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District Court 19 May 2006

Commonwealth DPP v Riddell

[2006] NSWDC 180

Fraud & dishonesty
CRIMINAL LAW APPEAL FALSE PASSPORT STATUTORY CONSTRUCTION CONSTITUTION FOREIGN AFFAIRS POWER.

Citation: Commonwealth DPP v Riddell [2006] NSWDC 180
Court: District Court of New South Wales
Date: 19 May 2006
Judge(s): Norrish QC DCJ

Background

The appellant was convicted in the Local Court of possessing a document purporting to be a passport issued by the "government of New Hebrides," contrary to s 9A(1)(f)(ii) of the Passports Act 1938 (Cth). The document, bearing his photograph and various visa stamps, described itself as a "New Hebrides Passport" issued in September 1997. The problem was that "New Hebrides" had ceased to exist as a political entity in 1980, when the former British-French condominium became the Republic of Vanuatu. The document had not been issued by Vanuatu or by any previously recognised administration of New Hebrides.

The appellant did not dispute possession of the document or that his photograph appeared in it. His challenge was purely legal: he argued that the offence provision could not extend to documents purporting to be issued by a government that never existed at the relevant time, and that even if it did, the Commonwealth lacked constitutional power to enact such a law.

Leave to appeal to the District Court was granted on this single charge. The Commonwealth Director of Public Prosecutions opposed the appeal and sought its dismissal.

  • Whether s 9A(1)(f)(ii) of the Passports Act 1938, properly construed, extended to documents purporting to be passports issued by a fictitious or non-existent government.
  • If so, whether such a provision was within the constitutional legislative power of the Commonwealth, including under the external affairs power.

Decision

Statutory Construction

The central statutory question was whether a document could "purport to be a passport issued by or on behalf of the government of a foreign country" when no such government existed. The Court accepted the appellant's construction: the provision required the document to purport to originate from a government of a country that existed as a real political entity. A document bearing the name of a government that had never existed, or had ceased to exist before the document's purported date of issue, could not satisfy this element of the offence. On this reading, the "New Hebrides Passport" fell outside the scope of s 9A(1)(f)(ii), and the conviction could not stand.

Constitutional Power

Despite upholding the appeal on statutory grounds, the Court went on to address the constitutional question. It concluded that the Commonwealth did have power to legislate to prohibit possession of documents purporting to be passports, regardless of whether the government named in the document existed in fact. The Court reasoned that it is the document's character as a purported passport, not its actual origins, that engages the Commonwealth's legislative concern. Regulation of such documents falls within the Commonwealth's external affairs power, and is at minimum supported by the express and implied incidental powers available under the Constitution. The constitutional issue was therefore resolved in favour of the Commonwealth, even though the appeal succeeded on the narrower statutory ground.

Orders Made

  • The appeal is upheld.
  • The finding of guilt and all consequent orders are set aside and quashed.

Key Takeaways

  • The District Court held that s 9A(1)(f)(ii) of the Passports Act 1938, properly construed, did not extend to documents purporting to be issued by a government that did not exist as a real political entity at the time of the document's purported issue.
  • A conviction under that provision required the document to purport to originate from an actual foreign government, not a fictitious or defunct one.
  • The constitutional analysis proceeded independently of the statutory finding: the Commonwealth's power to legislate in respect of documents purporting to be passports, however fabricated, was upheld as falling within the external affairs power and associated incidental powers under the Constitution.
  • Under s 9A(1)(f)(ii), it is the document's character as a purported passport that is the focus of the offence, not the authenticity or current existence of the government it names, as a matter of constitutional validity rather than statutory construction.
  • Upholding the appeal on statutory grounds did not require the Court to find the provision constitutionally invalid; the two questions were treated as distinct, and only the first was resolved in the appellant's favour.

Legislation and Cases Referenced

Legislation
- Passports Act 1938 (Cth), particularly s 9A(1)(f)(ii)
- Australian Passports Act 2005 (Cth)
- Anti-Terrorism Act (No 3) 2004 (Cth)
- Acts Interpretation Act 1901 (Cth)
- Judiciary Act 1903 (Cth), s 78B
- Constitution Act 1900 (Cth), ss 51(xxix), 51(xxxix)

Cases
- Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
- Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
- Beckwith v The Queen (1976) 135 CLR 569
- Davis v Commonwealth (1988) 166 CLR 79
- Polyukovich v The Commonwealth (1991) 172 CLR 501
- Koowarta v Bjelke-Petersen (1982) 153 CLR 168
- Commonwealth v Tasmania (Franklin Dam Case) (1983) 158 CLR 1
- Leask v Commonwealth (1996) 140 ALR 1
- Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55
- Bank of New South Wales v Commonwealth (1948) 76 CLR 1
- R v Lavender (2005) 79 ALJR 1850
- R v Bailey [2003] NSWCCA 361
- Bond v The Queen (2000) 74 ALJR 597
- Murphy v Farmer (1988) 165 CLR 19