Foundations of Australian Law
Semester 1, 2003
Mark: 70
(a)Is Abel (A) likely to be found guilty?
Valid Act
The Act was passed during WWII, so it is unproblematic to say Act was in force and valid when A’s alleged offence was committed in Nov. 2002 √
Assumptions
It is assumed Cth had head of power under Constitution to pass law, and since it is Cth act, applies to all jurisdictions. √
Interpretation
The Act must be read as a whole and interpreted in context, Metropolitan Gas.
The issue is whether A is guilty. Purpose of Act must be established. √
Purpose
Under AIA s15AA, a construction that promotes the purpose of the Act is preferred. From reading the Act, it is clear the purpose is to prevent information about security of Cth and other countries being made available to other countries. Extrinsic material can be considered to confirm this purpose, even when provision is ‘clear on it’s face’ Commission of AFP v Cavan √
As the issue of whether A is guilty only relates to this specific Act, not eh Crimes Act, the only relevant extrinsic material that may be considered in the Minister’s 2nd reading sppech: AIA s 15AB(2)F. In the speech, during WWII, the purpose is confirme.d The minister mentions the protectin of the secuiryt of the country, way of life, and its allies through punishing people that pass on information that would jeopardise safety. √
This intention stressed by the minister to proceted the way of life is very restrictive of individual liberty – he says ‘severe punishment’. Re Bolton; Ex Parte Beane says that in this case, the Minister’s words cannot be substituted for text of law. The law does not express the intention of Minister to protect Aust., it’s ordinary meaning is only about the information being made available to others. √ Good argument
Also, extrinsiv material is not taken into account when it merely indicates a view as to the meaning of legislation in existence at the time the view was expressed Hunter Resources v Melville. The Minister’s sppeh was obviously spoken in a different political background to the one when A’s alleged offence occurred (before Gulf War II). Minister specifically talks about ‘time of crisis’. √ Yes
There two cases suggest the extrinsic material cannot be relied on too heavily, and the purpose should be just the ordinary meaning of provision (as stated before). √ good argt.
The issue of A’s guilt can be broken down into different sections:
- Did A disclose, communicate or otherwise make available by any means whatsoever information?
This may be an application of maxim ejusdem generis. The first three words suggests intentn to make available √. These key words can be checked in dictionaryState Chamber of Commerce. Discloses: reveal. Communicate: make known, disseminate, spread widely. This means the otherwise make available should be interpreted with this genus in mind.
On the facts, A. keeps the information to himself. He does not intend to revela the information. He may arguge this means he is not guilty. √
However, the maxim is relatively weak Quazi v Qzazi, and A is not likely to rely on them. The purpose will always take precedence √ in this case it is to prevent security infor being made available, which A has done through carelessness.
Likely that A. has made avail. infor. √
2. Was it info. concerning Cth security or defence?
No.
3. Was it info concerning security/defence of another country?
Check dictionary for meaning State Chamber
Security: saftely of country against espionage. Defence: defending or protection.
The msg detailed US forces’ strategy in a possible Iraq war. This is arguable the info. in the provision, as strategy is vital to US defence.Good argt.
4. Did A aquire info. directly/indirectly from Cth?
Yes, from Sgt. Buxom. √
5. Did his Act result in info being communicated or made available to another country?
By leaving the decoded message on his desk, A’s act did indeed result in the info being broadcast on radio. Other countries could probably listen in CCB airwaves? √
Even if A fulfils all the requirements of the Act, it is very likely any person working for the Cth could too. A person working in Cth defence could technically be charged with espionage too, if he tells a collegue about infor, and the college is a sply.
A is probably not the kind of person Plt intended to hold liable for espionage when it passed legislation.
Espionage defn: spying person who secretly watches or gathers information.
However as A does meet all the requiremenst of s 5 of Act, Crt will be faced with difficult decision
Probably he will be found guilty. √
(b)Is judge required to impose life imprisonment?
A’s offence occurred before the Crimes Act was in force. It is clear Plt. can pass retrospective legislations R v Kidman √ but whether this Act can operate retrospectively depends on if the provision contrains express words. The Act states it comes into force on 1 June 2003. A’s offence was in Nov. 2002, but his actual tiral is on 17 June 2003. It comes into force on this day or did it receive royal asset on this day? No, we said it comes into force on that day.
If Act received royal assetn on 1 June, judge not required to impose life sentence as there is 28 day waiting period AIA s 5(1A) NO.
If 1 June 03 is actually the 28th day after Roayl assent, the issue is more difficult. √
The provision deals with substantive law matters (increased sentencing) so presumption that is doesn’t operate retrospectively Rodway v R √ So judge probably doesn’t need to consider crimes act.
If he did, he could not use s 7 of the old Act anymore, as the new Act repreas the old one s 7 AIA but only as at that date i.e. there is not gap.
The judge would probably not want to give A a life sentence as reason discussed previously, so look for ways to reduce sentence.
Can judge use R v Mata Hari which said ‘shall be liable’ meant ‘max. period of?”
The case was a HCA case, so binding. It deals with a different Act but this Act is specifically to amend that particular section dealth with in R v Mata Hari. Likely that judge can use it to mean ‘maxium period for the term of his natural life.
But even if he could, does the long titlte of Act and the debate (extrinsic material) on the bill indicate the entire purpose of the Act is to increase penalthy? √
Long titel is definitely part of Act Amatek v Googoorewon, which clearly states purpose is to increase penalty √ Look to extrinsic material to confirm purpose s 15 AA2(h) states the official records of debates may be used to confirm meaning of provision. If the debate was recored officially (lack of facts), then it can be considered.
The AG states the Act is to tak away the discretion of judges. See discussion before about extrinsic material and restriction of individual liberty Bolton
Also, presumption that penal provision are strictly construed. The purpose is more important than this presumption of ‘last resort’ thought, Newcastle city council v GIO, and the purpose is to increase sentence. Also, the judge has obligation to impose life sentence as shown by the use of ‘shall’.
Therefore, if A is guilty of espionage, if plt. debate can be used, if purpose is more important than penal presumption, if judge obliged by ‘shall’ to impose life sentence, then judge will impose life sentence. √
Extremely well argued.