CATCHWORDS Administrative Law - Judicial review - Decision of stipendiary magistrate in committal proceedings - Validity of reg. 42 of the Banking (Foreign Exchange) Regulations - Same offence triable summarily or upon indictment ~- Different maximum penalties - Whether reg. 42 "prescribes" a penalty. Acts Interpretation Act 1901, ss. 42, 42 Administrative Decisions (Judicial Review) Act 1977, Banking Act 1959, ss. 39, 70 Crimes Act 1914, s. 21 Banking (Foreign Exchange) Regulations regs. 40, 42 Ss. PETER LEOPOLD CLYNE v. EARDLEY MURRAY SCOTT (S.M.) and PAUL JAMES HOLDING N.S.W. No. G407 of 1983 CORAM: Bowen C.J., McGregor and Sheppard JJ. 8 March 1984 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G407 of 1983 ) GENERAL DIVISION ) On Appeal from_a_single judge of the Federal Court of Australia BETWEEN PETER LEOPOLD CLYNE Appellant AND EARDLEY MURRAY SCOTT (S.M.) First respondent AND PAUL JAMES HOLDING Second respondent ORDER JUDGES MAKING ORDER Bowen C.J. and McGregor and Sheppard JJ. 8 March 1984 DATE OF ORDER WHERE MADE Sydney THE COURT ORDERS THAT 1. The appeal be dismissed. 2. The appellant pay the respondents' costs. IN_THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G407 of 1983 ) GENERAL DIVISION ) On Appeal from_a_ single judge of the Federal Court of Australia BETWEEN PETER LEOPOLD CLYNE Appellant AND EARDLEY MURRAY SCOTT (S.M.) First respondent AND PAUL JAMES HOLDING Second respondent CORAM: Bowen C.J. and McGregor and Sheppard JJ. DATED: 8 March 1984 REASONS FOR JUDGMENT THE COURT: This appeal from a single judge of the Court raises the question of the validity of reg. 42 of the Banking (Foreign Exchange) Regulations. At first instance the appellant argued a number of other matters but none of these was pursued before us. It is common ground between the parties that if the regulation is invalid, as the appellant contends it is, the charge brought against him under reg. 40 of the regulations is bad and must be dismissed. The proceedings before the learned primary judge were an application pursuant to s.5 of the Administrative (Judicial Review) Act 1977 for the review of one or more decisions said to have been made by a magistrate (the first respondent) in the course of committal proceedings. The committal proceedings were conducted for the purpose of determining whether the appellant should he committed for trial on a charge alleging a breach of reg. 40. Since the decision of the learned primary Judge the appellant has been committed for trial, but that circumstance makes no difference to the argument of the parties nor to the outcome of the appeal, subject to there being the need, if the appellant should succeed, for different orders from those which would have been made had he succeeded at first instance. Although the proceedings in which the decisions were made were committal proceedings, no submission was made to us on behalf of the second respondent, who is the informant, that the proceedings ought not, in the exercise of the Court's discretion, be entertained; cf. Lamb v. Moss (1983) 49 A.L.R. 533. The matter was mentioned by counsel for the second respondent but not pressed. We have therefore not considered the question of discretion. The regulations have been made pursuant to the Banking Act 1959. Section 39 confers extensive power upon the Governor-General to make regulations not inconsistent with the Act and in accordance with the section. The particular provisicn of s.39 which is relevant is para. (2)(q). It is as follows:- "39.(2) The regulations authorized to be made by this section are regulations (being regulations with respect to matters with respect to which the Parliament has power to make laws) making provision for or in relation to - (q) prescribing penalties not exceeding a fine of $100,000, or imprisonment for a period not exceeding 5 years, for offences against the regulations made under this section;" Regulation 42, the validity of which is in question is, so far as relevant, as follows:- "42.(1) A person shall not contravene or attempt to contravene, or fail to comply with, any of the provisions of these Regulations. Penalty - (a) if the offence is prosecuted summarily - a fine not exceeding One thousand dollars or imprisonment for a term not exceeding six months; or (b) if the offence is prosecuted upon indictment - a fine not exceeding One hundred thousand dollars or imprisonment for a period not exceeding five years." Regulation 40 pursuant to which the appellant has been charged was also made pursuant to s.39 of the Banking Act. It provides as follows:- "40. A person shall not make - (b) to any Commonwealth officer; (c) to any officer of the Bank or of an agent of the Bank; or (d) to any person to whom application is made for the issue of a money order payable outside Australia, any statement, whether oral or in writing, relating to any act, transaction, matter or thing to which any provision of these Regulations applies, which he knows to be untrue, or which is misleading, in any particular, or which is made by him without his having first made proper inquiries to ascertain the truth thereof." The only other provision of the legislation to which it is necessary to refer is s.70 of the Banking Act. That section, so far as material, is as follows:- "70.(1) Subject to the next succeeding sub- section, proceedings for an offence against this Act or the regulations shall not be instituted without the consent in writing of the Treasurer. (2) An offence arising - {a) under regulations made under section 39; or (b) under Part IV, may be prosecuted summarily with the consent in writing of a person authorized in writing by the Treasurer to consent to the summary prosecution of offences under those regulations or that Part." The essence of the appellant's submission is that reg. 42 does not in terms of para. 39(2){q) of the Banking Act prescribe penalties. That is said to be because, and only because, the regulation confers upon a prosecutor, and by reason of the provisions of s.70, perhaps the Treasurer, a discretion to proceed summarily or upon indictment. If the offence is prosecuted summarily, very much lower penalties are prescribed than 1£ it is prosecuted upon indictment. Thus, so the submission runs, the maximum penalty is made to depend, not on the decision of the Governor-General, as was envisaged by Parliament, but upon the decision of another person, that is the prosecutor and/or the Treasurer. Thus it follows, according to the appellant, that the Governor-General has delegated, at least in part, his power to prescribe penalties for offences against regulations made under s. 39. It has long been the case that the legislatures of the Commonwealth and the States (and other places as well) commonly make provisions whereby the same offence may be tried either upon indictment or summarily. Usually the maximum penalty which may be imposed will be less if the offence is tried summarily than is the case where it is tried on indictment. An example in the federal sphere is to be found in the provisions of the Bankruptcy Act 1966. Part XIV of that Act makes provision for offences and for the penalties which are to be imposed 1n respect of them. For instance, s. 269 creates a number of offences in relation to a bankrupt obtaining credit without disclosing his bankruptcy. Section 272 creates offences in relation to leaving Australia with intent to defeat creditors. The penalty for offences under ss. 269 and 271 is in each case imprisonment for 3 years. Section 273 provides for the trial of offences. They are punishable either on indictment or on summary conviction. Sub-section 273(2) provides that where proceedings for an offence are brought in a court of summary jurisdiction the court may either determine the proceedings or commit the defendant for trial, but shall not, if it determines the proceedings, impose a period of imprisonment exceeding one year in respect of the offences. The Banking Act expressly recognises that an offence arising under regulations made under s. 39 may be prosecuted either upon indictment or summarily; see sub-ss. 70{1) and (2) earlier set out. Yet there is no provision of s. 39 itself expressly dealing with this question. It is left to the Governor-General to prescribe the appropriate penalties which are not to exceed those mentioned in para. 39(2)(q). The regulation recognises two modes of trial. It provides different maximum penalties depending on whether offences are tried summarily or upon indictment. In neither case do the penalties exceed the maximum specified in para. 39(2)(q). In substance the regulation prescribes maximum penalties not exceeding those which are permitted and then prescribes lower maximum penalties if an offence is prosecuted summarily. Notwithstanding that the penalties are less if the offence is prosecuted summarily, the regulation nevertheless prescribes the maximum penalties which may be imposed. These do not exceed the maximum provided for in para. 39(2) (q) of the Act. Thus the maximum penalties are as specified but, if a prosecutor proceeds summarily, the penalties will be the lower ones for which the regulation provides. In our opinion reg. 42 is within the power conferred by para. 39(2)(q). The well recognised practice of providing for the same offence to be tried either upon indictment or summarily and the recognition of that practice in s. 70 of the Banking Act reinforces us in that conclusion. Before concluding we should mention ss. 42 and 43 of the Acts Interpretation Act 1901 and s. 21 of the Crimes Act 1914 upon which the appellant placed some reliance. The former sections provide that offences against any Act which are punishable by imprisonment for a period exceeding six months shall, unless the contrary appears, be indictable offences. Offences against any Act which, inter alia, are punishable by imprisonment, but not for a period exceeding six months, shall, unless the contrary intention appears, be punishable on summary conviction. Section 21 of the Crimes Act provides that a prosecution in respect of an offence against any law of the Commonwealth may be commenced, where the maximum term of imprisonment exceeds six months, at any time after the commission of the offence; where it does not the prosecution may be commenced at any time within one year after the commission of the offence. These provisions may operate to make it unlawful for a prosecutor to commence summary proceedings for an offence created by the regulations made pursuant to s. 39 of the Banking Act more than twelve months after the commission of the offence; see, however, In re Burley (1932) 47 C.L.R. 53. The fact that that may be so does not in our opinion touch the question of the validity of the regulation. If the provisions of s. 21 of the Crimes Act apply there will be a time bar in respect of summary proceedings. That is the only effect the provisions can have. In the result we are of opinion that reg. 42 is valid. The appeal is dismissed with costs. i cery ty that this and rhe 8 preceding peges are a true co>' of the reasons for jec. nent bersuy of ine Court Ut tt Cec Associate Dated § vue dy oa Sw