Nicholas v R

193 CLR 173

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(Judgment by: Kirby J)

NICHOLAS v REGINA

Court:

Judges: Brennan CJ
Toohey
Gaudron
McHugh
Gummow

KirbyHayne JJ

Subject References:
CONSTITUTIONAL LAW
Separation of judicial power of the Commonwealth
Legislative response to Ridgeway v. The Queen
Whether Parliament usurping judicial power
Whether legislation impermissibly specific in application
Integrity of judicial process
Retrospective operation of statute
EVIDENCE
Importation of prohibited drugs
"Controlled delivery" by law enforcement officer
Rationale for Ridgeway discretion to exclude evidence
Public policy

Other References:
Crimes Act 1914 (Cth), s 15X.
Crimes Amendment (Controlled Operations) Act 1996 (Cth).
Customs Act 1901 (Cth), s 233B.
The Constitution, Ch III.

Judgment date: 2 FEBRUARY 1998

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Judgment by:
Kirby J

170. A cause pending in the County Court of Victoria between the Crown and Mr David Nicholas (the applicant) was removed into this Court ^[F224] . The removal was ordered to permit the determination of the constitutional validity of s 15X in Div 3 of Pt 1AB of the Crimes Act 1914 (Cth). That Part was inserted in the Crimes Act by the Crimes Amendment (Controlled Operations) Act 1996 (Cth) ("the Act") ^[F225] . The purpose of the amendment was to respond to the decision of this Court in Ridgeway v. The Queen ^[F226] .

171. The applicant contends that s 15X is unconstitutional. Put broadly, the ground of invalidity asserted is that the section amounts to an impermissible invasion by the Parliament of the judicial power of the Commonwealth reserved to the judicature ^[F227] . Alternatively, if the section is constitutionally valid, the applicant argues that, having regard to its terms and in the events which have occurred, its provisions have no application to his case.

Background Facts

172. For the purpose of the proceedings, this Court has not been concerned with the detailed circumstances giving rise to the prosecution. The facts necessary to present for decision the constitutional and statutory questions were agreed. The applicant was charged with two offences against the Customs Act 1901 (Cth) ^[F228] of having in possession, and attempting to obtain possession of, prohibited imports. It was an ingredient of each alleged offence that the drugs had been imported into Australia "in contravention of [the Customs Act ]". The Court was informed that the imports in question were of a trafficable quantity of narcotic goods, namely heroin ^[F229] . In addition to the two federal offences stated, the applicant was also presented for trial on two breaches of State law ^[F230] .

173. The applicant was arraigned in October 1995 and rearraigned in March 1996. On each occasion he pleaded not guilty to all counts. At the committal hearing it was the uncontested evidence of the prosecution that the prohibited goods were imported into Australia by Australian and Thai law enforcement officers. It may be accepted that those officers were acting under the Ministerial Agreement relating to a "controlled delivery" such as is described in Ridgeway ^[F231] . Although in the County Court, some points of distinction between the facts of Ridgeway and of this case were argued, before this Court it was not contested that, at the time of the importation of the goods in question, the Australian and Thai law enforcement officers had acted in contravention of s 233B of the Customs Act . They were not excused or exempted from the application of that Act by the Ministerial Agreement or anything else.

174. The decision in Ridgeway was given in April 1995. When, in May 1996, a pre-trial hearing took place in the County Court before Judge Crossley, the applicant, relying on that decision, sought a permanent stay of the proceedings against him contained in the first two counts of the presentment. The prosecution, foreshadowing the passage of legislation to overcome Ridgeway , asked the judge to postpone a ruling on this application until the commencement of the applicant's trial. Judge Crossley was at first disposed to agree to this course. However, on 27 May 1996, in the exercise of his discretion and conforming to Ridgeway, his Honour ordered that the trial of the applicant upon the first two counts be permanently stayed. His order left the counts based on State law unaffected.

175. The Act came into effect on 8 July 1996. Promptly, the Director of Public Prosecutions for the Commonwealth applied to Judge Crossley to vacate the stay order in respect of counts 1 and 2. This application caused the applicant to raise his challenge to the constitutional validity of the new legislation ^[F232] . Notices of the constitutional matter were given ^[F233] . They were followed by a hearing and the order removing the cause into this Court. Because the entire cause was removed, the applicant was heard to argue both his constitutional and statutory points.

Controlled Delivery and Ridgeway

176. The procedure of "controlled delivery" of narcotic goods appears to have arisen both from international ^[F234] and domestic ^[F235] initiatives which recognised that an effective response by law enforcement agencies to the problem of the large scale trade in narcotics required the provision of new powers such as would permit "the infiltration of criminal groups" ^[F236] . The Convention against Illegal Traffic in Narcotic Drugs and Psychotropic Substances, which came into force in relation to Australia on 14 February 1993 ^[F237] , provides for so-called "controlled delivery" procedures in Art 11(1):

"If permitted by the basic principles of their respective domestic legal systems, the parties shall take the necessary measures, within their possibilities, to allow for the appropriate use of controlled delivery at the international level, on the basis of agreements or arrangements mutually consented to, with a view to identifying persons involved in offences established in accordance with article 3, paragraph 1, and to take legal action against them."

177. The initiative of the Federal Executive, pursuant to the Ministerial Agreement described in Ridgeway ^[F238] , failed to conform to the opening words of Art 11. The persons involved in the importation in Ridgeway (a member of the Royal Malaysian Police Force and a "registered informer", both operating as under-cover agents in cooperation with the Australian Federal Police), acted in clear contravention of the Customs Act s 233B(1). Indeed, it was an essential element of the prosecution case against Mr Ridgeway (as of that against the applicant) that the importations in question were made "in contravention of [the Customs Act ]".

178. Because the Executive had no authority to exempt or excuse either the local or foreign police agents from complying with the Customs Act , it was demonstrated in Ridgeway , and initially before Judge Crossley in this case that, for the prosecution to succeed in the counts based on the Customs Act , it would be essential for the Crown to rely on the conduct of the law enforcement officers which was unlawful, indeed seriously criminal.

179. In Ridgeway , a majority of this Court ^[F239] held that these facts gave rise to an entitlement in Mr Ridgeway to have his conviction quashed. Most of the members of the Court explained the order on the footing that the illegality of the law enforcement officers' conduct enlivened a judicial discretion (or power) to exclude evidence on the ground of public policy as explained in R v. Ireland ^[F240] and accepted as the settled law of this country following Bunning v. Cross ^[F241] . The purity of the motives of the law enforcement officers, their close compliance with the procedures laid down in the Ministerial Agreement, the need to infiltrate criminal groups to catch large-scale offenders and the status of the officials as law enforcement officers did not excuse what had happened. Such considerations did not require an exculpatory exercise of the judicial discretion. Nor did they deny the accused relief. On the contrary, the fact that an element of the contravention of the law was performed by law enforcement officers added to the gravity of the unlawful conduct and demanded the provision of relief by this Court ^[F242] . Although the members of the majority in Ridgeway differed as to the conceptual foundation for the provision of relief ^[F243] and as to the precise form of the relief which was appropriate ^[F244] , the majority considered that the relief required was the quashing of Mr Ridgeway's conviction and the provision of a permanent stay of further proceedings in relation to the alleged offences against s 233B(1) of the Customs Act ^[F245] . Such was the order which this Court made.

180. A number of the Justices in Ridgeway acknowledged the unsatisfactory result to which they were driven because of the absence of a legal foundation for the "controlled delivery" procedure disclosed by the case. Mason CJ, Deane and Dawson JJ observed ^[F246] :

"If it be desired that those responsible for the investigation of crime should be freed from the restraints of some provisions of the criminal law, a legislative regime should be introduced exempting them from those requirements. In the absence of such a legislative regime, the courts have no choice but to set their face firmly against grave criminality on the part of anyone, regardless of whether he or she be government officer or ordinary citizen. To do otherwise would be to undermine the rule of law itself."

181. The remarks of Brennan J ^[F247] were to similar effect. His Honour pointed out that it would be expected that the Parliament might consider that "controls should be legislatively prescribed" ^[F248] . He foreshadowed a number of considerations which were later to find their way into the Act in respect of future operations. No member of the Court referred specifically to the possibility of retrospective sanctioning of the controlled deliveries which had, to that time, been performed without the authority of statute. By inference, those members of the Court ^[F249] who favoured the substitution of a verdict of acquittal or of not guilty of the charges under the Customs Act did not contemplate such a possibility, at least in Mr Ridgeway's case.

182. A Bill was promptly introduced into the Parliament to regulate "controlled deliveries". As introduced, it dealt not only with future operations. It also purported to deal with those of the past which were relevantly indistinguishable from that which in Ridgeway had given rise to the order permanently staying the proceedings in that case.

Legislative Amendments

183. The Act incorporates into the Crimes Act a new Pt 1AB ("Controlled operations for obtaining evidence about certain offences relating to narcotic goods"). The amendments appear in three Divisions. Division 1 ("Objects of Part") contains one section, s 15G, expressing the objects of Pt 1AB. Division 2 ("General") deals prospectively with authorisation procedures for law enforcement officers engaged in an authorised controlled operation. Division 3 ("Controlled operations started before commencement of this Part") has retrospective consequences for a controlled operation "started before the commencement of this Part" ^[F250] . The Part commenced on the day on which the Act received the Royal Assent. Thus Div 3 by its terms applies to the importation relevant to the first two counts on which the applicant is charged. It is important to examine the entire Act in order to contrast the way in which the Parliament dealt with controlled operations occurring after the Act commenced and those which it describes as "started" before the Act was in force.

184. The stated purpose of the Act, as its long title shows, is "to exempt from criminal liability certain law enforcement officers who engage in unlawful conduct to obtain evidence of offences relating to narcotic goods, and for related purposes". The objects of Pt 1AB are stated in s 15G(1). Sub-sections 15G(1)(a) and (c) are set out in the reasons of Brennan CJ. The other stated object, in s 15G(1)(b), is to require the Commissioner of the Australian Federal Police and the Chairperson of the National Crime Authority to "report to the Minister on requests to authorise controlled operations" and the Minister to report thereon to Parliament ^[F251] .

185. The second sub-section of s 15G provides expressly for the preservation of the power of courts relevant to the issues argued in this case:

"(2) Subject to section 15X, this Part is not intended to limit a discretion that a court has:

(a)

to exclude evidence in criminal proceedings; or

(b)

to stay criminal proceedings in the interests of justice."

As will be seen, s 15X, which the applicant attacks, is the principal operative provision of Div 3.

186. Division 2 contains a definition of a "controlled operation". Both by its place in Div 2, and by its reference to s 15I, it appears that the definition is intended to have a prospective operation ^[F252] .

187. The key provision for the exemption of law enforcement officers from liability for offences, provided they conform to the authorisation procedures for controlled operations, is s 15I. The terms of that section are set out in the reasons of Hayne J. The remainder of Div 2 consists of provisions that establish the preconditions for authorisation of a controlled operation ^[F253] ; provisions for the notification of the issue of certificates ^[F254] ; evidentiary provisions ^[F255] ; and provisions dealing with reports to ^[F256] and by ^[F257] the Minister on the use made of such certificates.

188. I now reach Div 3. In the interpretation provision there is no separate definition of "controlled operation". The definition provided in s 15H does not, on its face, apply because of its incorporation of reference to s 15I which provides for prospective authorisation of controlled operations after the Act. However, the definition section repeats the statement in the objects, to the effect that in the Division, a reference to a "controlled operation" is a reference "to a controlled operation started before the commencement of this Part" ^[F258] . The word "started" is Orwellian. So far as the legal consequences for the applicant are concerned, the relevant activities of the "controlled operation" in question in this case were the acts of importation into Australia of prohibited imports in contravention of the Customs Act. They were not only "started" before the commencement of the Part. They were completed before it came into effect. It must be assumed that controlled deliveries pursuant to the Ministerial Agreement ceased after Ridgeway so that all past such cases were not only "started" but completed by the time the Act became law.

189. A definition is given ^[F259] of the Ministerial Agreement, being that made on 3 June 1987 referred to in Ridgeway . Provision is then made for the Minister to give a certificate about a controlled operation that involved unlawful importation of narcotic goods by a law enforcement officer ^[F260] . There then follows the crucial provision which the applicant challenges in these proceedings. It appears as s 15X ("Evidence of illegal importation etc. of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officer"). As the section is reproduced in the reasons of several members of the Court, it would be tedious to repeat it.

Parliamentary Consideration of the Legislation

190. The Court was taken to the Parliamentary debates and background materials on the Bill which ultimately became the Act. The applicant cautioned that such materials should not be used to put a gloss on the meaning of the legislation as appearing in its language ^[F261] . This is true enough. However, to understand the purpose of the Parliament in this case, it is legitimate to have regard to the background information ^[F262] .

191. The first attempt to overcome the consequences of the decision in Ridgeway was by the Crimes Amendment (Controlled Operations) Bill 1995 (Cth). When this was introduced into the Parliament in August 1995 by the then Minister for Justice (Mr D Kerr), he made it clear that the government was attempting to respond to the decision in Ridgeway. He described the crucial holding in that case as being that a public policy ground "triggers the discretion to exclude evidence ... where illegal police conduct is an essential ingredient of the charged offence" ^[F263] . He stated ^[F264] :

"The enactment of the bill now before the House will ensure that the actions of law enforcement officials engaged in a controlled operation will not incur criminal responsibility and, as a result, the trigger for the exclusion of evidence will not arise."

192. In this statement, the Minister recognised, correctly in my view, the need to remove from the conduct of the law enforcement officials, involved in the importation, the character of "criminal responsibility" which this Court regarded as "triggering" the judicial discretion on public policy grounds to exclude the evidence thereby procured. It will be important to contrast the Minister's statement and the Act's stated objects with the legislation as ultimately enacted and to see the different ways in which the Parliament dealt with future and with past controlled operations.

193. The Minister went on to refer to past controlled operations, of which that involving the applicant was clearly one. He said ^[F265] :

"It is important to describe the effect of the bill upon prosecutions that are current at the time the bill commences operation. There are a number of investigations which are affected by the decision in Ridgeway . They all involve very significant participation in trafficing in narcotics; for example:

•

conspiracy to import 7 kg of cocaine (one individual);

•

being knowingly concerned in the importation of 3.8 kg of cocaine (two individuals);

•

conspiracy to import 7 kg of cocaine (one individual); and

•

being knowingly concerned in the importation of, and possession of, 2 kg of heroin (two individuals).

Controlled operations were employed in each of these matters. These operations were strictly regulated and rigorously controlled covert operations. They were not operations involving out of control cowboys riding roughshod over our laws. In each case they were conducted in purported accordance with the terms of a Ministerial Agreement relating to such operations and the detailed requirements of Australian Federal Police guidelines on the conduct of controlled operations."

The Minister recognised that, without the passage of the Bill "those trials will have to be abandoned" ^[F266] . He suggested that the community would not see that as a just outcome.

194. The Bill lapsed with the prorogation and dissolution of the Parliament in 1995. A new measure, the Crimes Amendment (Controlled Operations) Bill 1996 (Cth) was introduced into the new Parliament. It took into account a supervening report of the Senate Legal and Constitutional Legislation Committee ^[F267] . An examination of the Committee report makes it plain that the Senators concerned were aware of the technical difficulty of preserving the illegality of the importation (so as to apply the terms of s 233B of the Customs Act to the applicant) whilst at the same time exempting the law enforcement officers involved of criminal liability (and thus of the stain of involvement in criminality which had attracted the judicial discretion on public policy grounds in Ridgeway ^[F268] ). The Committee report recorded objections to the retrospective application of the Bill and questions raised as to its constitutional validity ^[F269] . However, the Committee expressed its satisfaction with assurances that "the transitional provision only regulates the prospective evidentiary effect of certain prior conduct" ^[F270] . No substantive change was made to the provisions of Div 3.

195. When the new Bill was read a second time in the House of Representatives in June 1996, the Attorney-General (Mr D Williams QC) referred to the several public policies which the legislation addressed ^[F271] : effective law enforcement, protection of fundamental rights and the particular needs to combat clandestine criminal activity and organised crime but in the context of "strengthened" "accountability mechanisms" ^[F272] . He said ^[F273] :

"It should be noted that the bill, whilst protecting the law enforcement officers from criminal responsibility, will still preserve the essential criminality or unlawfulness of the importation - or exportation - of the prohibited narcotics. This will ensure that the importation or exportation itself is not made lawful, thereby exonerating the targets of the operation who planned the conspiracy."

He went on to describe a number of investigations affected by the decision in Ridgeway. Those mentioned by him were the same as those previously mentioned by Mr Kerr, except that one reference to an individual said to have been involved in "conspiracy to import 7 kg of cocaine" was deleted ^[F274] . Only five individuals were identified as affected by Div 3. The Bill was duly enacted.

Uncontested Matters

196. There was much common ground between the parties both as to the issues for decision and as to the principles applicable. In order to see the remaining differences in sharper focus, it is helpful to indicate the extent of the common ground:

1.

It was accepted for the Crown that the successful prosecution of the applicant on the first two counts of the presentment depended entirely on the validity of s 15X of the Act. If the section were invalid, there would be no basis for the application to Judge Crossley to vacate the stay. The applicant disclaimed any attack on Div 2 of the Act. It had no application to his case, being wholly prospective in operation. On the contrary, the applicant relied on the differentiation of the treatment of illegality on the part of law enforcement officers in Div 2 and Div 3 as an important step in his argument. It was conceded for the Crown that a different mode of drafting had been adopted in the two Divisions. Neither Division removed the illegality of the act of importation. However, in the case of Div 2, so long as the controlled operation was authorised in accordance with the Act, the Parliament declared that the law enforcement officers so engaged were "not liable for that offence" ^[F275] . No attempt was made in Div 3 (assuming it to be possible) retrospectively to provide in a similar way for the removal of criminal liability in the law enforcement officers who had engaged in offences in the past . Instead, the legislative technique adopted by s 15X was to address the admission of evidence relevant to the public policy discretion explained in Bunning v. Cross.

2.

It was accepted for the applicant that members of this Court in Ridgeway had contemplated legislative repair of the defect in the law which that case had demonstrated ^[F276] . Clearly enough the Parliament was endeavouring to respond to the Court's suggestions. The motivation of the Parliament or the fact that it might have gone about the legislation in Div 3 in a different way is irrelevant. The only duty of the Court is to measure Div 3, and specifically s 15X, against the requirements of the Constitution.

3.

The applicant did not contest the jurisdiction of the County Court to lift the stay ordered in his favour. That stay, like the one ordered in Ridgeway itself, is described as a "permanent stay of ... proceedings" ^[F277] but it was accepted that the Crown was entitled, in the changed circumstances brought about by the enactment of the Act, to apply for the lifting of the stay so long as the applicable provision of the Act was constitutionally valid. There is a dearth of authority on the power to vacate an order permanently staying criminal proceedings. In one of the preliminary rulings made in the Supreme Court of South Australia in the prosecution of Mr Polyukhovich, Cox J held that the power to lift a permanent stay existed ^[F278] . It being conceded that no res judicata (or issue estoppel) was effected by the stay order the power of the Court to lift the order in the changed circumstances would seem clear enough ^[F279] . In light of the applicant's concession, I am content to proceed on that basis. It would be otherwise if the procedural course favoured by Brennan J and Toohey J in Ridgeway had been followed in the applicant's case, namely the entry of an order of acquittal or a verdict of not guilty ^[F280] . The Crown did not argue that the stay granted to the applicant was other than a valuable legal right secured by him by the application of the applicable law. It is a serious step to remove a permanent stay. This Court is not concerned with any discretionary considerations but only with the constitutional and construction points argued.

4.

It was conceded that one indication of an invasion by the Parliament of the judicial power reserved to courts was the enactment of ad hominem legislation having application only to an identified person or persons ^[F281] or to a limited number of persons readily identifiable ^[F282] . Although the character of the Act here in question was in dispute, it was not contested that Div 3 was applicable to an extremely small number of cases. Only five were identified by the Attorney-General explaining the Bill to the House of Representatives. By inference, it is likely that only five cases are involved. That inference arises from the following facts: The controlled operations performed under the Ministerial Agreement were carefully monitored by Australian authorities. The passage of time since Ridgeway would suggest that if any more cases had been relevant, they would have been disclosed to the Parliament when the new Bill was introduced. A controlled operation is a major activity of law enforcement: reported to the Minister, formerly under the Ministerial Agreement and now under the Act. Had there been more cases to justify the retrospective operation of Div 3, it is inconceivable that they would not have been specified by the Attorney-General in support of the Bill. Accordingly, although the exact number is not proved, it seems extremely unlikely that there would be more than the five or six disclosed to the Parliament by the successive Ministers.

5.

During argument, a question arose as to the meaning of s 15X. The question was whether, notwithstanding its terms, some part of the judicial discretion in Bunning v. Cross was preserved to the court being made aware of the past involvement of law enforcement officers in contravention of the Customs Act s 233B. In terms, s 15X does no more than to require the court to disregard the fact that the law enforcement officers " committed an offence in importing the narcotic goods [etc]" (emphasis added). Did this mean that everything save the fact of the offence remained for consideration? Neither the Crown, nor the Attorney-General for the Commonwealth intervening, embraced this narrow construction of s 15X of the Act. The applicant was also doubtful about it. Rightly so, in my view. Amongst the stated objects of the Part, introduced by the Act, is the intention not to limit the discretion that a court has to exclude evidence in criminal proceedings or to stay such proceedings in the interests of justice ^[F283] . However, that object is stated in the Act to be "[s]ubject to section 15X". By inference, s 15X is intended to limit the Bunning v. Cross discretion and the power to stay criminal proceedings in the interests of justice on the basis of its exercise. Given the history, language and obvious purposes of the Act, I do not consider that s 15X, if valid, could be interpreted to preserve any residual discretion based upon the fact that narcotic goods were illegally imported as distinct from the offence thereby committed. Such a construction would also contradict the materials placed before the Court relevant to the purposes of the Parliament in enacting the provision ^[F284] .

6.

In April 1995, several months before the events giving rise to the charges against the applicant, the Evidence Act 1995 (Cth) ^[F285] came into operation. Section 138 of that Act contains a legislative attempt to re-express the substance of the discretion in Bunning v. Cross. There are some apparent differences ^[F286] . It was common ground that the section would not apply to the trial of the applicant. That trial is being conducted in a State court in Victoria within a jurisdiction vested in it under the Constitution ^[F287] and pursuant to the Judiciary Act 1903 (Cth) ^[F288] . Accordingly, Victorian law as to evidence and procedure will be applied ^[F289] . However, both parties sought to gain assistance from the passage of this provision of the Evidence Act. For the Crown, supported by the Commonwealth, s 138 indicated what has long been established, namely that Parliaments may enact laws of evidence of general application to govern the trial of matters in the courts, including with retroactive operation, without being regarded as impermissibly invading the courts' domain or the judicial power. On the other hand, the applicant pointed to the care that had been taken in the Evidence Act ^[F290] to exclude the operation of that Act even in a trial for a federal offence for which it might otherwise have been applied. Moreover, the Evidence Act had expressly preserved the powers of a court with respect to "abuse of process" ^[F291] . By including a provision akin to Bunning v. Cross , it was argued, the Parliament had acknowledged that any general provision in a law of evidence which purported completely to abolish or restrictively to control the power of courts to exclude evidence obtained unlawfully, would run into a constitutional problem.

7.

In all other respects, it was accepted for the applicant that the conditions for the application of s 15X of the Act were fulfilled. For the Crown it was accepted that the exercise of the discretion described in Bunning v. Cross was an exercise of the judicial power by courts, for public policy reasons. It was doubted that it would be competent for the Parliament to abolish that discretion entirely so far, at least, as the judicial power of the Commonwealth was concerned. But it was argued for the Crown, supported by the Commonwealth, that, as in the Evidence Act, it was competent for the Federal Parliament, in a law of general application, to affect the way in which, and the facts by reference to which, the discretion would be exercised by the courts. This, they submitted, was all that had been done by s 15X.

8.

Finally, it was common ground that this Court was not concerned with the two State offences contained in the indictment. As in Ridgeway ^[F292] , if the federal offences were to remain permanently stayed, it would be a matter for the prosecuting authorities to determine whether the State offences (being unaffected by the constitutional point) should be prosecuted or not.

Arguments of the Parties

197. The applicant argued that s 15X impermissibly intruded upon an important judicial discretion and invalidly directed the courts on the way in which that discretion was to be exercised. This was impermissible because it amounted to a pre-judgment of an issue of high public policy properly belonging to the courts alone. It was for the courts, ultimately, to protect the integrity of their processes and to withhold curial approval (or the appearance of approval) to acts of criminal wrongdoing by law enforcement officers ^[F293] . The Parliament had preserved precisely the same defect as had occasioned the strong response of this Court in Ridgeway. Although Ridgeway was not itself a case concerning the requirements and implications of Ch III of the Constitution, it was an illustration of the way in which the Court would insist that federal judicial power should be administered in the courts of this country so as to avoid bringing the judicature into disrepute and so as to maintain public confidence in the courts ^[F294] . At least where, as here, no attempt had been made (assuming that to be possible) to remove or excuse the unlawfulness of the past conduct of the law enforcement officers, that unlawfulness remained completely unrepaired. They were not even afforded (as authorised controlled operations will in future provide) an exemption from personal liability for their part in the offence. Instead, the court concerned was simply instructed to disregard the offence and this notwithstanding the fact that the basis for the permanent stay provided to Mr Ridgeway, and granted to the applicant, was the very fact that condoning and rewarding unlawful conduct by law enforcement officers was incompatible with the integrity of courts and the maintenance of public confidence in their processes.

198. In support of his arguments, the applicant also stressed the selective and limited operation of Div 3 in respect of identifiable individuals, including himself. The proper characterisation of s 15X was not that of a law of general application but one which was selective, particular and ad hominem . It was not that of a general law of evidence to provide guidance to courts for every like case, such as the Evidence Act or even the alteration of particular evidentiary requirements for corroboration ^[F295] . It was ad hoc and specific legislation of retroactive operation designed effectively to dictate the outcome of the exercise of a judicial discretion in five or so cases and thereby, in effect, to require courts to do precisely what in Ridgeway was held to be alien to the courts' functions.

199. The Crown, supported by the Commonwealth, contested these submissions. It argued that Div 3, although affecting a relatively small number of persons, was in legal terms general in its application. Although it affected the rights of parties in pending litigation (including the right of the applicant to maintain a permanent stay), this did not involve interference with the exercise of the judicial power ^[F296] . It was simply the provision of statutory guidance to the exercise of a general judicial discretion. This was something which had long been regarded as a proper function of legislation. Far from impairing public confidence in the courts, engendering a belief that they are thereby rendered subservient to the Parliament or the Executive, s 15X left unaffected the courts' power and discretion under Bunning v. Cross . The section merely substituted the Parliament's judgment of the public policy involved. It was intended to repair the "technical" default of the law enforcement officers who had acted in good faith under the Ministerial Agreement before Ridgeway. There would be a greater damage to public confidence in the courts, it was suggested, if the persons accused of the serious crimes against the Customs Act , such as the applicant, could walk away from having their guilt of the federal offences determined at a trial by jury on the basis that the law enforcement officers, engaged in the importation in their cases, did not have the sanction of statute to breach the provisions of the Customs Act .

Non-Interference in the Exercise of Judicial Power

200. A number of principles, established by authority, assist in the resolution of the constitutional question:

1.

Origins and scope of the judicial power The separation of the judicial power from the other powers of government derives from the language and structure of the Australian Constitution. It is reinforced by the history which preceded and which has followed its adoption. It is strengthened by the necessity of giving effect to the purpose of Ch III to create a judicature for Australia independent of the legislative and executive branches of government ^[F297] and as a "bulwark of freedom" ^[F298] . In terms of the Constitution, the judicial power of the Commonwealth may be exercised only by courts constituted or invested with jurisdiction as the Constitution permits. This basic principle has many consequences. Relevantly to the present matter, one is that the Parliament may not enter into the activities properly belonging to the judicial power in a way inconsistent with its exercise by the courts ^[F299] . The most obvious derogation would be if the Parliament were to purport to constitute itself or some other non-court body, a tribunal to perform functions reserved by the Constitution to the courts. An equal offence against the principle of separation would be an attempt by the Parliament to prejudge an issue which is before a court affecting a particular individual and which required that court to exercise its functions in accordance with such pre-judgment ^[F300] . Particularly in criminal cases, but also in civil, such a usurpation of essential judicial functions is inconsistent with the requirements of the Constitution ^[F301] .

2.

The judicial power in a federal system The separation and integrity of the judicial power, universally regarded as essential to the independence of the judicial function generally ^[F302] , is specially important in a federal system of government. There the judiciary, especially in the courts constituted or invested with jurisdiction under the Constitution, must regularly determine disputed questions concerning constitutional power and large questions affecting the life of the nation as a whole. This is why the separation of the judicial power has been described as "a vital constitutional safeguard" ^[F303] . In Harris v. Caladine ^[F304] , McHugh J pointed out tellingly that:

"Those who framed the Constitution were aware of the need to insulate the federal judiciary from the pressures of the Executive Government of the Commonwealth and the Parliament of the Commonwealth so that litigants in federal courts could have their cases decided by judges who were free from potential domination by the legislative and executive branches of government."

It is the duty of this Court to maintain this postulate of the Constitution intact. One danger to it lies in the pretended conferral of judicial functions on tribunals and other bodies lacking the independence and constitutional protections of the courts ^[F305] . Another lies in attempts by the legislature, pursuing policies recommending themselves to it, to enact what the Supreme Court of the United States has described as laws which have the effect of "nullifying prior, authoritative judicial action" ^[F306] . I do not agree with the view of that Court that this factor is decisive, no matter how general the law in question ^[F307] . Whether a law has the effect of nullifying prior authoritative judicial action is but one factor, albeit an important one, to be taken into account when determining invalidity.

3.

General indicia of invalidity Where a complaint of interference with the judicial power is made, a judgment is invoked upon which, quite often, minds will reasonably differ. The judicial power under the Australian Constitution has long been accepted to be "an elusive concept" ^[F308] . No definition of it has ever been framed which is "at once exclusive and exhaustive" ^[F309] . Those definitions which have been attempted have generally resorted to explanations in terms of the powers which are necessary to deciding controversies affecting life, liberty and property ^[F310] . However, such generalities give scant guidance when, as here, a particular statutory provision is challenged and is said to be an impermissible legislative intrusion upon, or derogation from, the judicial power. In such cases, regard has typically been had to indicia of invalidity which are themselves expressed in very broad terms. Between a Bill of Attainder (which amounts to a parliamentary finding of guilt and is thus offensive to the separation of powers ^[F311] ) and a law of general application (which in some particular respects permissibly affects pending cases) lie a myriad of instances which fall on one side of the line of constitutional validity or the other. Recent decisions of this Court illustrate the extent to which the Court will go to uphold and safeguard the independence and integrity of the federal ^[F312] and State ^[F313] courts so that they may continue to perform their judicial functions as the Constitution encourages and thereby to maintain public confidence for their impartiality. Such performance and such confidence would be lost if courts were seen to be no more than subservient agents bending to the will either of the Executive or the Parliament ^[F314] . Maintaining public confidence in the independence of the courts is a common theme running through the majority opinions in Wilson v. The Minister ^[F315] , Kable v. DPP (NSW) ^[F316] and many other cases, recent and long in the past. Involved is no self-interested presumption on the part of the judges to maintain an uncontrollable judicial veto over the actions of the other branches of government. Still less is it a judicial caprice invoked in an impermissible departure from the judges' legal duty. What is involved is nothing less than a defence by the judiciary of the integrity of the branch of government which by the Constitution is placed in their charge. The history of invasions of the judicial power in less fortunate countries has seen too many instances where the judges supinely accepted the invasions, doing so silently and meekly. In Australia such incursions as there have been have been more modest and sometimes well intentioned. But it is the duty of the judiciary to defend the judicial branch of government as much against the latter as against the former.

4.

Particularised legislation One criterion frequently applied to distinguish legislation which permissibly guides the exercise of a judicial power or discretion from that which impermissibly seeks to dictate how the power or discretion will operate in a particular case is whether the legislation is general or particular in its application. If it is highly selective and clearly directed at a particular individual or individuals, it is much more likely that it will amount to an impermissible intrusion upon, or usurpation of, the judicial power ^[F317] . The position is clearer where the legislation in question names the individual or individuals affected ^[F318] . However, such express identification is not required ^[F319] . In judging whether the legislation impermissibly infringes the judicial power, regard will always be had to its substance rather than its form ^[F320] .

5.

Preventing the administration of justice falling into disrepute The Parliament may enact laws of general application to govern the acceptance and rejection of evidence by courts, as indeed it has often done. But the mere fact that, for some purposes, the rule in Bunning v. Cross might be classified as a law of evidence, and might even be modified by the Parliament for future and general application, cannot mean that it is susceptible to such a modification as would remove the power essential to courts to protect the integrity of their own processes. Various explanations have been given as to the ultimate conceptual foundation of the rule in Bunning v. Cross. They include the protection of the individual accused from improper or unlawful treatment ^[F321] ; the right of society to insist that those who enforce the law themselves respect it ^[F322] ; and the discouragement of criminality on the part of law enforcement officers by depriving them of the fruits of their unlawful conduct and thus of the incentive to act in a way neglectful of the law ^[F323] .

However, there is another and more fundamental reason which sustains the judicial discretion or power in question. It is a reason that is relevant to the nature of the judicial power itself. It charts the limits upon any legislative modification of that rule. I refer to the many judicial expressions explaining the rule in terms of the right and duty of the courts to protect the integrity of their own processes ^[F324] and to prevent the administration of justice being brought into disrepute with consequent loss of public confidence ^[F325] . In the United States of America, where the separation of the judicial power under the Constitution bears many similarities to the position in Australia, the obligation of courts to "set their face against enforcement of the law by lawless means" ^[F326] is often expressed in constitutional terms. Those terms received endorsement from the opinion of Mason CJ, Deane and Dawson JJ in this Court in Ridgeway ^[F327] . Their Honours there cited with approval the well known passage in the opinion of Roberts J in Sorrells v. United States ^[F328] , in turn endorsed by Frankfurter J in Sherman v. United States ^[F329] :

"The doctrine [ie of entrapment] rests, rather, on a fundamental rule of public policy. The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law."

In Canada, the Supreme Court has expressed the same idea ^[F330] :

"[T]he essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law."

In Ridgeway , Mason CJ, Deane and Dawson JJ considered that the reasoning in Sorrells and Sherman and other statements to similar effect ^[F331] provided "persuasive support for the recognition in this country of a judicial discretion to exclude evidence of an illegally procured offence analogous to the Bunning v. Cross discretion to exclude illegally procured evidence" ^[F332] . This is the essence of the Ridgeway discretion. Its foundation is not, as such, fairness to the accused person. It is rather a principle of public policy bound up in the self-regard of the courts constituted or invested with the judicial power of the Commonwealth. By the terms of the Act in question here, the Parliament appears to have recognised ^[F333] the limits on its entitlement to intrude upon, or to derogate from, this self-protective discretion reserved to the courts. However, that recognition appears in a provision which is stated to be subject to s 15X. That section is thus exceptional to the general scheme of the Act. The applicant says impermissibly so.

6.

Retrospective legislation A law of general application may apply to facts which occurred before the enactment and yet be valid, causing no offence to the exercise of the judicial power ^[F334] . Although the judicial power assumes the existence of a pre-existing legal rule or standard which the courts must apply, it does not require that the rule or standard should have been ascertained or precisely defined before the determination is made, applying the rule in the exercise of the judicial power ^[F335] . Thus, an amended rule regarding corroboration might apply to the trial of an accused person for offences which allegedly took place prior to the amendment ^[F336] . The strictures on the judicial power do not freeze in time rules as to practice and procedure (including the general law of evidence) in such a way as to afford an accused an immunity from supervening changes in laws of general application.

7.

Enactment of laws of evidence The Parliament has undoubted power to make and amend rules of evidence to be applied in the exercise of the judicial power ^[F337] . Similarly, the Parliament has full power to make and amend laws governing the importation of prohibited goods. The general defect in the law revealed by Ridgeway was one which this Court contemplated could and would be corrected. The Parliament, having twice had a Bill before it, and having committed the draft to public and expert commentary, has enacted the law with a view to permitting controlled operations as conduct essential to effective law enforcement in relation to the importation of narcotic goods. This is a matter treated as extremely serious by federal law. If convicted of the offences of which he stands charged, the applicant would be liable to a substantial period of imprisonment, or a heavy fine, or both ^[F338] . In the circumstances of such a deliberate, considered and reconsidered legislative reform for the purposes of a public policy deemed important to the Parliament, this Court would not lightly conclude that, in s 15X, the legislation had offended against the constitutional separation of powers. On the other hand, the applicant having raised his objection, the Court has no option but to determine that objection according to established principles.

The high particularity of the challenged legislation

201. There are two features of s 15X which must be considered in judging whether the section represents an impermissible intrusion upon, or usurpation of, the judicial power. The first is the high particularity of the application of the section. The second is the way in which the Parliament has gone about the attempt to validate past illegal conduct not by exempting such conduct from criminal liability but by purportedly directing the courts to disregard the illegality, in other words, by a statutory fiction, to pretend, in effect, that the facts are otherwise than they truly were.

202. The first feature might not, standing alone, be sufficient to invalidate the section. On its face, s 15X appears to be a law of general application attaching itself to a controlled operation "started before the commencement of this Part" ^[F339] . In that sense, it appears to partake more of the character of the war crimes legislation upheld in Polyukhovich ^[F340] than of the section added to the Migration Act 1958 (Cth) ^[F341] which was held to be invalid in Chu Kheng Lim v. Minister for Immigration ^[F342] . However, when (as authority dictates) regard is had to substance rather than form, it is clear both from commonsense and from the repeated Ministerial statements that the actual targets of s 15X are not the generality of potential offenders against the Customs Act but a handful of identified persons. They are the individuals who were the beneficiaries of the decision in Ridgeway obliging a permanent stay of proceedings for offences against s 233B of the Customs Act dependent on an act of importation performed by a law enforcement officer relying only on the Ministerial Agreement.

203. The number of persons who would be affected by s 15X can be no mystery. It is not as if "controlled operations" pursuant to the Ministerial Agreement were a daily affair. By this time, the number would be conclusively ascertained. Almost certainly, only five individuals are involved. The fact must therefore be faced that this is very special legislation addressed to the courts directly affecting five or so particular persons already charged and awaiting trial in those courts. In their cases, and theirs alone, the law governing their pending trials has been changed in a way that seriously affects them. There could be few more significant changes of substance to the law affecting a person awaiting trial on criminal charges than the passage of particular provisions which, in effect, deprive that person of a permanent stay of proceedings. From a position effectively free of the risk of trial and punishment the accused is, by legislative fiat directed specifically and particularly at him or her, deprived of the legal protection which, until then, he or she enjoyed. The legislature has nullified prior authoritative judicial action affecting the accused ^[F343] - at least in the case of the applicant who had secured a judicial order for a permanent stay.

204. The high particularity of the legislation is a very relevant consideration in judging whether a law amounts to an invalid legislative intrusion into the judicial domain. In Liyanage v. The Queen ^[F344] , the legislation in question was, on its face, like s 15X, general in its application. It named no individual. It refrained from specifically identifying those targeted, for example by including their names in a schedule. But the clear purpose of the Ceylon statute was to attach new substantive and procedural consequences to a group of persons already in custody whose identity could be ascertained readily enough. In fact, the Act was designed to facilitate the conviction of a group of individuals allegedly involved in an abortive coup d'etat in Ceylon. Although in particular respects, the then Constitution of Ceylon was different from the Australian Constitution, notably in its silence as to the vesting of the judicial power exclusively in the judicature, the Privy Council held that such silence was immaterial. The constitution was consistent with the judicial power being vested exclusively in the judiciary of Ceylon. It was inconsistent with any intention that the judicial power should pass to, or be shared with, the executive or the legislature of that country ^[F345] . Having established that foundation (which renders the decision in Liyanage applicable, by analogy, to cases under the Australian Constitution) their Lordships held that because the legislative amendments under attack were directed to the trial of particular prisoners, they involved a usurpation and infringement by the legislature of the judicial powers. They were thus inconsistent with the Constitution of Ceylon. They were ultra vires . Lord Pearce, who delivered the reasons of the Privy Council, explained ^[F346] :

"The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable (in view of the White Paper) and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals. It legalised their imprisonment while they were awaiting trial. It made admissible their statements inadmissibly obtained during that period. It altered the fundamental law of evidence so as to facilitate their conviction. And finally it altered ex post facto the punishment to be imposed on them. ... [L]egislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments; and that it is fatal to their validity. The true nature and purpose of these enactments are revealed by their conjoint impact on the specific proceedings in respect of which they were designed, and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective, the punishment of those convicted. These alterations constituted a grave and deliberate incursion into the judicial sphere."

Later, his Lordship went on ^[F347] :

"If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution."

205. It is true that, in the present case, s 15X of the Act falls short of the offensive provisions struck down in Liyanage. Yet in material respects there are close parallels. The section is addressed to particular offences on particular and identifiable occasions in the past. It is designed to make admissible evidence which, at the time it was gathered, and until the Act came into effect, was likely to be held inadmissible as illegally obtained. More importantly, it was designed to direct the court of trial to disregard illegality on the part of law enforcement officers although no defence, immunity or excuse was provided by the Act to such officers to exempt them from the illegality which, in the case of the applicant, Ridgeway holds otherwise to require orders for a permanent stay. Although prospective in the sense that it applies to trials held in the future, the effect of the direction to the courts in s 15X is undoubtedly retrospective in operation. That is its substance. It requires courts to disregard past illegality on the part of law enforcement officers although such illegality is admitted and, indeed, is a pre-condition to the operation of the section. In Liyanage , the Privy Council looked to substance not form. So should we.

206. In Chu Kheng Lim v. Minister for Immigration ^[F348] McHugh J observed, in words which I accept:

"The line between judicial power and executive power in particular is very blurred. Prescriptively separating the three powers has proved impossible. ... The application of analytical tests and descriptions does not always determine the correct classification. Historical practice plays an important, sometimes decisive, part in determining whether the exercise of a particular power is legislative, executive or judicial in character."

207. "Value judgments" are inescapably involved in such questions. The boundary of the judicial power defies, or transcends, purely abstract conceptual analysis ^[F349] . However, in the present context the high particularity of s 15X and its application to a mere handful of cases, treated differently from those which in the future will fall into Div 2, raise a serious concern that what has been attempted is an impermissible Parliamentary invasion of the judicial power. Yet were this the only basis of the applicant's attack on the constitutional validity of s 15X, I might be inclined to withhold relief on the footing acknowledged in Liyanage that legislation ad hominem , directed to particular proceedings, "may not always amount to an interference with the functions of the judiciary" obliging the provision of a constitutional remedy ^[F350] .

The Unrepaired Affront of Condoning Unexcused Criminality

208. Particularity is not all. There is a further ground. In my view it requires the provision of relief to the applicant.

209. As has been demonstrated, the Parliament approached the problem presented by Ridgeway in a different manner in relation to future controlled operations from those already "started". Whereas in the former the Parliament expressly provided that the law enforcement officer is "not liable for that offence" ^[F351] , being relevantly the offence of importing prohibited imports in contravention of s 233B of the Customs Act , no such exemption was enacted in relation to past illegal importations. On the contrary, the Act ^[F352] acknowledges that, in such a case, "a law enforcement officer committed an offence in importing the narcotic goods ...". Allowing that the Parliament needed to preserve the illegality of the act of importation in order to render those allegedly involved, such as the applicant, guilty of the offences against s 233B, the fact remains that nothing has been done to meet the essential objection which this Court identified in Ridgeway. That is the objection to the spectacle of the courts being involved in apparently condoning by the judicial process seriously illegal conduct on the part of law enforcement officers. Although the stated objects of the Part include a general object to exempt from criminal liability law enforcement officers acting as provided under the Part ^[F353] , the only operative provision to give effect to such exemption appears in Div 2 ^[F354] . There is none in Div 3. On this point, s 15X is completely silent.

210. The result is that the offence to public policy which was identified by this Court in Ridgeway remains wholly unrepaired. The conduct of the law enforcement officers remains seriously illegal. They are not, by law, exempted from liability. All that has happened is that the courts have been directed by the Parliament to disregard the illegality.

211. Such a direction might be given by the Parliament if all that was involved were a consideration of fairness to the particular accused. However, as the majority were at pains to stress in Ridgeway, that consideration is, if relevant at all, a minor one. The governing consideration is not the public policy in securing the fair trial of the applicant. It is the public interest "in the conviction and punishment of those guilty of crime" and the public interest "in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement" ^[F355] .

212. This aspect of public policy, and the power and duty of the courts to defend it, belong, ultimately, to the judicial power. They can be enhanced, but not diminished, by the legislature or the executive. The central entitlement, and duty, of courts to ensure that the process of the law is not abused is recognised in common law countries even without the particular constitutional protections afforded to Australians by Ch III of the Australian Constitution ^[F356] . Upholding the integrity of the judicial system is the unavoidable obligation of courts ^[F357] . It cannot be surrendered to the other branches of government. They cannot be permitted to direct the courts to act in ways which would undermine the integrity of the judicial process and thereby run the risk of imperilling public confidence in the courts.

213. In Wilson v. The Minister ^[F358] the majority of this Court held that public perception of the institutional separation of the judicial power from the other powers of government was "central to the system of government" established by the Constitution. I agree. Saying this does not lay claim to an uncontrolled and uncontrollable veto over the exercise of legislative power. It is rather the performance by the Court of its constitutional duty to defend the judicial branch from impermissible incursions by the other branches of government. Judgment and characterisation of laws are involved. They cannot be avoided in constitutional decisions of this kind. The Constitution knows no other doctrine than that, ultimately, this Court will say where the line is drawn. It will be guided by the text, structure and purposes of the Constitution and by past authority. The fact that the task is not susceptible to undisputed outcomes has never been a reason for declining protection of the judicial power.

214. There is a large difference between exempting a law enforcement officer from liability for an established and serious breach of the criminal law (as has been done in the Act by Div 2) and simply acknowledging that breach but purportedly telling the courts to disregard it (as s 15X in Div 3 enacts). If one asks what has changed since Ridgeway in respect of the offence to public policy which caused this Court to quash the convictions and order a permanent stay in that case, the answer is nothing of substance. The Crown, which invokes the jurisdiction of the trial court, must still rely on an act of importation which was illegal and remains so, and which has never been exempted or excused from such illegality.

215. In these circumstances, the inherent power of the court to prevent an abuse of its own process remains unaffected. It arises at a point anterior to the hearing of the evidence in a trial of an accused person. It is an obstacle to invoking the judicial process before any determination of the admission of particular evidence. The fundamental question is whether the court may be subjected to such a proceeding or whether, to preserve "the purity of its own temple" ^[F359] , it will decline, on public policy grounds, to become involved in the proof of an offence where the commission of that very offence has been brought about by avowedly unlawful conduct on the part of law enforcement officers ^[F360] . This is a circumstance doubly objectionable. It is not simply a case where law enforcement officers have engaged in clearly improper conduct. It is a case where such conduct has actually procured the commission of the very offence with which the applicant stands charged ^[F361] . Nothing in Div 3 of the Act alters that situation in the slightest.

216. The Parliament cannot give a direction to a court obliging it to disregard such a fact. Least of all can it do so in a law addressed in substance to a very small number of particular accused already before the courts and by a direction of limited application confined to their particular cases. It follows that s 15X of the Act amounts to an impermissible legislative intrusion upon, or derogation from, the judicial power committed by the Constitution to the courts. The law is therefore of no effect. It being clear that the only basis for the application of the Crown to lift the permanent stay earlier provided by Judge Crossley was s 15X, that application was bound to fail. It should therefore be dismissed. As in Ridgeway, it should be left to the appropriate authorities to determine whether the proceedings brought against the applicant for offences under the law of Victoria should be continued ^[F362] .

The Construction Point

217. In light of this conclusion it is strictly unnecessary for me to decide the alternative argument which the applicant advanced should his constitutional submissions fail. He argued that, in its terms, s 15X was intended to have, and to have only, a prospective operation. Accordingly, where the section spoke of "determining ... whether evidence ... should be admitted" the Act was intended to apply to future applications for the admission of tainted evidence and not to a case already determined against the prosecution in accordance with Ridgeway. There was no substance in this point. Once it was accepted that the permanent stay provided to the applicant could be lifted it would have been open to the Crown to re-tender its evidence for there was no impediment forbidding its admission. Division 3 would then apply and any "determination" by the trial judge made after the Act came into effect would, had s 15X been valid, necessarily have to be made in accordance with its terms. However, s 15X being invalid, the question is not, in the view which I take, presented for decision.

Orders

218. I favour the following orders:

1.

Declare that s 15X of the Crimes Amendment (Controlled Operations) Act 1996 (Cth) is invalid as contrary to the Constitution.

2.

Remit the cause to the County Court of Victoria to be determined according to law.