Validity of provision creating offence
104There were, in substance, two primary issues to be determined in this Court. The first was whether the charges prepared by the prosecutor were defective in terms of their pleading. The second concerned the validity of s 26 of the Occupational Health and Safety Act 2000 (NSW), which, in combination with s 8(1) of that Act, constituted the legal basis for the charges. Logically, the latter question should be considered first. The answer to that question does not depend upon how the charges were formulated in the present case, nor the approach adopted by the Industrial Court in other cases, nor the conviction rate in the Industrial Court; rather, it depends upon the proper construction of the section within the statutory scheme and correct identification of the constitutional provision which, when applied to the section properly construed, would result in invalidity.
105It is important to identify the constitutional principle against which the legislation is to be tested. In that regard, it is important to bear in mind that statutory invalidity invokes a constraint on legislative power and that the legislative power in question is that of the State, not the Commonwealth. The provision creates a statutory offence, the subject matter of which lies within the constitutional limits of the State legislature. At the heart of the applicants' argument is the proposition that the offence is defined in terms which permit conviction without the proper exercise of judicial power. The Constitution prevents a State legislature conferring a power on a State court incompatible with the status of that court as a potential recipient of federal judicial power. So understood (in broad terms, which require some refinement) the argument turned not solely on the terms of s 26, but the operation of s 105 of the Occupational Health and Safety Act , which conferred jurisdiction in respect of proceedings for an offence, including an offence under s 26, in the following terms:
" 105 Summary procedure for offences
(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily:
(a) before a Local Court constituted by a magistrate sitting alone, or
(b) before the Industrial Relations Commission in Court Session."
106It is not in doubt that the principle of the separation of powers, as revealed in the Constitution, imposes greater restraints on the Commonwealth Parliament with respect to the exercise of federal judicial power than it imposes on State legislatures in respect of their own courts, even if potential recipients of federal judicial power. Accordingly, it is permissible to consider whether State legislation would contravene the relevant constitutional principle, had it been enacted by the Commonwealth Parliament as jurisdiction conferred on federal courts with the consequence that, if it passed that test, it must also clear the lower hurdle in respect of State legislation: H A Bachrach Pty Ltd v State of Queensland [1998] HCA 54; 195 CLR 547 at [14]. However, there are risks in adopting such an approach. First, it is apt to lead to an erosion of the basic distinction between the two situations. Secondly, it distracts attention from the characteristics and jurisdiction of the State court in question. Thus, s 105, for example, did not confer any jurisdiction on the Supreme Court. The essential characteristics of the Supreme Court are protected from interference by the State legislature because, in part, such courts are expressly identified in the Constitution as part of the "unitary national system of law" identified by Deane J in Breavington v Godleman [1988] HCA 40; 169 CLR 41 at 121 speaking of the general law, though not of course statutory law, and adopted in respect of the institutional structure of judicial power in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51.
107The argument for the applicants in the present case bore some similarity to that relied upon in Baker v The Queen [2004] HCA 45; 223 CLR 513. That case involved the operation of s 13A of the Sentencing Act 1989 (NSW) (since repealed) which permitted the Supreme Court to transform a life sentence into a minimum term and an additional term, the latter being a period during which the prisoner would be eligible for release on parole. However, where a person had been subject to a recommendation by the sentencing judge that he or she should never be released, additional statutory hurdles were placed in the way of both an order under s 13A and release on parole. Section 13A(3A) required the applicant to demonstrate "special reasons", a requirement "said to be devoid of content, and illusory": at [11] (Gleeson CJ). The Chef Justice continued:
"On that premise, in its application to people the subject of non-release recommendations, s 13A involved the Supreme Court in a charade. The legislature was using the forms of judicial procedure to mask the reality of the legislative decree, which was that these people were never to be released. On that premise, as a matter of principle, the case would be very close to Kable . It is the premise that is in contest."
108The Chief Justice had earlier identified the principle in Kable as involving conferral of a power inconsistent with the exercise by the Supreme Court of federal judicial power. That principle was explained in the following terms:
"[5] The kind of inconsistency relied upon is that identified in Kable .... The principle for which that case stands as authority is that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.
[6] The strength of that principle lies in its constitutional legitimacy. It was not an invention of a method by which judges may wash their hands of the responsibility of applying laws of which they disapprove. In some of the judgments in Kable , references were made to public confidence in the courts. Confidence is not something that exists in the abstract. It is related to some quality or qualities which one person believes to exist in another. The most basic quality of courts in which the public should have confidence is that they will administer justice according to law. As Brennan CJ said in Nicholas v The Queen :
'It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice.'"
109In the passage immediately before that quoted by Gleeson CJ in Baker , Brennan CJ had said in Nicholas v The Queen [1998] HCA 9; 193 CLR 173 at [37]:
"To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute about to the level of a constitutional imperative".
110As explained in Baker by McHugh, Gummow, Hayne and Heydon JJ at [40], the argument required that the phrase "special reasons" constituted a criterion devoid of meaning. That was necessary in order to establish the "charade". Their Honours rejected that submission at [41]:
"The qualification to s 13A(3A) may be attended by difficult questions of construction. Whether or not that is so, it is a qualification to which meaning not only can, but must, be given in the context of the facts advanced in any particular case as warranting the description 'special reasons'. The fact that reasons identified as 'special' may (indeed almost certainly would) be relevant to the exercise of the power of determination does not strip the expression 'special reasons' of meaning."
111In the present case, as in Baker , the real question raised by the applicants was whether the statutory scheme embodied in s 26 of the Occupational Health and Safety Act rendered the exercise of jurisdiction by the Court "a charade", wherein judicial procedure was used as a mask for a legislative decree. That was so, the applicants submitted, because s 26 deemed each director of a company to have committed the offence committed by the company, the defences ostensibly provided in paragraphs (a) and (b), being illusory and devoid of practical content.
112The criteria to be found in s 26(1)(a) and (b) do not come close, in terms of vagueness and uncertainty, to a phrase such as "special reasons". No doubt these provisions may involve questions of construction, but they adopt relatively certain criteria. For example, the concept of "influence" in paragraph (a) may involve matters of degree, varying from insignificant to controlling. The Court may need to determine whether the relevant influence must be at least material and not insignificant. The context in which the influence is relevant is the contravention by the corporation. The contravention will need to be specified, and there may be questions as to when, prior to the contravention, the influence could have been effective. The section can thus be seen to give rise to questions of legal construction and questions requiring the determination of factual matters involving evaluative assessment. A criterion is not, for those reasons, devoid of content. Similarly, paragraph (b) envisages that the director was not necessarily in a position to control the action of the corporation in the relevant respect but, being in a position of influence, could yet exercise due diligence to prevent the contravention. The fact that a contravention occurs does not deny the possibility that due diligence was exercised.
113The applicants accepted that the reversal of the onus of proof did not render the proceedings incompatible with the exercise of judicial power. That concession was inevitable: see the examples of such laws being upheld noted by Gummow J in Nicholas at [152]. That being accepted, the suggestion that the exercise was in someway a charade, seeking to cloak a legislative decree of guilt with the false appearance of a judicial determination, cannot be sustained.