Nicholas v R

193 CLR 173

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(Judgment by: McHugh J)

NICHOLAS v REGINA

Court:

Judges: Brennan CJ
Toohey
Gaudron

McHughGummow
Kirby
Hayne 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:
McHugh J

85. The principal questions in this cause removed under s 40 of the Judiciary Act 1903 (Cth) are:

(1)

whether s 15X of the Crimes Amendment (Controlled Operations) Act 1996 (Cth) is invalid because it infringes or usurps the judicial power of the Commonwealth; and

(2)

whether, if valid, s 15X has any application to an accused person who has the benefit of an order permanently staying proceedings against him if the order was made prior to the commencement of s 15X.

86. The first question should be answered, Yes. It is therefore unnecessary to answer the second question.

The History of the Proceedings

87. By an indictment presented in the County Court of Victoria in Melbourne on 10 October 1995, David Michael Nicholas ("the accused") was charged with four drug-related offences. The first two charges alleged the possession of prohibited imports contrary to s 233B(1)(c) of the Customs Act 1901 (Cth). The remaining two charges alleged contraventions of s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Customs Act is a law of the Commonwealth within the meaning of s 76(ii) of the Constitution. Upon the presentment of the indictment, therefore, s 68 of the Judiciary Act invested the County Court with federal jurisdiction pursuant to s 77(iii) of the Constitution. Consequently, the trial of the indictment involved an exercise by a State court of the judicial power of the Commonwealth.

88. Uncontested evidence at the accused's committal established that the relevant prohibited imports had been imported into Australia by Australian and Thai law enforcement officers in contravention of s 233B(1)(b) of the Customs Act . The accused pleaded not guilty to all charges in the indictment at his initial arraignment and at his re-arraignment on 27 March 1996.

89. On 20 May 1996, the accused applied to Crossley J for a permanent stay of the proceedings against him in respect of the first two charges in the indictment. In support of his application, he relied on Ridgeway v. The Queen ^[F106] , a decision in which this Court held that evidence of an importation contrary to s 233B should have been excluded because Australian Federal Police officers had committed offences against that section in arranging for the importation. On 27 May 1996, his Honour granted the application.

90. The Crimes Amendment (Controlled Operations) Act 1996 (Cth) ("the Act") came into effect on 8 July 1996. If s 15X of the Act is valid, it arguably prevents the accused from relying on Ridgeway . On 31 July 1996 the Crown relied on the Act in support of an application to vacate the stay of proceedings ordered by Crossley J. The accused subsequently gave notice of his intention to challenge the constitutional validity of the Act. The proceedings were adjourned sine die on 5 August 1996 after Crossley J was informed of the necessity for notices of a constitutional matter to be served pursuant to s 78B of the Judiciary Act . On 13 December 1996, the cause pending against the accused, in so far as it concerned the validity of the Act, was removed into this Court pursuant to s 40 of the Judiciary Act .

The Scheme of the Act

91. The long title of the Act is "An Act to amend the Crimes Act 1914 ^[F107] 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 effect of the Act is to insert a new Pt 1AB into the Crimes Act . The new Pt 1AB contains three Divisions. Division 1 sets out the objects of Pt 1AB, which include ^[F108] :

"to exempt from criminal liability law enforcement officers who, in the course of controlled operations authorised as provided under this Part:

(i)

take an active part, or are otherwise involved, in the importation or exportation of narcotic goods; or

(ii)

are involved in activities relating to the possession of narcotic goods".

92. Section 15G(2) provides that "[s]ubject 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".

93. Division 2 of the new Pt 1AB operates in relation to controlled operations ^[F109] that were not started prior to the commencement of Pt 1AB. The key provision in Div 2 is s 15I. Section 15I(1) provides that law enforcement officers will not be liable for narcotic goods offences committed for the purposes of a controlled operation if at the time when the officers engage in the conduct that would otherwise constitute the offences, there is in force a certificate given under s 15M ^[F110] authorising the controlled operation. Section 15I(3) sets out a similar exemption from liability for members of State police forces. However, s 15I(1) and (3) do not apply where the law enforcement or police officer's conduct "involves intentionally inducing the person targeted by the operation to commit an offence against section 233B of the Customs Act 1901 or an associated offence" or "the person would not otherwise have had the intent to commit that offence or an offence of that kind" ^[F111] .

94. Significantly, sub-s 15I(6) provides:

"If, because of subsection (1) or (3), a person who has imported narcotic goods into Australia is not liable for an offence under paragraph 233B(1)(b) of the Customs Act 1901 , the narcotic goods are, nevertheless, for the purposes of section 233B of that Act, taken to be goods imported into Australia in contravention of that Act."

95. Division 3 of the new Pt 1AB, which is the crucial Division for present purposes, operates in relation to controlled operations started prior to the commencement of Pt 1AB ^[F112] . The key provision in Div 3 is s 15X, which, as I have said, is expressed in s 15G(2) to be an exception to the Act's intention not to exclude a court's discretion to exclude evidence in criminal proceedings or to stay criminal proceedings. Section 15X provides:

"In determining, for the purposes of a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence in importing the narcotic goods, or in aiding, abetting, counselling, procuring, or being in any way knowingly concerned in, their importation is to be disregarded, if:

(a)

the law enforcement officer, when committing the offence, was acting in the course of duty for the purposes of a controlled operation; and

(b)

for the purposes of the operation:

(i)

the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901 ), be exempted from detailed scrutiny by officers of the Australian Customs Service; and

(ii)

the request for exemption was granted."

96. The plain effect of s 15X is to direct courts exercising the judicial power of the Commonwealth to disregard a fact that in Ridgeway was determinative of a decision to exclude evidence.

The Decision in Ridgeway v. The Queen

97. In Ridgeway , this Court held that there is a judicial discretion to exclude evidence proving an element of a criminal offence where the existence of the element is the result of illegal and perhaps improper conduct on the part of law enforcement officers. In Ridgeway , a case involving a prosecution in a State Court of an offence against the Customs Act and therefore involving the exercise of the judicial power of the Commonwealth, Australian Federal Police officers had imported heroin into Australia for the purpose of selling it to Ridgeway. A majority of the Court ^[F113] found that the importation was illegal and that the public interest required that evidence of the importation be excluded. Because the offence could not be proved without evidence concerning the illegal importation, Mason CJ, Deane and Dawson JJ concluded that a permanent stay of the proceedings was necessary ^[F114] . Brennan and Toohey JJ held that Ridgeway was entitled to be acquitted of the charge founded on s 233B of the Customs Act .

The Basis of the Ridgeway Discretion

98. Undoubtedly, s 15X has a significant effect on the manner in which a court is entitled to exercise the Ridgeway discretion in specific circumstances. The accused submits that this effect is impermissible given the fundamental purpose that the discretion serves. He relies strongly on the statement of Mason CJ, Deane and Dawson JJ in Ridgeway ^[F115] that "[t]he basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes".

99. The Ridgeway discretion to exclude evidence of an illegally procured offence is a development of the so-called Bunning v. Cross ^[F116] discretion which hitherto had been confined to excluding unlawfully obtained evidence. In Bunning v. Cross , this Court said that the following statement of Barwick CJ in R v. Ireland ^[F117] represented the law in Australia:

"[w]henever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

100. Although the Bunning v. Cross discretion was originally established in relation to "real" (non-confessional) evidence which had been obtained unlawfully ^[F118] , in the light of subsequent decisions of this Court, including Ridgeway , the discretion now extends to the exclusion of confessional evidence ^[F119] and to evidence which has been improperly obtained ^[F120] or unlawfully or improperly created.

101. Ridgeway did more, however, than extend the Bunning v. Cross discretion to cases where the illegal or improper conduct of law enforcement officers has created one of the elements of an offence. The joint judgment of Mason CJ, Deane and Dawson JJ and the judgment of Gaudron J make it clear that this discretion depends on the necessity to preserve the integrity of the administration of justice and to protect the processes of the courts of justice. Thus, Mason CJ, Deane and Dawson JJ, after noting ^[F121] that the considerations of "high public policy" which justify the existence of the discretion in the traditional Bunning v. Cross type of case apply equally to Ridgeway type cases, went on to say ^[F122] :

"In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime ... If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be ' demeaned by the uncontrolled use of the fruits of illegality in the judicial process '." (my emphasis)

102. Later their Honours said ^[F123] that the "discretion is properly to be seen as an incident of the judicial powers vested in the courts in relation to criminal matters". When their Honours came to exercise the discretion in the circumstances of the case, they said ^[F124] :

"The critical question was whether, in all the circumstances of the case, the considerations of public policy favouring exclusion of the evidence of the appellant's offence, namely, the public interest in maintaining the integrity of the courts and of ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement, outweighed the obvious public interest in the conviction and punishment of the appellant of and for the crime against s 233B(1)(c) of the Act of which he was guilty." (my emphasis)

103. Gaudron J said ^[F125] :

"But what is more important is that the administration of justice is inevitably brought into question, and public confidence in the courts is necessarily diminished, where the illegal actions of law enforcement agents culminate in the prosecution of an offence which results from their own criminal acts. Public confidence could not be maintained if, in those circumstances, the courts were to allow themselves to be used to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf.

So far as public confidence in the administration of justice is concerned, the position is even worse if, as is usually the case, the law enforcement agents or those acting on their behalf are not brought to account for their criminal acts."

104. These passages make it plain that, so far as four of the six majority judges were concerned, the discretion exists, inter alia, because it is necessary to protect the processes of the courts of law in administering the criminal justice system. For that reason, it is "an incident of the judicial powers vested in the courts in relation to criminal matters" ^[F126] .

105. The Bunning v. Cross and Ridgeway discretions must therefore be distinguished from the judicial discretion that enables judges to exclude evidence on the basis of unfairness to the accused if that evidence was admitted ^[F127] . Unlike Scotland and New Zealand, where the courts exercise a similar judicial discretion, the Bunning v. Cross discretion is not rooted in notions of ensuring a fair trial to the accused ^[F128] . The rationale for the Bunning v. Cross discretion and the variant of that discretion developed in Ridgeway is wider. Indeed, the element of fairness to the accused is almost irrelevant. Irrespective of any question of fairness to the accused, the Bunning v. Cross discretion will be exercised where "considerations of 'high public policy' relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty" ^[F129] .

The Contentions of the Parties

106. The accused contends that the exercise of the judicial discretion enunciated in Ridgeway requires an exercise of judicial power ^[F130] . He contends that, in requiring a court exercising federal jurisdiction to disregard "the fact that a law enforcement officer committed an offence in importing the narcotic goods, or in aiding, abetting, counselling, procuring, or being in any way knowingly concerned in, their importation" ^[F131] , Parliament has infringed or usurped the judicial power of the Commonwealth in the trial of offences against s 233B of the Customs Act and associated offences. The Crown responds by contending that s 15X is merely a legislative limitation on the operation of an evidentiary rule and does not infringe or usurp Commonwealth judicial power. The resolution of these contentions requires consideration of the constitutional doctrine of the separation of powers and of the nature of the judicial power of the Commonwealth.

Judicial Power and the Constitutional Doctrine of the Separation of Powers

107. Section 71 of the Constitution provides that "[t]he judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction". In Huddart, Parker & Co Pty Ltd v. Moorehead ^[F132] , Griffith CJ defined judicial power as:

"the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."

108. In Fencott v. Muller ^[F133] , this Court said that:

"The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion."

109. These definitions are not exhaustive. They are simply descriptive of factors that are usually present when a tribunal is called on to exercise judicial power. Thus, although much emphasis has been given to the need for judicial power to involve binding and authoritative decisions between subjects or between subjects and the Crown, it is clear that not every binding and authoritative decision made in the determination of a dispute between such parties will constitute the exercise of judicial power ^[F134] . Similarly, although judicial power requires a determination of existing rights and duties according to law, an exercise of an administrative or arbitral power may also involve a determination of existing rights and duties ^[F135] . It is also probably necessary for a decision to be enforceable before it can be said to have been given in the exercise of judicial power ^[F136] although the enforcement need not be undertaken by the Court responsible for the exercise of the power ^[F137] . For present purposes, however, it is unnecessary to attempt any more precise definition of judicial power than that which appears in Huddart, Parker and Fencott .

110. Section 71 and Ch III of the Constitution give effect to the doctrine of the separation of powers by divorcing judicial from executive and legislative power ^[F138] . Chapter III is "an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap III" ^[F139] . Moreover, as I pointed out in Kable v. Director of Public Prosecutions (NSW) ^[F140] , a basic principle which underlies the distinction between judicial and legislative or executive power and the doctrine of the separation of powers premised on that distinction "is that the judges of the federal courts must be, and must be perceived to be, independent of the legislature and the executive government".

111. If the doctrine of the separation of powers is to be effective, the exercise of judicial power needs to be more than separate from the exercise of legislative and executive power. To be fully effective, it must also be free of legislative or executive interference in its exercise. As a result, legislation that is properly characterised as an interference with or infringement of judicial power, as well as legislation that purports to usurp judicial power, contravenes the Constitution's mandate of a separation of judicial from legislative and executive power.

Infringements and Usurpations of Judicial Power

112. The distinction between an infringement and a usurpation of judicial power is of little, if any, practical importance but, speaking generally, an infringement occurs when the legislature has interfered with the exercise of judicial power by the courts and an usurpation occurs when the legislature has exercised judicial power on its own behalf. Legislation that removes from the courts their exclusive function "of the adjudgment and punishment of criminal guilt under a law of the Commonwealth" ^[F141] will be invalidated as a usurpation of judicial power. In Chu Kheng Lim v. Minister for Immigration ^[F142] , a majority of this Court declared s 54R of the Migration Act 1958 (Cth) to be invalid because, in enacting this section, the Parliament of the Commonwealth had usurped the judicial power of the Commonwealth. Section 54R provided that courts were not to order the release from custody of a "designated person", a term that was defined in the legislation by reference to, inter alia, non-citizenship and illegal entry into Australia. Brennan, Deane and Dawson JJ, with whom Gaudron J was in general agreement, construed s 54R as purporting to prevent a court from ordering the release from custody of a person being held unlawfully ^[F143] . Their Honours stated ^[F144] that where Parliament purports to direct the courts as to the manner and outcome of the exercise of their jurisdiction, this will constitute "an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates". Brennan, Deane and Dawson JJ said ^[F145] :

"A law of the Parliament which purports to direct, in unqualified terms, that no court, including this Court, shall order the release from custody of a person whom the Executive of the Commonwealth has imprisoned purports to derogate from that direct vesting of judicial power and to remove ultra vires acts of the Executive from the control of this Court. Such a law manifestly exceeds the legislative powers of the Commonwealth and is invalid."

113. A legislature clearly usurps judicial power when it brings down a "legislative judgment" directed against specific individuals. In Liyanage v. The Queen ^[F146] , the Judicial Committee of the Privy Council held that the Criminal Law (Special Provisions) Act 1962 (Ceylon) usurped and infringed judicial power and was therefore invalid. This Act modified the Criminal Procedure Code applicable in Ceylon by purporting to legalise ex post facto the detention of persons imprisoned in respect of an attempted coup, to widen the class of offences for which trial by three judges nominated by the Minister of Justice sitting without a jury could be ordered, to validate retrospectively arrests for certain offences made without warrant and to prescribe new minimum penalties for the offence of waging war against the Queen. The legislation was held to involve "a grave and deliberate incursion into the judicial sphere" ^[F147] which was inconsistent with the separation of judicial from legislative power required by the Constitution of Ceylon. Professor Lane has said that judicial power is usurped according to Liyanage when there is "(a) legislative interference 'in specific proceedings'; (b) the interference 'affect[s] ... pending litigation' ... (c) the interference affects the judicial process itself, that is, 'the discretion or judgment of the judiciary', or 'the rights, authority or jurisdiction of [the] court'" ^[F148] .

114. Similarly, in Polyukhovich v. The Commonwealth (War Crimes Act Case) ^[F149] , members of this Court ^[F150] said that there would be a usurpation of judicial power if a law inflicted punishment on specified persons without a judicial trial. However, the majority of the Court ^[F151] held that s 9 of the War Crimes Act 1945 (Cth), which had been amended in 1988 to declare certain acts committed in Europe between 1939 and 1945 to be indictable offences against the Act, did not usurp the judicial power of the Commonwealth. Because s 9 of the War Crimes Act allowed the courts to determine whether a person engaged in conduct contrary to the Act, it was a valid law of the Commonwealth, despite the retrospectivity of its operation.

The Present Case

115. The present case is not covered by the factual situations involved in any of the cases outlined above. Section 15X does not contemplate a "legislative judgment" against specified individuals, nor does it serve to inflict punishment on specified persons without a judicial trial or to adjudge criminal guilt. Nor does it direct the federal courts not to make a finding concerning rights or duties that an accused person would otherwise be entitled to under the existing law or to change the direction or outcome of pending judicial proceedings. It does, however, direct courts exercising federal jurisdiction to disregard a fact that is critical in exercising a discretion that is necessary to protect the integrity of Ch III courts and to maintain public confidence in the administration of criminal justice. That being so, s 15X infringes the judicial power of the Commonwealth just as effectively as if it purported to change the direction or outcome of pending proceedings.

116. The Act was expressed ^[F152] to be a direct response to a call for legislative intervention made by members of this Court in Ridgeway . In that case, Mason CJ, Deane and Dawson JJ responded to the argument that deceit and infiltration are of particular importance to the effective investigation and punishment of drug trafficking by saying ^[F153] :

"Such an argument must, however, be addressed to the Legislature and not to the courts. It if 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."

117. The explanatory memorandum to the 1996 Bill ^[F154] that became the Act gives the following explanation of the intended operation of the Act:

"By exempting law enforcement officers from criminal liability for certain conduct related to importation, exportation or possession of narcotic goods, the Bill will ensure that evidence resulting from such conduct is not excluded from evidence under the principles enunciated in Ridgeway . The transitional provisions of the Bill directly reverse the discretionary principles laid down in Ridgeway in the case of certain importations carried out under conditions agreed by the Australian Federal Police and Australian Customs Service." (my emphasis)

118. When the 1996 Bill was read for a second time on 20 June 1996, the Attorney-General for the Commonwealth stressed that the Bill was not intended to decriminalise prohibited importations by law enforcement officers ^[F155] :

"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."

119. Read literally, s 15X of the Act seeks to do no more than exclude evidence of "the fact that a law enforcement officer committed an offence in importing the narcotic goods, or in aiding, abetting, counselling, procuring, or being in any way knowingly concerned in, their importation". Despite the statements in the Explanatory Memorandum, it does not in terms abolish the Ridgeway discretion. Indeed, it does not even direct the court to disregard whether the conduct of the law enforcement officers brings the administration of criminal justice into disrepute. Read literally, the section excludes from consideration only the illegal quality of a law enforcement officer's conduct. On that view, an accused person can still prove that a person acting on behalf of the law enforcement officers committed an offence against s 233B and can still prove the bare fact that a law enforcement officer was responsible for the importation of the goods.

120. If this construction of s 15X is correct, it may be possible to exclude the evidence in a Ridgeway situation even though the criminality of the law enforcement officers cannot be taken into account. In addition, the accused arguably may be able to prove that a law enforcement officer has committed an offence against s 233B of the Customs Act in so far as the commission of the offence is relevant to the credibility of the officer's evidence. But, even if s 15X does no more than exclude the bare fact of a law officer's criminality from consideration in the exercise of the discretion to exclude evidence that the goods were imported into Australia, the section does strike at the core of a Ch III court's power to protect the integrity of its processes. As a result, it makes it more difficult to maintain public confidence in the administration of criminal justice by those courts.

121. Section 15X operates on the hypothesis that law enforcement officers have committed an offence against s 233B and that it is their criminal conduct that has brought into existence an essential element of the charge against the accused. Yet the section then directs courts exercising the judicial power of the Commonwealth to disregard the critical fact that the offence by the accused exists as a result of the criminal conduct of a law enforcement officer. That is to say, s 15X directs those courts to shut their eyes to a fact that, according to Ridgeway , is crucial in determining whether the integrity of the processes of federal courts are being demeaned. Expressly and by implication, the Parliament is saying to courts exercising federal jurisdiction in respect of importations occurring before s 15X was enacted: "Although the evidence may convincingly demonstrate to you that a law enforcement officer has committed a crime in order to establish an essential element of the crime for which he or she has prosecuted the accused, you must disregard the fact that that officer has committed that crime. You must disregard that fact even though the High Court of Australia in Ridgeway regarded that fact as crucial in holding ^[F156] that 'the public interest in maintaining the integrity of the courts and of ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement' outweighed the public interest in convicting the guilty." I cannot accept the claim that such a direction does not infringe the judicial power of the Commonwealth.

122. Section 15X in my opinion is not comparable with those enactments, commonly found in the statutes of the Parliament and the legislatures of the States, that regulate judicial discretions by requiring this or that matter to be taken into account. Such enactments are in the same category as legislative definitions. They give definition to some standard that governs the rights and duties of the parties - for example, by directing a court to take into account various matters in determining whether conduct is fair or reasonable or whether it is just and equitable to make some determination affecting the rights and duties of the parties. Section 15X is not of that order. It is a direction to a court exercising federal jurisdiction that it cannot have regard to a fact that is relevant and often critical in determining whether the court's processes are being demeaned. It is true that under Ridgeway the ultimate issue is whether evidence establishing an element of a criminal charge should be rejected. But if that evidence is rejected, it is partly, perhaps wholly, because the processes of the court would be demeaned if the evidence was admitted. What s 15X does is to prevent a court exercising federal jurisdiction from considering a fact which is a relevant step in determining whether its process is being demeaned. Its effect is to hamper, and in some cases to prevent, such a court from protecting its processes and thereby maintaining public confidence in courts exercising the judicial power of the Commonwealth.

123. Nor is s 15X comparable with those enactments regulating the admission of evidence or governing the practice and procedures of courts exercising federal jurisdiction. It is clear that Parliament can enact evidentiary rules ^[F157] relating to proof of the offences that it creates. No constitutional reason exists to prevent the Parliament from altering the common law rules of evidence or the rules of practice and procedure enshrined in Rules of Court. In Williamson v. Ah On ^[F158] , Higgins J said:

"The argument that it is a usurpation of the judicial power of the Commonwealth if Parliament prescribe what evidence may or may not be used in legal proceedings as to offences created or provisions made by Parliament under its legitimate powers is, to my mind, destitute of foundation."

124. The New South Wales Court of Appeal expressed similar sentiments in Chau v. Director of Public Prosecutions ^[F159] in dealing with a law relating to bail applications. The Court rejected a challenge to a provision of the Bail Act 1978 (NSW) which reversed the presumption of bail. Kirby P dismissed the argument that s 8A of the Bail Act intruded on the judicial function, finding it to be merely "an extension and adaptation of what was the previous common law position as judged to be necessary for the effective functioning of criminal justice in cases such as this" ^[F160] . His Honour said ^[F161] that statutory guidance for the judiciary would not necessarily usurp the powers of Ch III courts and that statutory guidance for judicial discretions was "clearly acceptable so long as it does not amount to a purported usurpation of the judicial function".

125. However, s 15X is no mere evidentiary rule or rule of practice. It strikes at the capacity of a court, exercising federal jurisdiction, to protect its processes. True it is that the section does not take that power away from such a court. But it does direct that court to disregard a fact that in Ridgeway was, and in other cases might be, critical to the exercise of the power.

126. Nor is s 15X comparable with an enactment which merely reverses the conclusion of a federal court as to what the public interest requires. Leaving aside cases concerned with Ch III, nothing in the Constitution prevents the Parliament of the Commonwealth, otherwise acting within its powers, from altering a federal court's finding concerning the public interest or what it requires in particular circumstances. So far as Ch III is concerned, however, the power of the Parliament of the Commonwealth to determine whether or not the public interest requires certain conduct to be characterised as an abuse of a federal court's process is limited by the Constitution's separation of judicial from legislative power. Consistently with maintaining the independence of the federal judiciary which Ch III of the Constitution guarantees to the nation, the federal courts cannot transfer to the Parliament of the Commonwealth the power or responsibility for defining what is an abuse of their process ^[F162] . Parliament, for example, cannot prevent a litigant from invoking the jurisdiction of this Court by declaring conduct to be an abuse of process when it is not. Similarly, Parliament cannot prevent this Court from protecting its process by declaring conduct not to be an abuse of process when it is an abuse of process. It is a necessary corollary of the last proposition that Parliament cannot hamper this Court or other federal courts in determining whether conduct is an abuse of process or has a tendency to undermine public confidence in their administration of justice.

127. The capacity of the federal courts to protect themselves from abuse of their processes and the necessity for those courts to maintain public confidence in the administration of justice is of the highest constitutional importance. It is to the courts exercising federal jurisdiction - particularly to this Court and the courts created under s 71 of the Constitution - that the governments and citizens of Australia look to protect them from contraventions of federal law and the Constitution. If the processes of those courts are demeaned, loss of public confidence in the impartiality and integrity of the federal courts is likely to ensue. If that occurs, the Australian federation must inevitably be damaged.

128. Section 15X is invalid ^[F163] .

Order

129. The matter should be remitted to the County Court to be determined according to law.