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[1996] QCA 471
Court of Appeal (Qld)
1996-11-22
Before Fitzgerald P, Davies J, Pincus J, Fitzgerald P, Mr P
Original judgment source is linked above.
The application of s.16(3), on that construction, to the facts of this case
There is no doubt, in my view, that reliance by the plaintiff on what the first defendant said in Parliament for the purpose of inviting the Court to draw the conclusion that his adoption, outside Parliament, of what he said in Parliament, was defamatory, comes within the literal terms of sub-s.(3)(c). The defences may also bring it within paras.(a) and (b).
A more difficult question is whether reliance in this way on what the first defendant said in Parliament impeaches or questions parliamentary proceedings; in particular whether it impairs the first defendant's freedom of speech in Parliament. I do not think that it does. The first defendant was free to say what he did in Parliament.
No impropriety is alleged against the first defendant in respect of what he said in Parliament. What is alleged against him in the Statement of Claim is that what he said outside Parliament was false and defamatory of the plaintiff. It is true that proof that what the first defendant said outside Parliament was false will also prove that what he said in Parliament was false. But that is because he incorporated the latter in his statements outside Parliament. The privilege of Article 9 applies to the statements in Parliament but not to the statements made out of Parliament even though they incorporated by reference the statements made in Parliament. This case is distinguishable in this respect from Prebble v. Television New Zealand Ltd.[33] in which the defendant, sued by a parliamentarian for defamation, was attempting to use what the plaintiff said in Parliament against him to prove dishonesty and improper motive. It does not follow from what I have said that the first defendant could be cross-examined in this action upon what he said in Parliament for the purpose, for example, of showing that what he said there, and consequently his reaffirmation outside Parliament, was made with an improper motive. But that question is not before the Court.
I would therefore conclude that the demurrer on this ground should be allowed. In summary, the allegations in paras.9 and 11 of the Statement of Claim are not capable of being in breach of s.16(3) because:
(1) that sub-section applies only to allegations which, relevantly, impeach or question the freedom of speech in Parliament; and
(2) these allegations are not capable of doing that because they are made solely for the purpose of proving what was incorporated in statements made by the first defendant out of Parliament.
The validity of s.16(3)
This question arose only on the premise that, on its proper construction, s.16(3) had the effect of preventing the plaintiff from adducing in evidence what the first defendant said in Parliament for the purpose of proving that his reaffirmation of it outside Parliament was defamatory. In view of the conclusions which I have reached therefore it is unnecessary to consider this question.
Paragraph 6(a)(i) alleges that if as alleged or impliedly alleged the publication of the matter published outside Parliament constituted publication of what was said inside Parliament then it was made in good faith for the information of the public by way of a fair report of parliamentary proceedings. It may be assumed for present purposes that the premise on which the allegation is made is correct. But even if that is so what was published out of Parliament could not be a fair report of proceedings in Parliament. What it was, as I have already indicated, was a reaffirmation by the first defendant, out of Parliament, of what he had said in Parliament. In other words it was, within the meaning of s.10(1) of the Parliamentary Privileges Act an "adoption" by the first defendant of the substance of what he said in Parliament. This demurrer should therefore also be allowed.
Paragraph 6(a)(ii) alleges that if, as alleged or impliedly alleged, the publication of the matter outside Parliament constituted publication of what the first defendant said inside Parliament then such publication constituted fair comment with respect to those matters (being part of the proceedings of Parliament) which had already been published in good faith by way of fair report of those proceedings elsewhere.
I think that there is substance in the plaintiff's contentions before this Court that what was said out of Parliament was not capable of being comment; that those statements were rather statements of adoption of what was said in Parliament together with statements of further fact. But in any event I would allow the demurrer for the reasons given by Pincus J.A.
I agree with what Pincus J.A. has said about those demurrers.
I agree, for the above reasons, with the orders proposed by Pincus J.A.
The issues arising in this demurrer are explained in the reasons of the President.
Constitutional Point: Validity of s. 16(3) of Parliamentary Privileges Act
The temptation not to heed what s. 16(3) of the Parliamentary Privileges Act 1987 says is strong; the results, if one simply applies its language, are so odd that it is hard to believe Parliament could have intended them. We have the assurance of the Privy Council and of counsel for the Attorney-General of the Commonwealth that the provision merely represents the pre-existing law; that perhaps supports the idea that one should treat the sub-section as saying something different from the meaning its language seems to convey, but such a course would be unorthodox.
It is convenient to ignore for the moment paras. (a) and (b) of s. 16(3). What is left is (c) and it prohibits among other things tendering evidence, asking questions and making statements or submissions about "proceedings in Parliament" for the purpose of:
" drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament."
For present purposes it is only necessary to add that "proceedings in Parliament" means, among other things, "all words spoken and acts done in the course of . . . or incidental to the transacting of the business of the House or of a committee".
It will be noted that there is expressed no limitation on the sorts of inferences or conclusions the drawing of which may bring the provision into operation. Legal inferences and conclusions are not excluded, subject to s. 16(5). Inferences or conclusions wholly favourable to the Parliament and its members are not excluded, nor need the inferences or conclusions have anything to do with the standing or credit of members of Parliament, past or present.
It is not clear whether "statements" made in proceedings include those emanating from the bench, but the section does not say otherwise. Perhaps statements made in judgments are not made "in" court proceedings. If they were, then even references to Hansard such as those made by the Chief Justice in Australian Capital Television Pty Ltd v. The Commonwealth [1992] HCA 45; (1992) 177 C.L.R. 106 at 130, in the course of discussing the validity of legislation, would be unlawful. Certainly much of what was said to us during argument in this case amounted to submissions concerning words spoken in Parliamentary proceedings, to invite the drawing of conclusions therefrom.
It is desirable to narrow the focus and to consider the impact of the section on defamation suits, the immediately relevant topic. But before doing so, I mention a general objection to the process of saving the validity of wide provisions such as s. 16(3) by reading them down by reference to ministerial comments in Parliament, so as to alter their meaning; this we were invited to do, I thought, by counsel for the Commonwealth Attorney-General in the present case. A disadvantage of accepting such an invitation is that it encourages the process of passing legislation which is plainly too wide, creating an additional and oppressive protective barrier, that of uncertainty. At least, it creates such a barrier while the courts, perhaps over many years, determine the true legal effect of what has been enacted. Particularly in an area such as the present, where what is involved is a conflict between the rights of parliamentarians and those of other citizens, the court should hesitate to co-operate in such a process.
To come now to the operation of the sub-section on defamation suits (by no means its only operation), it was said during the course of argument that para. (3)(c) only applies to relevant evidence - i.e. where an inference may be drawn wholly or partly from it. But that is not strictly correct; if a question is asked in court on a point which is held to be irrelevant, the paragraph still applies, as long as the purpose of the question is to invite the drawing of an inference or conclusion of the type mentioned. But, that aside, it is sufficient for present purposes to note that to tender evidence about words spoken in Parliamentary proceedings, as material to an issue in a defamation suit, is made unlawful; it does not matter to what aspect of the case the evidence is material. For example, if a parliamentarian sues for defamation, complaining of criticism of his or her Parliamentary performance, the tender of evidence of what the plaintiff said in Parliament, to invite the drawing of an inference such as that the defamatory material was unfair comment, would be unlawful. Suppose a parliamentarian is accused of having made a speech "full of deliberate lies", then one necessary step in showing that the speech did not merit that description would be to prove what was said; that process would, apart from falling within the broad prescription in para (c), be caught also by (b), because the purpose would be to establish the "credibility . . . of any person".
In Wright and Advertiser Newspapers Ltd v. Lewis (1990) 53 S.A.S.R. 416, a State parliamentarian sued in circumstances of the kind just contemplated. The newspaper had accused the parliamentarian, in effect, of telling defamatory lies about Wright in Parliament. It was contended for the Attorney-General that the words spoken in Parliament could not be used as the subject of any "submission or inference" (421); further, the Attorney argued that the court could not examine statements made in Parliament to determine their truthfulness or otherwise.
King C.J. said that if this was so the result was "remarkable"; his Honour went on:
"A Member of Parliament could sue for defamation in respect of criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation." (421)
White J. agreed, and referred to "glaring examples" of scrutiny of parliamentary speeches, in the course of litigation, by the House of Lords and the New Zealand Court of Appeal. It was the opinion of Olsson J. that the Bill of Rights was not available to a member of Parliament:
" . . . as an indirect weapon of attack, to facilitate the bringing of an action for damages by him against others by emasculating what might otherwise be valid defences available to them under the law." (447)
Suppose, in such a suit, that it happens that the parliamentarian makes no attempt to establish the truth of anything in the speech which has been attacked, then the defendant is equally disabled; the proposition that what was said consisted of untruths cannot be proved because what was said cannot be proved. The predicament would be particularly galling, one would think, for a defendant who was the subject matter of the untruths. These strange consequences are not ones which follow from a far-fetched example; criticism, perhaps strong criticism, of what politicians have said in Parliament is a common affair and particularly likely to occur where the critic's complaint is that a Parliamentary speech traduces him or her.
I referred above to the view of the Privy Council that s. 16(3) merely sets out the effect of Article 9 of the Bill of Rights 1689: Prebble v. Television New Zealand Ltd [1995] 1 A.C. 321 at 333. If there were no other reason to reject the authority of that statement, the fact that the effect of Article 9 is so uncertain, even three centuries after its enactment, is sufficient reason to do so.
It is unnecessary comprehensively to illustrate the proposition that s. 16(3) does not merely reproduce the law as it was understood to be under Article 9 of the Bill of Rights; but it may be helpful to note, without analysing, some of the authorities in which the result would have been different had a statute such as s. 16(3) applied. In the House of Lords, there is Adam v. Ward [1917] A.C. 309, in which qualified privilege was pleaded by way of defence to an action brought, based on a statement critical of the plaintiff's conduct as a parliamentarian; the plaintiff's statements made in speeches in Parliament were allowed to be proved (322, 323, 341, 342, 343, 345). More recently, I note R v. Secretary of State for the Home Department ex parte: Brind [1991] UKHL 4; [1991] A.C. 696, in which the court was invited to examine Hansard to demonstrate the correctness of what the Minister had done, in an administrative law case; the invitation was accepted. In Pepper v. Hart [1992] UKHL 3; [1993] A.C. 593, it was held, there being no statutory warrant for the course proposed, that ministerial speeches could be examined to ascertain parliamentary intention. In the two earlier cases it seems to have occurred to none of the Law Lords that examination of Hansard might be unlawful. Then there are the Australian authorities, helpfully summarised by Beaumont J. in Amann Aviation Pty Ltd v. Commonwealth [1988] FCA 24; (1988) 19 F.C.R. 223 at 226, 227.
The three constitutional principles which are relevant to the validity of the sub-section are concerned with first, improper interference with the functioning of courts exercising Federal jurisdiction; second, improper interference with the freedom to criticise and otherwise discuss political matters; and, lastly, the requirement that legislation be in terms which are reasonably proportional to legitimate legislative purposes.
For the purposes of deciding the constitutional issue here, it is unnecessary to deal with the first principle, other than to say that it is not discarded because thought to be inapplicable, but simply because application of the second and third principles appears to lead to a clearer conclusion.
The most important decision on the extent to which constitutional limitations impinge upon defamation law is Theophanous v. The Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 C.L.R. 104. It decided nothing immediately applicable to the present dispute, but the case at least provides evidence of the closeness of the relationship between the citizen's right to criticise politicians, and the content of defamation law. It is that relationship which is in issue here. I note that the principal judgment said that criticism of the views, performance and capacity of parliamentarians is "at the very centre of the freedom of political discussion" (123). In the same set of reasons, it is pointed out that the implied freedom of communication protects political discussion from exposure to onerous liability (130). I postulated above the problem confronting the traduced citizen, sued by a parliamentarian for criticism of what has been said in Parliament about the citizen; if s. 16(3) is valid, such a suit would presumably have to be decided, both as to liability and quantum of damages, on the basis that the criticism of the parliamentarian for making the speech was not shown to have any basis. In this and in other ways, s. 16 can inhibit legitimate attacks outside Parliament on what is said within it, by subjecting the critics to the risk of an unjust liability in damages.
The decisions given two years earlier, on which Theophanous is based, are Nationwide News Pty Ltd v. Wills [1992] HCA 46; (1992) 177 C.L.R. 1 and Australian Capital Television Pty Ltd v. Commonwealth [1992] HCA 45; (1992) 177 C.L.R. 106. In the former case all the judges were of opinion that a law inhibiting criticism of the Industrial Relations Commission was affected by invalidity, and all except Dawson J. reached their conclusion either on the ground of the disproportionality of the impugned legislation, or on the ground of conflict with an implied freedom of discussion, or on both such grounds. Insofar as the judges relied on disproportionality, there was a tendency to judge the legislation by reference to its impact on freedom of discussion; see in particular Mason C.J. at 34 and McHugh J. at 105; Mason C.J. said that in deciding proportionality the Court must take account of the impact of the impugned law on freedom of expression. But the real advance in the case, the recognition of a separate principle of protection of freedom of discussion of politics is, with respect, most usefully expressed for present purposes by Brennan J., as his Honour then was:
"To sustain a representative democracy embodying the principles prescribed by the Constitution, freedom of public discussion of political and economic matters is essential . . . : it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments." (47)
"No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose." (50)
That this freedom extends, in particular, to the conduct and performance of parliamentarians is clear; see per Deane and Toohey JJ. at 74.
In the second, A.C.T.V., case, a restriction on freedom of political communication was directly in issue and all the judges except Dawson J. were of opinion that the restriction was at least partly invalid. In a number of passages, the importance of defamation law in this context was recognised; in particular Brennan J. (as his Honour then was) pointed to the substantial restriction on freedom of political communication involved in certain aspects of defamation law (159). Deane and Toohey JJ. linked the notions of freedom of political communication and proportionality (174).
In Stephens v. West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 C.L.R. 211, decided on the same day as Theophanous, the authority of these decisions was accepted (232). I have noted, however, that in McGinty v. Western Australia [1996] HCA 48; (1996) 70 A.L.J.R. 200 at 243, a member of the court explicitly rejected the authority of these cases, insofar as they were based on an implied principle of representative democracy (243). The decisions are of course binding on this Court and their binding quality does not necessarily depend on that principle; they established that the Commonwealth Parliament has not an unfettered right, in legislating on the subjects which the Constitution allocates to it, to inhibit political criticism and discussion. Theophanous is authority, if authority were needed, that laws governing defamation suits may impede that protected freedom.
To return to the terms of s. 16(3), I concentrated above on the broadest provision, para. (c); unless one qualifies it in one of the ways suggested on behalf of the Commonwealth, it cannot stand, because it is in substance a simple prohibition on raising in court anything done or said in Parliament. This can interfere with freedom to attack or analyse what happens in Parliament by distorting, to the point of absurdity, the way in which defamation suits relating to that subject must be conducted. To a substantial extent the criticisms I have made of (c), insofar as it affects defamation suits, apply to paras. (a) and (b), which if valid would prevent examination in Court of the truth or fairness of most criticism of activity in Parliament.
It would no doubt be possible to save the validity of parts of each of these paragraphs, insofar as they bear on defamation suits; but it is doubtful whether this would be proper. First, to dissect these provisions out with reference to a particular subject, namely defamation, would seem inappropriate, for the constitutional problems involved in subs. (3) - for example, with respect to crimes committed in Parliament - extend well beyond the sphere of defamation. Secondly, I am impressed by the reluctance of members of the High Court, in the 1992 judgments, to effect severance in such a context: see in particular Brennan J. (as his Honour then was) at p. 61, Deane and Toohey JJ. at p. 80, and Dawson J. at p. 91 of 177 C.L.R. Thirdly, as was pointed out during the course of argument in the present case, there is a neat method of severance built into s. 16, by simply treating the whole of subs. (3) as invalid, leaving the pre-existing law operating. But it is unnecessary for present purposes to determine whether any and if so how much of subs. (3) is valid. It appears to me enough to decide, as I do, that it does not validly operate with respect to the conduct of defamation suits.
The demurrer attacks in ground 1(a) what is pleaded in para. 3A of the second further amended defence of the first defendant. Paragraph 3A raises only s. 16(3) of the Parliamentary Privileges Act 1987-1988 and so there is no occasion to determine at this stage the impact of the law of Parliamentary privilege on the suit, apart from s. 16(3), dealt with above.
Next, para. 1(b) of the demurrer raises the question whether publication of the matter complained of in the statement of claim is "capable of being a fair report in good faith for the information of the public of proceedings in a House of Parliament". This part of the demurrer attacks para. 6(a)(i) of the defence which alleges, in substance, that what was said outside Parliament by the first defendant constituted publication of what he had said in Parliament then such publication constituted such a report as I have mentioned. The point being made can be put in the form of a dilemma: if the publication outside Parliament incorporates that inside Parliament, then it is a fair report; if it does not incorporate that then it is innocuous. Whatever the merits of this reasoning, the difficulty the first defendant faces, is that it is not in fact alleged that the publication of the matter set out in para. 13 or para. 14 of the statement of claim (outside Parliament) constituted publication of the material set out in para. 9 or para. 11. That is, unless the plaintiff's pleading complains of defamation by publication of what was said in Parliament - and the plaintiff makes no such complaint - no question of the defamatory matter constituting a fair report can arise. The allegation which is, wrongly, attributed to the plaintiff is at best for the first defendant an inference, rather than an implication: see Lubrano v. Gollin & Company Pty Ltd [1919] HCA 61; (1919) 27 C.L.R. 113 at 118. Therefore, the demurrer must, as to para. 6(a)(i) of the defence, be allowed.
Next the plaintiff demurs to para. 6 (a)(ii) of the defence which sets up, in effect, that if publication of what was said outside Parliament constituted publication of what was said within Parliament then "such publication . . . constituted fair comment with respect to those matters (being part of the said proceedings in that House of Parliament) which had already been published in good faith by way of fair report of those said proceedings elsewhere".
This plea is subject to the same criticism as I have made of the preceding subparagraph, but to read the plea as dependent entirely upon the proposition that the plaintiff's pleading complains of publication of what was said in Parliament appears to be too strict a view. That is, the success or failure of the plea of fair comment with respect to a fair report of parliamentary proceedings does not depend upon the statement of claim having complained of publication of what was said in Parliament. A more pressing difficulty, with respect to this plea, is that the defence places in issue (by para. 4) general allegations of publication of the parliamentary material made in para. 10 and 12 of the statement of claim, whereas para. 6(a)(ii) cannot be a good plea unless there has been a "publication of a fair report in good faith for the information of the public": see s. 375(1)(a) of the Criminal Code. The defence does not allege any such publication and therefore the plea is bad.
Next, the demurrer attacks para. 7 of the defence, which raises a number of separate defences. Little was said in argument about these, but two general points are made. First, it is said that para. 7 does not "plead the facts and circumstances which are relied on as a defence". If the pleading is deficient in this respect it is a question of inadequate particulars and not a demurrer point. Then, it is argued that s. 10(1) of the Parliamentary Privileges Act 1987 is inapplicable, but no reason is given for that assertion; it seems designed to raise a factual rather than a legal issue. Also, with respect to para. 7, it is said that two pleas made under the general law are unavailable. We have had no argument on this and it seems to me plain that the Court should not deal with the points raised; cf. Campbell v. Queensland Newspapers Pty Ltd [1970] Qd.R. 302 at 308, 309. Under O. 29 r. 5(2) the Court has a discretion to direct that the issues of fact shall be first tried and that must be done, in relation to para. 7(b) and (c). Lastly, there is a general attack upon para. 8A, which raises what was called the Theophanous defence; the same applies to those issues - i.e. the issues of fact should first be tried.
1. Demurrer allowed with respect to paragraphs 3A and 6(a) of the Second Further Amended Defence of the First Defendant.
2. Demurrer overruled with respect to paragraph 7(a) of the said Defence.
3. Otherwise, with respect to the issues of law raised by the demurrer, it is directed that they be disposed of at the trial, when the relevant facts have been determined.
4. Costs of demurrer to be plaintiff's costs in the action.
[1] As stated earlier, the issues are poorly defined by the pleadings, particularly having regard to differences in the law in the various parts of Australia where the first defendant's statements were broadcast. However, the plaintiff has claimed examplary damages and the first defendant has sought to raise a variety of defences, and it was not in dispute that the action would involve both the truth or falsity of the first defendant's statements in Parliament and his "good faith", even if it might be theoretically possible to separate his "good faith" when he spoke in Parliament from his "good faith" when he made the broadcasts.
[2] Some of those decisions are referred to in the Explanatory Memorandum to the Parliamentary Privileges Bill, and see Amann Aviation Pty Ltd v. Commonwealth of Australia [1988] FCA 24; (1988) 19 F.C.R. 223.
[3] cp. Criminal Justice Commission v. Nationwide News Pty Ltd (Appeal No. 21 of 1994, unreported, 8 September 1994). See also Pepper v. Hart [1992] UKHL 3; [1993] A.C. 593, 638-640; New South Wales Branch of the Australian Medical Association v. Minister for Health and Community Services (1992) 26 N.S.W.L.R. 114.
[4] See also s. 15AB Acts Interpretation Act 1901 (Cth.), and compare sub-s. 16(6) in relation to prosecutions for offences.
[5] See also Nationwide News Pty Ltd v. Wills [1992] HCA 46; (1992) 177 C.L.R. 1; Australian Capital Television Pty Ltd v. The Commonwealth [1992] HCA 45; (1992) 177 C.L.R. 106; Cunliffe v. The Commonwealth [1994] HCA 44; (1994) 182 C.L.R. 272; Peterson v. Advertiser Newspapers Limited [1995] SASC 5018; (1995) 64 S.A.S.R. 152; The Civil Aviation Authority v. Australian Broadcasting Corporation (N.S.W. CA, 40195 of 1994, unreported, 29 June 1995) and Levy v. State of Victoria (1996) 11 Leg.Rep. 22; cf. Derbyshire County Council v. Times Newspapers Ltd [1992] UKHL 6; [1993] A.C. 534. Freedom of political discourse is a convenient, if somewhat broad, description: see Cunliffe at p. 326.
[6] cp. Prebble v. Television New Zealand Ltd [1995] 1 A.C. 321, 336.
[7] This issue falls for consideration by reference to the legislative power of the Commonwealth Parliament, not the legislative power of a State Parliament with respect to the courts of that State: see S. v. R. (1995) 12 W.A.R. 392, 401 and cases cited; the cases cited in City of Collingwood v. Victoria [No. 2] [1994] VicRp 46; (1994) 1 V.R. 652 at p. 660, and Kable v. D.P.P.(N.S.W.) (FC 96/027, High Court of Australia, unreported, 12 September 1996).
[8] At p. 150 in Harris v. Caladine [1991] HCA 9; (1991) 172 C.L.R. 84, Gaudron J. said that the exercise of judicial power "... (subject to limited exceptions) proceeds by way of open and public inquiry, which involves the application of the rules of natural justice ...".
[9] See also ss. 51(xxxix) and 71, and, for example, Peacock v. Newton, Marrickville & General Cooperative Building Society [1943] HCA 13; (1943) 67 C.L.R. 25.
[10] cf. Russell v. Russell (1976) 134 C.L.R. 495, 519-520; The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 C.L.R. 49; Harris at p. 92.
[11] The extent of this power is not finally settled: see Harris at p. 94.
[12] To the extent that Commonwealth legislation does not make other provision, the established procedures of a State court vested with federal jurisdiction apply to the exercise of that jurisdiction (Harris; D.P.P. (Cth.) v. Bayly [1994] SASC 4842; (1994) 126 A.L.R. 290), provided of course that they are consistent with Ch. III: cp. Brown.
[13] See also MacCormick v. Federal Commissioner of Taxation [1984] HCA 20; (1984) 158 C.L.R. 622, 645-646.
[14] See Victoria v. The Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 C.L.R. 25, 179; Hammond v. The Commonwealth (1982) 152 C.L.R. 188; R. v. Winneke, ex p Gallagher (1982) 152 C.L.R. 211; Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 C.L.R. 281.
[15] See Hammond, e.g. by Deane J. at p. 206; Sorby e.g. per Mason C.J., Wilson and Dawson JJ. at pp. 306ff.
[16] See Trade Practices Commission v. Pioneer Concrete (Vic.) Pty Ltd [1981] FCA 119; (1981) 36 A.L.R. 151; affd. [1982] HCA 65; (1982) 152 C.L.R. 460.
[17] Subject to a qualification not presently material in the opinion of Gaudron J.
[18] Victoria v. The Commonwealth (High Court of Australia, unreported, 4 September 1996, joint judgment of Brennan C.J., Toohey, Gaudron, McHugh and Gummow JJ. at pp. 95-96); Leask v. The Commonwealth (High Court of Australia, unreported, 5 November 1996).
[20] Sankey v. Whitlam [1978] HCA 43; (1978) 142 C.L.R. 1.
[21] Erskine May "Parliamentary Practice", 21st ed., pp. 126-128.
[22] For example, Acts Interpretation Act 1901 (Cth.), s. 15AB; Acts Interpretation Act 1954 (Qld..), s. 14B.
[23] See Pearce & Geddes, "Statutory Interpretation in Australia", 4th ed., para. 3.2.
[24] See sub-s. s 10(1) of the Parliamentary Privileges Act and compare Criminal Justice Commission v. Nationwide News Pty Ltd.
[25] Subject to statutory exceptions; e.g. sub-ss. 10(1) and 16(5) and (6) of the Parliamentary Privileges Act and s. 15AB of the Acts Interpretation Act.
[26] See Prebble at pp. 336-337. As explained in Criminal Justice Commission v. Nationwide News, the position is different in some respects in relation to the privileges and immunities of the Queensland Parliament, because of the interaction of a number of material statutory provisions.
[27] As Hunt J. thought in R. v. Murphy (1986) 5 N.S.W.L.R. 18 at 29, 30; but see contra Pepper v. Hart [1992] UKHL 3; [1993] A.C. 593 at 638E-F.
[29] Second Reading Speech, Senate, 7 October 1986, p.893. See also Second Reading Speech, House of Representatives, 19 March 1987, p.115b; Parliamentary Privileges Bill 1987 (including amendments made by the Senate), Explanatory Memorandum, p.9.
[30] The first is unreported but the second is at (1986) 5 N.S.W.L.R. 18.
[31] It also appears to derive some support from the Explanatory Memorandum, supra fn.3 at 12-14.
[32] See also Explanatory Memorandum supra fn.3 at 14.
[33] [1995] 1 A.C. 321. I leave out of account the effect which the implied freedom of political discussion would have on cases such as this.
Laurance
Katter [1996] QCA 471
The plaintiff argued that sub-s. 16(3) does not prevent him from proving what the first defendant said in Parliament and that it was false and defamatory, and that, if it did, it would be unconstitutional and invalid. The provisions in the Commonwealth Constitution upon which the Parliamentary Privileges Act is based are ss. 49 and 51(xxxix) - the "incidental power": use of those provisions for such a purpose was sanctioned in R. v. Richards, ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 C.L.R. 157. The constitutional provision of primary importance, s. 49, provides:
The first basis of invalidity of sub-s. 16(3) of the Parliamentary Privileges Act asserted by the plaintiff was that, if it had the effect which I have found, it prevented or restricted his exercise in the course of his action against the first defendant of his constitutional right to freedom of political discourse, which, it was submitted, was recognised in Theophanus v. Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 C.L.R. 104 and Stephens v. Western Australian Newspapers Ltd [1994] HCA 45; (1994) 182 C.L.R. 211.[5] Leaving aside any question concerning whether freedom of political discourse is correctly regarded as an individual right, its existence has been implied into the Commonwealth Constitution because it is seen as necessary to the effective working of our representative democracy. Parliamentary privilege and immunity are other aspects of the same fundamental public interest.[6] The reconciliation of those competing considerations is committed to the Commonwealth Parliament by s. 49 of the Constitution. As will be seen, Richards provides strong authority for giving the "very plain words of s. 49" (p. 165) their natural meaning. While an implied constitutional freedom of political discourse had not been identified at the time when Richards was decided, it would be contrary to the entire tenor of that decision to invalidate s. 16 of the Parliamentary Privileges Act by reference to such a constitutional implication, or to require it to be read down to accommodate such an implication. Indeed, unless the "powers, privileges and immunities" of the House of Commons at the establishment of the Commonwealth applied to the Senate and the House of Representatives subject to an implied constitutional freedom of political discourse despite the "very plain words of of the , either invalidating or reading down of the by reference to such a constitutional implication would have the extraordinary consequence of subjecting a law made under s. 49 to a limitation that did not apply to the "powers, privileges and immunities" which s. 49 provided were to apply until such a law was made. That cannot have been intended by those who framed the . Further, support for the view that of the does not offend an implied constitutional freedom of political discourse is to be found in John Fairfax Publications Pty Ltd v. Doe ; see pp. 496 (per Gleeson C.J.) and pp. 512ff (per Kirby P.).
In Australian Building Construction Employees' and Builders Labourers' Federation v. The Commonwealth [1986] HCA 47; (1986) 161 C.L.R. 88, the High Court said at p. 96 that the doctrine in question did not "prevent Parliament from exercising its legislative power so as to abrogate or alter rights and liabilities which would otherwise be subject to a judicial determination", and continued:
(Reg. v. Humby; Ex parte Rooney [(1973) 129 C.L.R. 231, at p. 250].) So, in Nelungaloo Pty Ltd v. The Commonwealth [(1948) [1947] HCA 58; 75 C.L.R. 495, esp. at pp. 503-504, 579-580], the validity of the Wheat Industry Stabilization Act (No. 2) 1946 (Cth) was upheld, notwithstanding that the Act validated an order for the acquisition of wheat, the validity of which was in issue in the proceedings.
The same distinction between legislation affecting substantive rights in issue in litigation and legislative interference with the judicial process was drawn in Polyukhovich v. The Commonwealth [1991] HCA 32; (1991) 172 C.L.R. 501 at p. 534 per Mason C.J. and at p. 608 per Deane J. In Mabo v. Queensland (1988) 166 C.L.R. 186, Wilson J., with whom Mason C.J. (at p. 295) and Dawson J. (at p. 241) agreed, said at p. 202:
"An essential feature of judicial power is that it be exercised in accordance with the judicial process. I attempted to identify the features of that process in Harris v. Caladine[8] [(1991) [1991] HCA 9; 172 C.L.R. 84, at pp. 150-152], and in Re Nolan; Ex parte Young [(1991) [1991] HCA 29; 172 C.L.R. 460]. To adopt the words of Kitto J. in Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [(1970) [1970] HCA 8; 123 C.L.R. 361, at p. 374], the essential features of that process include the determination of legal rights, obligations or consequences by the ascertainment of the facts as they are and as they bear on the matter for determination, and the identification of the applicable law, followed by an application of that law to those facts. Those features may be more or less obvious, depending on the issues involved and the nature of the law to be applied. At one extreme, the law to be applied may require the assigning of future rights and obligations attaching to or in consequence of a legal relationship in the exercise of a judicial discretion in which no particular matter is decisive. At the other extreme, the law may assign distinct legal consequences by reason that a person has committed a particular proscribed act. Criminal laws are laws of the latter kind. But whatever the issues and whatever the nature of the law being applied, the power vested in a court can be exercised only on the basis of the discovered facts and by application of the law which determines the legal consequences attaching to those facts.
A power to be exercised by the application of law to facts invented by Parliament or invented according to some statutory formula or prescription would not be a power to be exercised in accordance with the judicial process and would not be judicial power. That is not to say that statutory fictions may not be employed in the course of and for the purpose of formulating the legal rights, obligations or consequences attaching to a relationship or to conduct. And, of course, they may be applied by the courts when those rights, obligations or consequences are in issue. However, the relationship or the conduct which is the basis of those rights, obligations or consequences must be real and not fictitious. A law assigning legal consequences on the basis of fictitious or invented facts may sometimes, on that account, be characterized as other than a law on a subject matter within legislative power: see Actors and Announcers Equity Association v. Fontana Films Pty Ltd [(1982) [1982] HCA 23; 150 C.L.R. 169]. Quite apart from that consideration, a law conferring power on a court to determine legal consequences on the basis that a person is who he is not or on the basis that he did what he did not would be invalid for offending Ch. III. It would be invalid because the power in question would involve a travesty of the judicial process and would, thus, be a power which, by virtue of s. 71, could not validly be conferred on a court."
"It has often been said that judicial power has not proved susceptible of exhaustive or exclusive definition: R v Davison [1954] HCA 46; (1954) 90 CLR 353, at 366; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460, at 497; [1991] HCA 29; 100 ALR 645; Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501, at 532; [1991] HCA 32; 101 ALR 545. A definition of judicial power must take account of its varying character: in some cases, the content of the power will stamp it as one which can only be exercised by courts (R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR, at 271-2, 289); in others, the content will indicate that it is a power with a `double aspect' (Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144, at 151; R v Davison at 368-9; Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 93, 147-8), in the sense that Parliament may choose whether to confer it on a court in accordance with Ch III of the or on some other body. Another feature which renders judicial power difficult to define is that it cannot be defined only in terms of its content. It is necessary to have regard to the manner in and the processes by which the power is or is to be exercised: at CLR 150.
It is an essential feature of judicial power that it should be exercised in accordance with the judicial process: Harris v Caladine at CLR 150; Re Nolan; Ex parte Young at CLR 497; Polyukhovich v. Commonwealth at CLR 703; see also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 374. A legislative direction which would require a power vested in a court to be exercised other than in accordance with that process is necessarily invalid. Its effect would be to take the power outside the concept of judicial power. And a conferral of a power of that kind would infringe the prohibition deriving from s. 71 which limits the powers which may be conferred on a court to those which are judicial or ancillary or incidental to judicial power."
It is well settled that some functions take their character from the way in which they are to be exercised and, thus, from the body on which they are conferred [See, for example, R v Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617 at 628; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 159-160; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656 at 665]. Accordingly, some functions which are not essentially judicial in character are, nonetheless, properly characterised as judicial if conferred on a court [See Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 147-148]. Chapter III permits the conferral of such functions on courts. And, of course, there is nothing to prevent the Parliaments of the States from conferring powers on their courts which are wholly non-judicial, so long as they are not repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth.
The power purportedly conferred by s 5(1) of the Act requires the making of an order, if the conditions specified in s 5(1) are satisfied, depriving an individual of his liberty, not because he has breached any law, whether civil or criminal, but because an opinion is formed, on the basis of material which does not necessarily constitute evidence admissible in legal proceedings, that he `is more likely than not' [Section 5(1)(a)] to breach a law by committing a serious act of violence as defined in s 4 of the Act. That is the antithesis of the judicial process, one of the central purposes of which is, as I said in Re Nolan; Ex parte Young [(1991) [1991] HCA 29; 172 CLR 460 at 497], to protect `the individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts which have been properly ascertained'. It is not a power that is properly characterised as a judicial function, notwithstanding that it is purportedly conferred on a court and its exercise is conditioned in terms usually associated with the judicial process.
While the present proceeding is in a State court, it is a State court invested with federal jurisdiction pursuant to sub-s. 77(iii) of the Commonwealth Constitution; further, sub-s. 16(3) is expressed in general terms, and is clearly intended to apply also to courts constituted by or under Ch. III of that Constitution. It is therefore necessary to consider whether sub-s. 16(3) conflicts with Ch. III. It is also appropriate to consider whether, in its application to State courts, sub-s. 16(3) otherwise impermissibly exceeds the legislative power of the Commonwealth Parliament in relation to State courts. The first of these issues concerns the separation of powers provided for in Chs. I, II and III of the Commonwealth Constitution, and the second concerns the distribution of powers between the Commonwealth and States which is effected by the Constitution; the federal compact is predicated upon the "continued existence as independent entities" of "a central government and a number of State governments separately organised" (Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 C.L.R. 31, 82), with power distributed among them.
The only express power in the Commonwealth Constitution for the Commonwealth Parliament to legislate in relation to State courts is sub-s 77(iii)[9] - which is in Ch. III - which permits the Commonwealth Parliament to invest State courts with federal jurisdiction. Further, there is a general implied prohibition upon Commonwealth legislation which is inconsistent with "the continued existence of the States as independent entities and their capacity to function as such", a matter "which directs attention to aspects of a State's functions which are critical to its capacity to function as a government": Re Australian Education Union, ex parte Victoria (1995) 184 C.L.R. 188, 231-232; Victoria v. The Commonwealth (4 September 1996, joint judgment, at pp. 31-32). State courts are, of course, a fundamental organ of State government, and it is at least consistent with the general constitutional prohibition to which reference has been made that the Commonwealth Parliament's power to legislate to confer federal jurisdiction on State courts is subject to limitations;[10] for example, jurisdiction can be vested only with respect to matters enumerated in ss. 75 and 76 of the Constitution (R. v. Murphy [1985] HCA 50; (1985) 158 C.L.R. 596, 613), and only judicial functions can be conferred (Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 C.L.R. 144; Murphy at pp. 613-614; Kable per Gummow J.). Further, although it may prescribe the number of judges to exercise federal jurisdiction (Constitution, s. 79), the Commonwealth can only vest federal jurisdiction in a State court as it finds it, in the sense that it cannot affect its structure or constitution or the organisation through which its powers and jurisdiction are exercised: Federated Sawmilling Timberyard & General Woodworkers' Employees' Association (Adelaide Branch) v. Alexander ; , 313; Le Mesurier v. Connor ; at pp. 495-497, 498; Adams v. Chas. S. Watson Pty Ltd ; , 554-555; Peacock at p. 37; Kotsis v. Kotsis ; ,109-110; Russell at pp. 516-517, 530, 535, 554; Hospital Contribution Fund at p. 61; Brown v. R. ; , at pp. 198-199, 206-207, 218-219; Harris 92, 107, 117, 137-138, 145-146, 158; Leeth at pp. 455, 468-469; Kable. However, the Commonwealth Parliament may determine the nature and limits of the federal jurisdiction to be exercised (Adams) and the practice and procedure to be observed in exercising federal jurisdiction (Russell at pp. 518-519, 535-536, 544-545; Brown at pp. 198-199 and cases cited; Kable).
Thus, for example, in Palling v. Corfield [1970] HCA 53; (1970) 123 C.L.R. 52, it was held that a law which permitted a prosecutor an election as to how to proceed and required that, in one set of circumstances, the court impose a specific punishment was valid. Walsh J. said at p. 68:
In Seamen's Union of Australia v. Utah Development Co. [(1979) 144 C.L.R. 120, at pp. 156-157] I indicated doubt of the constitutional validity of these provisions, although the prosecutor Seamen's Union of Australia did not challenge them. In Reg. v. Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union [(1980) [1980] HCA 42; 144 C.L.R. 462] in relation to similar provisions of the Conciliation and Arbitration Act (although the challenge to them was not pursued) it seemed to me that these were unconstitutional, although it was not necessary to express any final conclusion.
It is within the general incidental power (s. 51(xxxix)) or the specific powers in ss. 51 or 52 of the Constitution to provide that one fact or circumstance shall be presumed from the existence of another, provided there is a rational basis for the presumption. Where there is no rational basis for the presumption, then in my opinion Parliament has no power to require a court to act upon the presumption. To do so would be to undermine the judicial power. Clearer still, a law that proof of one fact is deemed to be proof of another fact, so that the party against whom the second fact is alleged is prevented from attempting to disprove it, undermines the judicial power. This does not apply where the second fact is merely another description of, or an inevitable consequence of, the first fact. Sometimes deemed may only mean presumed. Also `deeming' may be used merely as a shorthand method of legislating, so that when the provisions as a whole are considered the vice is only in the form, not the substance. But here the deeming provision is s. 45D(5) and the reference to it in s. 45D(6) create a statutory fiction (see Griffith C.J. in Muller v. Dalgety & Co. Ltd. [(1909) [1909] HCA 67; 9 C.L.R. 693, at p. 694), so that the conclusion is to be made even if it is contrary to the fact. ... Such a law is not authorized by the corporations' power or the general incidental power in s. 51(xxxix). The legislative powers in s. 51 are subject to the Constitution, including Ch. III, The Judicature. It is not consistent with the exercise of judicial power that the courts be required to make findings contrary to fact or to adjudge persons guilty or civilly liable upon proof of facts from which a rational conclusion of guilt or liability does not follow but on the basis of a legislative conclusion which is unexaminable judicially. A similar attempt to penalize persons on the basis of legislative or executive opinions unexaminable in the courts was rejected in .
"... the privilege against self-incrimination is not a necessary part of a trial by jury. Counsel for the plaintiffs sought to rely on the dissenting judgment of Dixon and Evatt JJ. in R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [(1938) [1938] HCA 10; 59 C.L.R. 556, at pp. 580-584], but that judgment (which in any case expresses a view of s. 80 which has not found general acceptance: Li Chia Hsing v. Rankin [(1978) [1978] HCA 56; 141 C.L.R. 182] does not suggest the contrary. The Parliament can, in relation to a trial by jury, alter the rules of evidence, or the rules relating to the onus of proof: see Milicevic v. Campbell [(1975) 132 C.L.R. 307, pp. 316-317, 318-319]. Indeed the Parliament has, by s. 79 of the Judiciary Act, rendered applicable to trial by jury in courts exercising federal jurisdiction in the States the laws of those States under which a person charged who gives evidence in a criminal proceeding is not entitled to refuse to answer a question on the ground that to do so would tend to prove that he committed the crime with which he stands charged, notwithstanding that, to the extent to which they apply, such laws take away the privilege against self-incrimination. There is no reason to doubt the validity of the application of such provisions to courts exercising federal judicial power. ..."
"The Constitution plainly envisages the continuation of separate State legal systems and, by empowering Parliament under s. 77(iii) to invest any court of a State with federal jurisdiction, provides a means whereby the Commonwealth may participate in those systems. In investing State courts with federal jurisdiction, the Commonwealth must take the courts as it finds them, notwithstanding the differences that exist from State to State [Le Mesurier v. Connor [1929] HCA 41; (1929) 42 C.L.R. 481; Kotsis v. Kotsis [1970] HCA 61; (1970) 122 C.L.R. 69, at pp. 88, 109, The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 C.L.R. 49, at p. 64; Harris v. Caladine [1991] HCA 9; (1991) 172 C.L.R. 84, at pp. 92, 109, 117, 138, 158].
Under s. 71 of the Constitution the judicial power of the Commonwealth is vested in the High Court, in such other federal courts as the Parliament creates and in such other courts as it invests with federal jurisdiction. In Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [(1956) [1956] HCA 10; 94 C.L.R. 254] it was held that Ch. III of the Constitution, of which s. 71 is the first section, imposes a separation of judicial power from the other powers of government. The judicial power of the Commonwealth is to be exercised by courts constituted or invested with jurisdiction under Ch. III and not otherwise. Nor is it possible to invest a court under Ch. III with non-judicial powers that are not ancillary, but are directed to some non-judicial purpose. But to speak of judicial power in this context is to speak of the function of a court rather than the law which a court is to apply in the exercise of its function. Of course, legislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly [See Liyanage v. The Queen [1967] 1 A.C. 259]. It is upon this principle that bills of attainder may offend against the separation of judicial power [See Polyukhovich v. The Commonwealth [1991] HCA 32; (1991) 172 C.L.R. 501]. But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function. It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power, but the rules of natural justice are essentially functional or procedural and, as the Privy Council observed in the , a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers.
It is obviously desirable that, in the sentencing of offenders, like offenders should be treated in a like manner [See Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606, at pp. 610-611, per Mason J.]. But such a principle cannot be expressed in absolute terms. Its application requires the determination of the categories within which equal treatment is to be measured. Its application in Australia is necessarily upon a State by State basis, for it has long been recognized that sentencing practices may not be uniform from State to State but may be affected by local circumstances [See Veen v. The Queen [1979] HCA 7; (1979) 143 C.L.R. 458, at p. 497, per Aickin J.; Neal v. The Queen [1982] HCA 55; (1982) 149 C.L.R. 305, at p. 309, per Gibbs C.J.; p. 323, per Brennan J.]. Of course, with many offences, particularly federal offences, local circumstances may, under State sentencing practices, have no bearing upon the appropriate sentence and it may be proper to have regard to sentences imposed elsewhere in Australia.
The power to set non-parole periods, purportedly conferred by s. 4(1) of the repealed Act on the various courts exercising jurisdiction with respect to offences against the laws of the Commonwealth, is a power which can be conferred on a court, if at all, only by virtue of s. 71 of the Constitution. That section provides completely and exhaustively with respect to the judicial power of the Commonwealth [See, e.g. Huddart Parker and Co. Pty. Ltd. v. Moorehead [1909] HCA 36; (1908) 8 C.L.R. 330, at p. 355; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 C.L.R. 73, at pp. 96-98, 116; Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 C.L.R., at p. 289]. One consequence of the complete and exhaustive nature of s. 71 is that a power which is not judicial or ancillary or incidental to judicial power may not be conferred on the courts named or indicated in that section [ibid., pp 271-272, 289].
There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to [Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. [1918] HCA 56; (1918) 25 C.L.R. 434, at p. 444] and `could not be excluded from' [Reg. v. Davison [1954] HCA 46; (1954) 90 C.L.R. 353, at pp. 368, 383] the judicial power of the Commonwealth [See, also, the War Crimes Act Case (1991) 172 C.L.R., at pp. 536-539, 608-610, 613-614, 632, 647, 649, 685, 705-707, 721]. That being so, Ch. III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s. 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.
The plaintiffs also contend that Div. 4B usurps the judicial power of the Commonwealth because it is a Bill of Pains and Penalties. At common law, special Acts of Parliament under which the legislature inflicted punishment upon persons alleged to be guilty of treason or felony `without any conviction in the ordinary course of judicial proceedings' [Story, Commentaries on the Constitution of the United States, 5th ed. (1891), vol. 2, p. 216] were known as Bills of Attainder and Bills of Pains and Penalties. The term `Bill of Attainder' was used in respect of Acts imposing sentences of death, the term `Bill of Pains and Penalties' in respect of Acts imposing lesser penalties [Story, op.cit., p. 216; Calder v. Bull [1804] USSC 10; (1798) 3 U.S. 386, at p. 389]. ... Thus, a Bill of Attainder or a Bill of Pains and Penalties is a law (1) directed to an individual or a particular group of individuals (2) which punishes that individual or individuals (3) without the procedural safeguards involved in a judicial trial.
I have left until last the modern decision which seems to me to involve the issue which most closely approaches the present case, and, because they are considered in that decision, I have not separately discussed a number of material authorities which are there referred to. In F.H. Faulding & Co. Ltd v. Federal Commissioner of Taxation [1994] FCA 1492; (1994) 126 A.L.R. 561, a question arose concerning the validity of sub-s. 264A(10) of the Income Tax Assessment Act 1936 (Cth.). By that provision, if a person refused to comply with a notice from the Commissioner of Taxation requiring specified information and documents, evidence of the information and documents was not admissible without the Commissioner's consent in a proceeding disputing a taxation assessment issued to that person.
(3) A legislative provision for the suppression of the truth in judicial proceedings is inconsistent with the exercise of judicial power and is unconstitutional: see, for example, Australian Communist Party v. Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 258; Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. [1982] HCA 23; (1982) 150 CLR 169 at 186, 214, 215, 223; [1982] HCA 23; 40 ALR 609; Polyukhovich at CLR 608."
The constitutional validity of a law relating to evidence and procedure has been considered by the High Court on a number of occasions. For present purposes a consideration of those cases begins with Commonwealth v. Melbourne Harbour Trust Commissioners [1922] HCA 31; (1922) 31 CLR 1. Knox CJ, Gavan Duffy and Starke JJ said in a joint judgment (at 12):
Williamson v. Ah On [1926] HCA 46; (1926) 39 CLR 95 concerned the constitutional validity of certain sections of the Immigration Act 1901 (Cth.) Section 5(3) and (3A) provided:
`The Parliament has, subject to the Constitution, power to make laws for the peace, order and good government of the Commonwealth with respect to immigration and emigration, and matters incidental to the execution of any power vested by the Constitution in the Parliament. The question in this case is whether subss (3) and (3A) of s 5 of the Immigration Act 1901 are within those powers. It is clear, we think, that a grant of power to a British Dominion to make laws for the peace, order and good government of its territory enables that Dominion, subject to any overriding Imperial legislation, to enact whatever laws of evidence it thinks expedient, and in particular justifies laws regulating the burden of proof, both in civil and criminal cases, and the effect of non-compliance with those laws in legal proceedings; and it is not for the courts of law to say whether the power has been exercised wisely or not: Hodge v. The Queen (1883) 9 App Cas 117; Union Colliery Co. of British Columbia v. Bryden [1899] AC 580. It is so with the Commonwealth within the ambit of its powers.
`Turning now to subs (3A), it in substance provides that the burden of proof thrown upon the person charged shall not be discharged unless he state truly the name of the vessel by which he travelled to Australia, etc The provision is directly connected with a substantive provision in s 5, subs (1), which is perfectly valid, and the facts required to be stated truly are in every case relevant for the purpose of determining whether a given person is or is not an immigrant within the meaning of s 5, subs (1), and in the majority of cases probably decisive. The reason for requiring the proof of these facts is based on experience. The enforcement of the Immigration Acts is "attended with great embarrassment, from the suspicious nature, in many instances, of the testimony offered" in immigration cases "arising from the loose notion entertained by the witnesses of the obligation of an oath"; cf Fong Yue Ting v. United States [1913] AC 781 at 798, 799; 18 CLR 31 at 36-38. It is said that some persons may not know the facts or may have forgotten them, but that is challenging the wisdom, fairness and justice of the law and not its competency. With the wisdom, fairness and justice of the law this court has nothing to do, and cannot express any opinion upon the matter.'
In Orient Steam Navigation Co Ltd v. Gleeson [1931] HCA 2; (1931) 44 CLR 254, the High Court was again concerned with provisions of the Immigration Act 1901 relating to prohibited immigrants. By s 3 of that Act, the master and crew of any vessel landing during a stay of the vessel in any port were exempted from the definition of a prohibited immigrant subject to three provisos. The third proviso stated:
Subsection (10) does not, as submitted by the applicant, vest in the Commissioner the power to rule upon the admissibility of material in judicial proceedings which function is ordinarily part of the exercise of judicial power. Rather, the subsection invests the Commissioner with the power to relieve the taxpayer from a disability imposed by the Act itself. The power is analogous to the power of the Commissioner to remit penalty tax which is imposed by the Act itself. The exercise of the power to remit is administrative and not judicial and involves no exercise of the judicial power of the Commonwealth: FCT v Trautwein [1936] HCA 48; (1936) 56 CLR 211 at 216. Likewise, the decision to grant or withhold consent under s 264A(10) is an exercise of executive and not judicial power of the Commonwealth."
Over and above the matters which have been referred to, it is established that s. 49 stands in a special position in relation to Chapter III of the Constitution: see Richards and Re Tracey, ex parte Ryan [1989] HCA 12; (1989) 166 C.L.R. 518, 574, 579, 581. In Richards, it was held by the High Court that powers which "theoretically - perhaps one might even say, scientifically - ... belong to the judicial sphere" (p. 167) are exercisable by the Houses of the Commonwealth Parliament under s. 49 of the Constitution. Earlier, at p. 165, the Court had said that the "very plain words of s. 49" were "incapable of a restricted meaning, unless that restricted meaning be imperatively demanded as something to be placed artificially upon them by the more general considerations which the Constitution supplies". That possibility was rejected at p. 166, where it was said that "the general structure of the Constitution, meaning by that the fact that it is an instrument creating a constitution of a kind commonly described as rigid in which an excess of power means invalidity does not provide a sufficient ground for placing upon the expressed words of s. 49 an artificial limitation". At p. 166-167, there follows a passage which includes the first quotation from Richards set out above; the Court said:
(1954) 90 CLR 353
(1991) 172 CLR 460
(1991) 172 CLR 501
(1953) 87 CLR 144
(1991) 172 CLR 84
(1970) 123 CLR 361
(1981) 147 CLR 617
(1987) 163 CLR 140
(1987) 163 CLR 656
(1992) 174 CLR 455
(1951) 83 CLR 1
(1982) 150 CLR 169
(1922) 31 CLR 1
(1926) 39 CLR 95
(1931) 44 CLR 254
(1975) 132 CLR 307
(1936) 56 CLR 211