2. The alleged offences took the form of what is usually described as "scandalising the court" [1] . The essence of such an offence was stated by Rich J in R v Dunbabin; Ex parte Williams

2. The alleged offences took the form of what is usually described as "scandalising the court" [1] . The essence of such an offence was stated by Rich J in R v Dunbabin; Ex parte Williams - [1999] HCA 57 - HCA 1999 case summary — Zoe

[25]

But in any event, if Parliament chooses to pass a law which gives statutory effect to a power or obligation that is expressly or implicitly granted or imposed by the Constitution, what ground is there for denying to the enactment of the Parliament the description of a law of the Commonwealth? What ground is there for saying that it is not a law of the Commonwealth for the purpose of s 109 or s 80 of the Constitution? It is not an answer to say that because a power or obligation arises under or is imposed by the Constitution, Parliament cannot make a breach of the obligation an offence against a law of the Commonwealth for the purpose of s 80 or cannot make the power or obligation a law of the Commonwealth for the purpose of s 109 of the Constitution. Nothing in Sankey v Whitlam [49] or any other case lends any support for the proposition that the Parliament of the Commonwealth cannot do so. Section 119 of the Constitution, for example, imposes a duty on the Commonwealth to protect every State against invasion and the imposition of that duty carries with it every power necessary to fulfil the duty, without the need for legislation. But if Parliament chooses to use the combination of s 119 and the incidental power in s 51(xxxix) to pass a law to further the carrying out of its duty under s 119, surely the law is a law of the Commonwealth. Section 61 of the Constitution vests the executive power of the Commonwealth in the Queen and permits the Commonwealth to do many things without the backing of legislation. But if Parliament decides to put some aspect of executive power in statutory form, as it has on numerous occasions, the law is surely a law of the Commonwealth. By reason of "the nature of the Commonwealth as a government of the Queen" [50] , for example, the Commonwealth is entitled to priority of payment when debts of equal degree due to the Commonwealth come into competition with the debts due to other creditors in any administration of assets. That is a right which arises out of the creation of the Commonwealth under the Constitution. But if the Commonwealth legislates, as it often has, to give its debts priority in a bankruptcy or winding up, the legislation creates statutory rights in the Commonwealth and constitutes a law of the Commonwealth for the purpose of s 109 of the Constitution [51] . Indeed, by enacting a law of the Commonwealth, the Parliament may even take away from the Commonwealth its prerogative right arising from the Constitution to priority of payment for its debts [52] .

[193]

The argument that the separation of powers in the Constitution prohibits absolutely the performance by one department of the powers of any other department of the government is incorrect. The truth is that there is not and never was any clear line of demarcation between legislative, executive and judicial powers, nor can there be if efficient and practical government is to be maintained. "Rather", says Willoughby on the Constitution of the United States [207] the correct statement of the principle of the separation of powers "is that a department may constitutionally exercise any power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not so constitutionally granted, which, from their essential nature, do not fall within its division of governmental functions, unless such powers are properly incidental to the performance by it of its own appropriate functions." Thus the determination of controversies between the sovereign and its subjects, and between subjects, is part of the judicial power of the Commonwealth which from its nature does not fall within the powers of the other departments of government. But this does not involve, nor in my opinion is there any constitutional prohibition against, conferring upon the judicial department all powers connected with and incidental to the performance by it of its own functions. 1. In 1938, s 217 relevantly provided: "(1) If the court, in any application for an order of discharge either voluntary or compulsory, has reason to believe that the bankrupt has been guilty of an offence against this Act punishable by imprisonment, it may - (a) charge him with the offence and try him summarily; or (b) commit him for trial before any court of competent jurisdiction. (2) Where the court tries the bankrupt summarily it shall serve him with a copy of the charge and appoint a day for him to answer it. On the day so appointed, the court shall require the bankrupt to plead to the charge, and if the bankrupt admits the charge, or if after trial the court finds that the bankrupt is guilty of the offence, the court may sentence him to imprisonment for any period not exceeding six months." 2. R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 577. 3. 2nd ed (1929), vol 3, p 1619.

[195]

Sections 233B(1)(cb) and 235(2) do not contravene s 80 of the Constitution. Section 80 requires that if there is a trial on indictment of any offence against any law of the Commonwealth it shall be by jury. The sections now in question do not provide to the contrary. If there is a trial by jury the ordinary incidents of such a trial will apply; the judge will continue to exercise his traditional functions, and, for the purpose of imposing a sentence within the limits fixed by the law, will form his own view of the facts, provided that that view is not in conflict with the verdict of the jury. Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence. The fact that s 80 has been given an interpretation which deprives it of much substantial effect provides a reason for refusing to import into the section restrictions on the legislative power which it does not express. It has been held that s 80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. This result has been criticised, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled [210] . To understand s 80 as requiring the Parliament to include in the definition of any offence any factual ingredient which would have the effect of increasing the maximum punishment to which the offender would be liable would serve no useful constitutional purpose; indeed the Parliament might feel obliged to provide that some offences, which would otherwise be made indictable, should be triable summarily. 1. Section 235 relevantly provided: "(2) Subject to sub-sections (3) and (7), where - (a) a person commits an offence against sub-section 231(1), section 233A or sub-section 233B(1); and (b) the offence is an offence that is punishable as provided by this section, the penalty applicable to the offence is - (c) where the Court is satisfied - (i) that the narcotic goods in relation to which the offence was committed consist of a quantity of a prescribed narcotic substance that is not less than the commercial quantity applicable to that substance; or (ii) that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to that substance and also that, on a previous occasion, a court has - (a) convicted the person of another offence, being an offence against a provision referred to in paragraph (a) that involved other narcotic goods which consisted of a quantity of a narcotic substance not less than the traffickable quantity that was applicable to that substance when the offence was committed; or (b) found, without recording a conviction, that the person had committed another such offence - imprisonment for life or for such period as the Court thinks appropriate; (d) where the Court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to the substance but is not satisfied as provided in paragraph (c) - (i) if the narcotic substance is a narcotic substance other than cannabis - a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both; or (ii) if the narcotic substance is cannabis - a fine not exceeding $4,000 or imprisonment for a period not exceeding 10 years, or both; or (e) in any other case - a fine not exceeding $2,000 or imprisonment for a period not exceeding 2 years, or both. (3) Where - (a) the Court is satisfied that the narcotic goods in relation to which an offence referred to in sub-section (2) was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to that substance, but is not satisfied as provided in paragraph (c) of that sub-section in relation to those narcotic goods; and (b) the Court is also satisfied that the offence was not committed by the person charged for any purposes related to the sale of, or other commercial dealing in, those narcotic goods, notwithstanding paragraph (d) of that sub-section, the penalty punishable for the offence is the penalty specified in paragraph (e) of that sub-section. (4) An offence referred to in sub-section (1) or (2) may be prosecuted summarily or upon indictment or, where the law of the State or Territory in which the proceedings are brought makes provision for an offender who pleads guilty to a charge to be dealt with by the Court otherwise than on indictment, the Court may deal with an offender in accordance with that law." Sub-section (7) provided the penalties that may be imposed when a court of summary jurisdiction determines proceedings summarily. 2. Kingswell v The Queen (1985) 159 CLR 264 at 276-277. 3. R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Sachter v Attorney-General (Cth) (1954) 94 CLR 86 at 88; Zarb v Kennedy (1968) 121 CLR 283; Li Chia Hsing v Rankin (1978) 141 CLR 182.

At a glance

Court

Decision date

Before

Source

Judgment (215 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (83)