of sentencing. It should be noted that Commonwealth law does not at present - apply State law as to sentencing. The sentencing options now provided by Commonwealth law are a

term of imprisonment, a fine, conditional release and disposal of a charge without proceeding to conviction.

In the interests of uniformity, there is a need to

formulate principles and guidelines for the imposition of prison sentences. Other matters for consideration are whether there is a need to provide additional sentencing options. Accordingly, on 13 August 1978 I asked the Law

Reform Commission to examine in depth the principles involved in sentencing offenders. ·

In the examination of the principles of

sentencing, I asked the Commission to take into account :

. the costs and other unsatisfactory character­ istics of punishment by imprisonment

. the desirability of ensuring that offenders against a law of the Commonwealth receive uniform sentences

. . : whether principles and guidelines for the imposition of prison sentences should be formulated

. the interests of the public and the victims of crime, and ·

. whether existing laws providing alternatives to imprisonment are adequate.


A major task of the Inquiry will be to examine the

need for greater uniformity in sentencing. The Government feels that it is desirable that, as far as possible, people being dealt with under Commonwealth law should be treated uniformly throughout Australia.

The recommendations will take into account the

need for uniformity between the laws of the Territories and

the laws of the States.

I believe that the Report will assist greatly all those involved in the administration of criminal justice in Australia, particularly Judges and Magistrates, who are constantly being confronted by the problems inherent in

sentencing. A number of useful research papers has been issued.

Another major reform in the area of criminal

justice was effected by Commonwealth Parliament earlier this year in relation to crimes at sea. .

The desirability of reviewing the existing law relating to offences at sea was referred to by the Chief Justice of the High Court, Sir Garfield Barwick, in 1974 in the case of The Queen v Bull 131 C.L.R. 203. He observed (at

page 235) that it is inappropriate today that the power of a court in Australia to try extra-territorial offences should be derived from and be· limited by Imperial legislation. In 1977 in the subsequent case of Oteri v The Queen 51 A.L.J.R.

122, the Privy Council drew attention to a feature of the existing law in the following terms :

'It may at first sight seem surprising that

despite the passing of the Statute of

Westminister, 1931, and the creation of separate

Australian citizenship by the British National

Act 1948 (Imperial) and the Australian

Citizenship Act 1948-1973 (Commonwealth) ....


parliament in the United Kingdom when it passes a statute which creates a new criminal offence in , English law is also legislating for those

Australian passengers who cross the Bass Strait by ship from Melbourne to Launceston.1 ♦ "

The Crimes At Sea Act 1979 is designed to correct that position in situations coming within the Commonwealth's

constitutional powers. Its purpose is to apply the criminal laws of an appropriate State or Territory to, and in relation to, offences on or from Australian ships on overseas, inter-State and Territory voyages and in foreign ports, and in certain limited cases to offences on or from

foreign ships; also to apply the criminal laws of the adjacent State or Territory to, and in relation to, offences in offshore areas under Australian jurisdiction outside the

territorial sea.

A model complementary State Bill has been prepared

to deal with intra-State voyages and offences within the * territorial sea. Victoria and the Northern Territory, which

is treated as a State for purposes of the complementary scheme, have already enacted legislation based on the model Bill. The extra-territorial application of specific federal criminal laws, such as those relating to customs offences, will continue to be dealt with as now under the specific Commonwealth legislation in question, for example, the

Customs Act, and are not embraced by the present proposal.

The Crimes At Sea Act will come into operation on a date yet to be proclaimed. It is intended to bring the entire Commonwealth State legislation package into effect on

the one day.


The Standing Committee of Attorneys-General has

been looking closely at the question of parole orders. I

hope that by the end of this year we will see the


finalisation of a scheme whereby persons released on parole in one State might move to another State. This would only happen if the receiving State agrees to it. In such a case, the parole order of the sending State would be registered in

the receiving State and becomes to all intents and purposes an order of the receiving State.


Many of us engaged in the investigative and

prosecution stages of the criminal justice system tend, on occasions, to overlook the problems that arise after a person goes to prison or is released on parole. The Law Reform Commission is, as I mentioned, looking at those problems. One aspect that I feel deserves special mention

here is the issue of the inter-State transfer of prisoners.

Requests are received by my Department from time to time from Commonwealth prisoners in one State to be transferred to another State for one reason or another. Mainly, the offender wishes to undergo his sentence nearer

to his . family. The State Attorney-General and I are currently considering proposals for a scheme under which prisoners may be transferred from one State to another for rehabilitation purposes. While a number of aspects of the

scheme have yet to be settled, I have asked my Department to give the matter close attention.

In addition, the Attorneys-General are also

considering a scheme for the transfer of persons serv'ng

sentences in one State to another for the purpose of being dealt with on charges outstanding in the second State. The

establishment of such a scheme will go a long way to assist in the rehabilitation of offenders who, after being sentenced in one State, find themselves in the hopeless

position of having to wait out that sentence knowing full well that upon release they will be extradited to face the

possibility of another sentence. The problems in this area also flow through to the welfare and correctional agencies charged with the care of the prisoners involved.


Consideration is also being given to overseas arrangements for the transfer of prisoners. Preliminary negotiations have already taken place with Canada. Discussions with other countries, particularly New Zealand, papua New Guinea and the United Kingdom are contemplated and will be held when progress on an arrangement at the

inter-State level is further advanced.


My Department is currently undertaking a general

review of the Crimes Act. That task will take some time to complete. Nevertheless, should anybody with a particular interest in any aspect of the Act feel that they have a comment that could assist in that review, he or she could pass it on to my Department for consideration.


The Federal Court of Australia was established by the Federal Court of Australia Act 1976. The Court replaced the Federal Court of Bankruptcy and the Australian Industrial Court and took over some of the appellate and original jurisdiction of the High Court. Apart from its

jurisdiction in relation to offences under the Bankruptcy, Counciliation and Arbitration and Trade Practices legislation, the criminal jurisdiction of the Federal Court

forms part of the appellate jurisdiction of the Court. In. its role as the Court of Appeal from Territory Supreme Courts, the Full Court of the Federal Court functions as a court of criminal appeal. Whereas there were limitations on

the right of appeal from a conviction or indictment before a Territory Supreme Court to the High Court - an appeal as of

right lay only where a question of law only was involved - there is no limitation on the right of appeal in a criminal matter from a Territory Supreme Court to the Full Court of the Federal Court.


The powers of the Full Court of the Federal Court, in exercising the appellate jurisdiction of the Court, are

set out in sections 27, 28, 19 and 30 of the Federal Court of Australia Act. In relation to criminal appeals, section 28 empowers the Full Court to set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered. Section

28 also empowers the Full Court to increase or decrease the sentence or to substitute a different sentence in an appeal, whether by the Crown or by the defendant, against sentence. This provision is designed, in par, as a deterrent to unmeritorious appeals against sentence by a defendant.


I have raised with you some of the problems

confronting us and some of the projects we have in mind to improve the administration of criminal justice at the Federal level. .

There was a time when Federal law did not impinge as much on the lives and activities of the community and when investigation and prosecution of Federal offences was relatively uncomplicated.

In a society which is becoming increasingly complex, more sophisticated methods are being used by the unscrupulous to cheat the system. To ensure that the system can cope, Governments will not only need people who are dedicated to the enforcement of the law but also see to it

that these people have the necessary knowledge and skills and have made available to them whatever technical support

they need.

Governments must be alert to the sophisticated

schemes and not shirk from reviewing the traditional rules

regulating the system of justice. Many of the problems will

be solved only as a result of imaginative thinking inside


and outside of Government. It is to an Institute such as yours that Governments turn to for workable suggestions and solutions. I am sure we shall not be disappointed. ·




(Extracts from the address by the Attorney-General, Senator Peter Durack, Q.C.)

_ In a society which was becoming increasingly more

complex, more sophisticated methods were being used by the unscrupulous to cheat the system, the Attorney-General, Senator Peter Durack, Q.C., said today.

"To ensure that the system can cope, Government will not only need people who are dedicated to the

enforcement of the law but also see to it that these people have the necessary knowledge and skills and have made available to them whatever technical support they need.

"Governments must be alert to these sophisticated schemes and not shirk from reviewing the traditional rules regulating the system of justice," he said. '

Senator Durack was addressing a seminar conducted by the Institute of Criminology at Sydney University on the Administration of Criminal Justice in a Federal System.

The Attorney-General said that because of the way the Constitution had arranged powers between the Common­

wealth and the State, a basic question arose of whether there were any common law Federal offences.