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[1998] HCA 9
High Court of Australia
1998-02-02
Brennan CJ, Hayne JJ
Original judgment source is linked above.
The applicant contends that Div 3 of Pt 1AB of the Crimes Act 1914 Cth (the Act) is invalid. Part 1AB was introduced by the Crimes Amendment (Controlled Operations) Act 1996 Cth (the Amending Act), following the decision of this Court in Ridgeway v The Queen [57] . In Ridgeway the Court held that evidence of the illegal importation of heroin by law enforcement officers should have been excluded on the grounds of public policy, with the consequence that the prosecution was unable to prove a necessary element of the offence charged. The main provision under attack is s 15X. The key words of that section provide that in determining whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 Cth 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. Certain conditions must be fulfilled before the section can operate [58] ; it is not in issue that the conditions were met. 1. (1995) 184 CLR 19. 2. The law enforcement officer must be acting in the course of duty and a request for exemption from scrutiny of the narcotic goods by Customs must have been granted. See pars (a) and (b) of s 15X.
Division 3 deals only with controlled operations [59] that began before Pt 1AB commenced [60] . This is such a case. The division stands in contrast to Div 2 of Pt 1AB which is concerned with controlled operations that took place after the Part commenced. Section 15I, which is part of Div 2, provides in effect that a law enforcement officer who, in the course of duty, engages in conduct that would otherwise constitute a narcotic goods offence, is not liable for that offence if there is in existence a certificate which authorises the controlled operation.
Thus s 15I has no direct evidentiary effect. Rather, it obliges a court relevantly to treat the officer as someone who is not liable for any narcotic goods offence that the officer would otherwise have committed. The application of "the Ridgeway discretion" must be assessed accordingly. On the other hand s 15X does have a direct evidentiary effect. In determining whether evidence of a particular character should be admitted, a court must disregard the fact that an officer committed an offence. The application of the Ridgeway discretion must be assessed on that footing. The court remains free to have regard to any other relevant evidence. This is put beyond doubt by s 15G(2) which reads:
Subject to section 15X, this Part is not intended to limit a discretion that a court has:
(a) to exclude evidence in criminal proceedings; or
(b) to stay criminal proceedings in the interests of justice.
Thus, a court may exclude evidence obtained from a controlled operation falling within Div 3 on the basis of unfairness to the accused or because the prejudicial effect of the evidence outweighs its probative value. In particular, nothing in Pt 1AB affects s 138(1) of the Evidence Act 1995 Cth which reads: Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Of course, in the application of s 138 a court must proceed in accordance with s 15X.
The applicant was charged with offences under s 233B of the Customs Act. Relying upon Ridgeway, the County Court made an order permanently staying the proceedings against him. Thereafter the Amending Act came into effect. The respondent then sought to have the order vacated. The proceedings were adjourned and subsequently the matter was removed into this Court. It is common ground that if s 15X is invalid, the application to vacate the stay order cannot succeed.
The attack on the validity of s 15X was expressed in terms that the section "infringes or usurps the judicial power of the Commonwealth contrary to the doctrine of separation of powers mandated by Ch III of the Constitution ". Some refinement of that formulation is necessary in order to understand precisely what the attack involves. As I understand the applicant's argument, it begins with the proposition that Ch III separates the judicial power of the Commonwealth from legislative and executive powers and directs that judicial power may be exercised only by courts which are established, or are invested with federal jurisdiction, by the sections that comprise Ch III. There is no difficulty in accepting the applicant's argument thus far. It is the next step that the applicant seeks to take that calls for closer consideration. The proposition is that the legislature cannot direct a court exercising the judicial power of the Commonwealth as to the manner in which the power is exercised. If necessary, this is further refined to say, at least not in such a way as is inconsistent with the essential powers of a court or with the nature of judicial process.
The argument was expressed in two different ways. The first focused on the discretion which a judge has to exclude evidence in certain circumstances and contended that s 15X unduly interfered with that discretion. The second way the argument was put was that Div 3 of Pt 1AB necessarily relates to a small, identifiable group of persons and in that context it directs a judge to deal in a particular way with the evidence, a requirement that does not exist in other cases. At times the two submissions tended to merge.
The doctrine of separation of powers serves "both to protect "the role of the independent judiciary within the constitutional scheme of tripartite government" and to safeguard litigants' "right to have claims decided before judges who are free from potential domination by other branches of government" " [61] .
It is only if a law purports to operate in such a way as to require a court to act contrary to accepted notions of judicial power that a contravention of Ch III may be involved. The operation of s 15X falls far short of that situation. It postulates a particular evidentiary footing upon which a court may then proceed where the admissibility of evidence that narcotic goods were imported into Australia is at issue. Section 15X is an evidentiary provision. It does not determine whether a charge of an offence against the Customs Act will succeed or fail. In no sensible way can the section, or for that matter Div 3 generally, be described as a bill of attainder. A closer analogy is with a statutory provision removing a requirement for corroboration. Such a provision was upheld in Rodway v The Queen [72] as not falling within the presumption against the retrospective operation of a statute. 1. (1991) 172 CLR 501 at 689. 2. (1990) 169 CLR 515.
(a) the conduct of the [relevant law enforcement officer] 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; and
(b) the person would not otherwise have had the intent to commit that offence or an offence of that kind. (s 15I(2), (5))
No provision is made in Pt 1AB of the Act with respect to the admission or exclusion of evidence in cases involving controlled operations carried out after it came into force. Rather, it seems to be assumed that, by exempting law enforcement officers from criminal liability for offences committed in the course of those operations, their conduct is rendered lawful and, thus, the discretion identified in Ridgeway is not enlivened. Certainly, that assumption is consistent with s 15G(2) which provides that subject to s 15X, that that 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.
Section 15X applies only to controlled operations commenced before Pt 1AB came into force.
There is nothing in Pt 1AB conferring immunity from criminal liability for offences committed in controlled operations started before that Part came into force. Instead, s 15X provides, in the case of a controlled operation undertaken by a law enforcement officer in the course of duty and purportedly in accordance with previous arrangements [84] , that:
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. The question in this case is whether s 15X is valid. 1. Prior to the enactment of the Crimes Amendment (Controlled Operations) Act 1996 Cth, each controlled operation was conducted in accordance with a Ministerial Agreement made by the Minister for Industry, Technology and Commerce and the Special Minister of State on 3 June 1987. The Ministerial Agreement provided that a written request could be made to the Australian Customs Service: "where certain persons, goods, ships or aircraft, suspected or known to be carrying or having an involvement in drugs, are required by the Australian Federal Police or the National Crime Authority to be exempted from detailed customs scrutiny and control and in cases where there is to be substitution of imported goods." Where the request for exemption was granted, the controlled operation would be conducted in accordance with detailed Australian Federal Police Guidelines governing such operations. See Second Reading Speech to the Crimes Amendment (Controlled Operations) Bill 1995, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995 at p 6 .
The validity of s 15X was brought into issue in proceedings against the applicant, David Michael Nicholas, in the County Court, Melbourne. He was presented in that Court on an indictment charging four narcotic drug offences. Two of the charges were for offences under s 233B(1)(c) of the Customs Act (the federal offences) and the other two were for offences under State law. The offences were allegedly committed in September 1994 and involved drugs which were illegally imported into Australia by a law enforcement officer. Before Pt 1AB of the Act came into force, an order was made staying the prosecution of the federal offences. The order was made on the basis that, so far as the drugs in question were illegally imported by a law enforcement officer, the facts were not relevantly distinguishable from those in Ridgeway and, thus, evidence of their importation should be excluded. When Pt 1AB came into force, the prosecution applied to have the stay lifted. In the course of that application, a question arose as to the validity of s 15X and, to the extent that the proceedings raise that question, they were removed into this Court pursuant to s 40 of the Judiciary Act 1903 Cth.
The applicant contends that s 15X is invalid on the basis that it "usurps the judicial power of the Commonwealth". It is also said that s 15X infringes Ch III of the Constitution in that it impermissibly "directs the manner in which [a] Court is to consider an application for evidence to be excluded [and] also directs the outcome as [the] application must inevitably fail when the very basis for the application cannot be taken into account". Additionally, it is put that it infringes Ch III because it is selective rather than general in its operation. In this last regard, it is not in issue that, apart from the applicant, only five or six people whose identities are known to the relevant law enforcement authorities will be affected by s 15X. Finally, it is argued that s 15X does not apply where, as here, a stay has already been granted.
In order to understand the arguments advanced on behalf of the applicant, it is necessary to say something of Ch III of the Constitution. It is settled constitutional doctrine that the provisions of that Chapter, particularly s 71, operate so that the judicial power of the Commonwealth can only be exercised by the courts mentioned in that section, namely, this Court, federal courts created by the Parliament and courts invested with federal jurisdiction [85] , the latter relevantly consisting of State Courts invested with federal jurisdiction pursuant to ss 39 and 39A of the Judiciary Act [86] . It is also settled constitutional doctrine that they operate so that the Parliament cannot confer any power other than judicial power and powers ancillary to the exercise of judicial power on those courts [87] .
It is necessary now to consider s 15X. Given that s 15G(2) expressly provides that "[s]ubject to section 15X, [Pt 1AB] is not intended to limit a discretion to exclude evidence or to stay criminal proceedings", s 15X must be construed strictly in accordance with its terms. And when so construed, two matters emerge. The first is that it does not purport to negate the existence of the Ridgeway discretion. Rather, s 15X necessarily acknowledges its existence by directing that "[i]n determining 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 is to be disregarded".
The second matter which emerges when s 15X is construed according to its terms is that the only matter it excludes from consideration is the fact that a law enforcement officer committed an offence. It does not, for example, direct that the consequences of the unlawful conduct be disregarded: thus, it does not require a court to disregard resultant unfairness to an accused or to the trial process. Nor does it direct that the consequences of the admission of the evidence in question be disregarded: thus, it does not require a court to ignore the tendency of the evidence to bring the administration of justice into disrepute, if that be the case. Nor does it direct a court to disregard associated conduct, such as intentionally inducing the accused to commit an offence which he or she would not otherwise have the intention to commit. That is a matter which the Parliament clearly intended should deprive law enforcement officers of immunity from criminal liability in relation to controlled operations conducted after Pt 1AB came into force and it would be contrary to all canons of construction to treat s 15X as requiring it to be disregarded in cases involving controlled operations started before then.
Properly construed, s 15X does no more than exclude the bare fact of illegality on the part of law enforcement officers from consideration when determining whether the Ridgeway discretion should be exercised in favour of an accused person. So construed, it is clear that it does not prevent independent determination of the question whether that evidence should be excluded or, more to the point, independent determination of guilt or innocence. And so construed, it is also clear that it neither authorises nor requires a court to proceed in circumstances which bring or tend to bring the administration of justice into disrepute. And although it is perhaps not quite so clear, it does not offend against the requirements of equal justice.
As already indicated, s 15X does not negate the Ridgeway discretion. It leaves the discretion to be exercised in any case in which it is invoked and, in that respect, the applicant's situation is no different from that which obtained in Ridgeway. And the principle of equality before the law is not infringed simply because, in the exercise of a discretion of the kind identified in Ridgeway, evidence is or may be excluded in one case and not in another. Indeed, it is the very essence of a discretion of that kind that the result of its exercise may vary according to the circumstances of the case. And, in my view, the principle of equality before the law is not infringed simply because s 15X directs that the fact that a law enforcement officer engaged in unlawful conduct is to be disregarded in any case in which that section applies.
Cases which arise after Pt 1AB came into force involve a circumstance not present in Ridgeway. When Ridgeway was decided, it was necessarily to be taken that Parliament had set its face against the importation of narcotic drugs by law enforcement officers, even where importation was part of a controlled operation. Parliament has now made plain its view that drug offenders should not escape prosecution simply because law enforcement officers have broken the law by importing the drugs involved in the offences with which they are charged. That consideration might properly result in the Ridgeway discretion being exercised differently, even if the facts are not otherwise distinguishable from those of that case. However, it is a matter for the trial judge whether that consideration has that consequence in this case.
It is necessary to say something of the argument that s 15X is directed to a limited number of persons who are known to law enforcement authorities. That argument was developed by reference to the decision of the Privy Council in Liyanage v The Queen [100] , a case concerned with legislation which was "clearly aimed at particular known individuals" [101] and involved a "legislative plan ex post facto to secure the conviction of those individuals" [102] . It was held in that case that the legislation infringed the independence of the judiciary as mandated by the Constitution of Ceylon. In reaching its decision, the Privy Council emphasised that the legislation lacked generality but said that "not every enactment which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power." [103] I agree. If legislation which is specific rather than general is such that, nevertheless, it neither infringes the requirements of equal justice nor prevents the independent determination of the matter in issue, it is not, in my view, invalid. And as already indicated, s 15X does not offend in either respect.
The argument that s 15X is invalid fails. And in my view, the argument that s 15X does not apply in cases in which a stay has already been granted should be rejected for the reasons given by Hayne J. The matter should be remitted to the County Court to be determined in accordance with law.
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.
The first question should be answered, Yes. It is therefore unnecessary to answer the second question.
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.
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.
On 20 May 1996, the accused applied to Judge Crossley 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 [104] , 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.
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 Judge Crossley. 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 Judge Crossley 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 long title of the Act is "An Act to amend the Crimes Act 1914 [105] 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 (s 15G(1)(a)):
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.
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".
Division 2 of the new Pt 1AB operates in relation to controlled operations [106] 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 [107] 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" (s 15I(2), (5)).
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.
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
(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
[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. 1. (1978) 141 CLR 54. 2. (1970) 126 CLR 321 at 335.
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.) 1. Ridgeway (1995) 184 CLR 19 at 31-32. 2. (1995) 184 CLR 19 at 32.
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.) 1. Ridgeway (1995) 184 CLR 19 at 33. 2. Ridgeway (1995) 184 CLR 19 at 41-42.
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.
Judicial power and the constitutional doctrine of the separation of powers
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. 1. (1909) 8 CLR 330 at 357.
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. 1. (1983) 152 CLR 570 at 608.
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. 1. Chu Kheng Lim (1992) 176 CLR 1 at 27. 2. (1992) 176 CLR 1. 3. Chu Kheng Lim (1992) 176 CLR 1 at 35-36. 4. Chu Kheng Lim (1992) 176 CLR 1 at 37. 5. Chu Kheng Lim (1992) 176 CLR 1 at 36. Mason CJ, Toohey J and I did not dissent from the general principle outlined by Brennan, Deane and Dawson JJ, but found that s 54R could be read down so that it only prevented courts from releasing persons lawfully held in custody: see Chu Kheng Lim (1992) 176 CLR 1 at 13-14, 50-51, 69.
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.
The Act was expressed [146] 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 [147] :
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. 1. Second Reading Speech to the Crimes Amendment (Controlled Operations) Bill 1996, House of Representatives, Parliamentary Debates (Hansard), 20 June 1996, MC p 2510. 2. Ridgeway (1995) 184 CLR 19 at 44.
The explanatory memorandum to the 1996 Bill [148] 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.) 1. Crimes Amendment (Controlled Operations) Bill 1996.
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 [149] :
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. 1. Second Reading Speech to the Crimes Amendment (Controlled Operations) Bill 1996, House of Representatives, Parliamentary Debates (Hansard), 20 June 1996, MC p 2514.
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.
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.
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 [150] regarded that fact as crucial in holding 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.
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.
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 [151] 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 [152] , 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. 1. Williamson v Ah On (1926) 39 CLR 95 at 108, 126-127, 128; Orient Steam Navigation Co Ltd v Gleeson (1931) 44 CLR 254 at 259-260, 262-263, 264; Milicevic v Campbell (1975) 132 CLR 307 at 316. 2. (1926) 39 CLR 95 at 122.
The New South Wales Court of Appeal expressed similar sentiments in Chau v Director of Public Prosecutions [153] 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" [154] . His Honour said [155] 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".
to provide that evidence of importation of narcotic goods obtained through a controlled operation:
(i) started before the commencement of this Act; and
(ii) in which the Australian Federal Police and the Australian Customs Service acted in concert to allow the narcotic goods to pass through the Customs;
is not to be rejected because of the unlawful conduct of law enforcement officers who took an active part, or were otherwise involved, in the importation of the narcotic goods. 1. So far as presently relevant, s 233B provides: "(1) Any person who: (b) imports, or attempts to import, into Australia any prohibited imports to which this section applies ; or (c) without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act; shall be guilty of an offence. (1a) On the prosecution of a person for an offence against the last preceding subsection, being an offence to which paragraph (c) of that subsection applies, it is not necessary for the prosecution to prove that the person knew that the goods in his possession or of which he attempted to obtain possession had been imported into Australia in contravention of this Act, but it is a defence if the person proves that he did not know that the goods in his possession or of which he attempted to obtain possession had been imported into Australia in contravention of this Act. (1c) Any defence for which provision is made under either of the last 2 preceding subsections in relation to an offence does not limit any defence otherwise available to the person charged. (2) The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods. (3) A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235. (4) This section shall not prevent any person from being proceeded against for an offence against any other section of this Act, but he shall not be liable to be punished twice in respect of any one offence."
It would follow from s 15X that at the trial of the accused, in determining whether evidence that the heroin was imported into Australia in contravention of the Customs Act should be admitted, the County Court would be obliged to disregard the fact that law enforcement officers committed offences in importing the heroin.
Were it not for s 15X, s 80 of the Judiciary Act would operate to make applicable the common law principle propounded by the majority in Ridgeway v The Queen [162] . This is that the discretion (or perhaps, more accurately, the power) to exclude evidence on the ground of public policy extends to the exclusion of evidence of an offence, or an element of an offence, procured by unlawful conduct on the part of law enforcement officers.
However, s 80 applies only "[s]o far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect". Section 15X is expressed to apply "for the purposes of a prosecution for an offence against section 233B" of the Customs Act. These terms are apt to embrace a prosecution in a State court exercising federal jurisdiction invested, pursuant to s 77(iii) of the Constitution, by s 68 of the Judiciary Act. The consequence is that the common law principle explained in Ridgeway is displaced by s 15X of the Crimes Act in relation to certain prosecutions.
The accused contends that s 15X is invalid. It was to resolve that question that this Court, acting pursuant to s 40 of the Judiciary Act, removed into this Court the cause pending in the County Court.
The accused takes as his starting point the separation of judicial power from the legislative and executive powers of the Commonwealth established by Ch III of the Constitution. He referred to the statement by five members of the Court in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs [163] :
The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government. The next step in the argument reflects what was said by Latham CJ in British Medical Association v The Commonwealth [164] , which was approved in Queen Victoria Memorial Hospital v Thornton [165] and in R v Murphy [166] . Latham CJ said [167] : There is no provision in the Constitution which enables the Commonwealth Parliament to require State courts to exercise any form of non-judicial power. 1. (1996) 189 CLR 1 at 10-11. 2. (1949) 79 CLR 201. 3. (1953) 87 CLR 144 at 151-152. 4. (1985) 158 CLR 596 at 614-615. 5. British Medical Association (1949) 79 CLR 201 at 236.
Later, in R v Murphy [168] , six members of the Court observed:
According to the authorities, the power conferred by s 77(iii) is limited by the principle, which has been distilled from Ch III and the dispositions it makes with respect to the judicial power, that only judicial functions and functions incidental thereto may be invested in a State court. 1. (1985) 158 CLR 596 at 614.
Section 15G(2)(a) of the Crimes Act states that, subject to s 15X, Pt 1AB of the Crimes Act is not intended to limit a discretion that a court has to exclude evidence in criminal proceedings. The effect of the submissions for the accused is that, in its application to the prosecution of the accused in the County Court, s 15X imposes a constitutionally invalid stricture upon what otherwise, pursuant to s 80 of the Judiciary Act, would be that Court's common law power to exclude evidence. The accused contends that, were the trial of the accused to be conducted in conformity with s 15X, the result would be that the State court would go beyond the exercise of those judicial functions and functions incidental thereto which mark the limits of the judicial power of the Commonwealth. That power is vested by s 71 of the Constitution in this Court, such other federal courts as are created by the Parliament, and in such other courts as the Parliament invests with federal jurisdiction.
The constitutional question does not arise by reason of the nature of the subject matter for the exercise of the judicial power or the consequences of that exercise of power. An example of such a situation which would not involve the exercise of the judicial power would be the declaration of what thereafter ought to be the respective rights and liabilities of parties to a civil dispute [169] . The dispute does not turn upon the alteration or abrogation by statute of antecedent private substantive rights or status which are at stake in, or which provide the foundation for, particular pending civil litigation. Indeed, the validity of such a law has been upheld [170] . Nor, in contrast to the position in R v Humby; Ex parte Rooney [171] , does the accused complain of the termination by legislation of a civil status following an ineffective attempt to do so in the purported exercise of judicial power. In Humby, such a law relating to marriage was upheld.
The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example. In short, as Griffith CJ had earlier remarked, "convictions for offences and the imposition of penalties and punishments are matters appertaining exclusively to [the judicial] power" [174] . 1. (1977) 138 CLR 1. 2. Quinn (1977) 138 CLR 1 at 11. Barwick CJ (at 6), Gibbs J (at 6), Stephen J (at 7) and Mason J (at 7) agreed with the reasons given by Jacobs J. 3. Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 444. See also Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175; R v Davison (1954) 90 CLR 353 at 382-383; Polyukhovich v The CommonwealthWar Crimes Act Case (1991) 172 CLR 501 at 608-609, 685, 706; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 C0LR 245 at 258-259, 269.
Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. As Isaacs J put it, a law which, on its true construction, is merely evidentiary and operates only to regulate future curial procedure is not retrospective [190] . 1. (1990) 169 CLR 515 at 518. 2. Williamson v Ah On (1926) 39 CLR 95 at 106-107.
It is a stringent provision casting the initial burden of proof upon the defendants in certain cases, but as I read the section that is all. It still leaves it to the judicial tribunal to determine on recognised principles the issue of guilt or innocence upon any evidence that may be adduced. Indeed I am acting in the present instance upon the basis of that interpretation, by disregarding the provisions of the section altogether.
Similar enactments have been held valid in America as for instance by Marshall CJ, in the case of "The Thomas and Henry" v US [195] , and by Gray CJ, in Holmes v Hunt [196] , where a number of authorities are collected. See also Li Sing v United States [197] , citing with approval Holmes v Hunt [198] and applying the rule of competency to a very strongly worded section; and again Ah How v US [199] , see also Craies on Statutory Law [200] and Cooley's Constitutional Limitations [201] .
An argument was also made that s 48 of the Act is not a law relating to Customs, and is also a usurpation of the judicial power of the Commonwealth. Neither of these contentions can be sustained. The section makes provision for the enforcement of a Customs security, and in effect casts upon the party who purports to have given the security the burden of proving either that he has not executed it or that he has complied with its conditions or that the security has been released or satisfied. A law does not usurp judicial power because it regulates the method or burden of proving facts. And the mere statement of the purpose and operation of s 48 establishes it as a law relating to Customs. Isaacs J [204] said there was no substance in the objection that s 48 was invalid because it was an attempt by the legislature to exercise judicial power; the provision was "a mere evidentiary section and of a class well known in Customs Acts". 1. (1922) 31 CLR 1. 2. Melbourne Harbour Trust (1922) 31 CLR 1 at 12. 3. Melbourne Harbour Trust (1922) 31 CLR 1 at 17.
The legislature has now, in the newly inserted Pt 1AB of the Crimes Act, struck a different balance between these competing interests. Division 2 of Pt 1AB (ss 15H-15U) sets up for the future a new regime under which, in certain circumstances, law enforcement officers are rendered "not liable" [215] for offences committed for the purposes of a "controlled operation". This Court is here concerned with Div 3 (ss 15V-15X), which deals with controlled operations started before 8 July 1996.
With respect to the accused, s 15X will require the County Court to disregard facts which otherwise, at common law, would enliven a discretion to exclude evidence tendered to prove that importation of the heroin in question was by law enforcement officers who committed an offence in doing so. In other respects, s 15G(2) preserves the discretion of the court to exclude evidence.
The section in its operation, if not necessarily on its face, deals not with proof but with a discretion to exclude evidence of facts. It operates to facilitate the proof by the prosecution of its case by the admission of evidence that otherwise was liable to exclusion. The case for the accused is made that much more difficult than it would have been if s 15X had not been enacted. However, the section does not deem any ultimate fact to exist, or to have been proved. It leaves untouched the elements of the crimes for which the accused is to be tried. Nor does s 15X change the amount or degree of proof essential to convict him from that required when the alleged offences were committed.
It is not significant that s 15X will have an operation in respect of a numerically limited class of persons presented for trial. Both s 15I and s 15X operate in respect of prosecutions for offences against s 233B of the Customs Act and associated offences. Before the commencement of the 1996 Act on 8 July 1996 an ascertainable number of "controlled operations" had been started. However, given the scope of s 233B and the associated offence provisions, the identity of all those who were liable to prosecution under those provisions, and at whose trial the Ridgeway discretion otherwise would apply, might not be established for some time after 8 July 1996.
Section 15X is part of a legislative scheme designed to strike a balance between competing interests and to give effect with respect to these prosecutions to a perception of the public interest which differs from that expressed in the common law in Australia. That is a matter for the Parliament. The legislation is not designed to achieve any particular outcome upon the determination by judicial process of the criminal guilt of any particular individuals by reason of their identity or their conduct on particular occasions.
Further, this is not a case where the Executive purports to dispense with laws made by the legislature. The Parliament has left untouched s 233B and the laws creating "associated offences". What it has done is to change the application of s 80 of the Judiciary Act by, in a limited respect, providing a legislative, not a common law, prescription as to the exercise of the court's power to reject certain evidence.
In various areas of criminal law procedure, the legislature has required the courts to exercise a power in a particular way, upon satisfaction of conditions stipulated by the legislature. Mitchell v The Queen [216] provides a recent example with respect to sentencing.
The new legislation empowers the Crown to rely upon an act of importation which was illegal and remains so, and requires the court to disregard the illegality. To some, that may offend views as to what should be public policy in such matters. But views of public policy may differ, as the judgments in the divided Court in Ridgeway demonstrate. For the legislature to prefer one such view to another is not, of itself, to undermine, in a constitutionally impermissible manner, the integrity of the judicial process in the exercise of the judicial power of the Commonwealth.
Section 15X does not operate so to prescribe the manner of exercise of the judicial power upon trials of offences against s 233B of the Customs Act or associated offences as to deny the basic rights referred to by Jacobs J in Quinn [217] . The courts are left with the determination of the facts in the light of the law which created the offence, as a matter of form and substance.
I agree with the reasons for judgment of Hayne J with respect to the construction of Div 3 of Pt 1AB.
I agree also with the orders proposed by his Honour.
A cause pending in the County Court of Victoria between the Crown and Mr David Nicholas (the applicant) was removed into this Court [218] . The removal was ordered to permit the determination of the constitutional validity of s 15X in Div 3 of Pt 1AB of the Crimes Act 1914 Cth. That Part was inserted in the Crimes Act by the Crimes Amendment (Controlled Operations) Act 1996 Cth [219] . The purpose of the amendment was to respond to the decision of this Court in Ridgeway v The Queen [220] .
If permitted by the basic principles of their respective domestic legal systems, the parties shall take the necessary measures, within their possibilities, to allow for the appropriate use of controlled delivery at the international level, on the basis of agreements or arrangements mutually consented to, with a view to identifying persons involved in offences established in accordance with article 3, paragraph 1, and to take legal action against them. 1. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. 2. Queensland, Report of the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Fitzgerald Report) (1989), p 177. See House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996, MC pp 2513-2514. 3. Second Reading Speech of Attorney-General (Mr Williams), House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996, MC p 2514. 4. Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 Cth, Sch 1.
If it be desired that those responsible for the investigation of crime should be freed from the restraints of some provisions of the criminal law, a legislative regime should be introduced exempting them from those requirements. In the absence of such a legislative regime, the courts have no choice but to set their face firmly against grave criminality on the part of anyone, regardless of whether he or she be government officer or ordinary citizen. To do otherwise would be to undermine the rule of law itself. 1. Ridgeway v The Queen (1995) 184 CLR 19 at 44.
A Bill was promptly introduced into the Parliament to regulate "controlled deliveries". As introduced, it dealt not only with future operations. It also purported to deal with those of the past which were relevantly indistinguishable from that which in Ridgeway had given rise to the order permanently staying the proceedings in that case.
The Act incorporates into the Crimes Act a new Pt 1AB (Controlled operations for obtaining evidence about certain offences relating to narcotic goods). The amendments appear in three Divisions. Division 1 (Objects of Part) contains one section, s 15G, expressing the objects of Pt 1AB. Division 2 (General) deals prospectively with authorisation procedures for law enforcement officers engaged in an authorised controlled operation. Division 3 (Controlled operations started before commencement of this Part) has retrospective consequences for a controlled operation "started before the commencement of this Part" (s 15V(1)). The Part commenced on the day on which the Act received the Royal Assent. Thus Div 3 by its terms applies to the importation relevant to the first two counts on which the applicant is charged. It is important to examine the entire Act in order to contrast the way in which the Parliament dealt with controlled operations occurring after the Act commenced and those which it describes as "started" before the Act was in force.
The stated purpose of the Act, as its long title shows, is "to exempt from criminal liability certain law enforcement officers who engage in unlawful conduct to obtain evidence of offences relating to narcotic goods, and for related purposes". The objects of Pt 1AB are stated in s 15G(1). Section 15G(1)(a) and (c) are set out in the reasons of Brennan CJ. The other stated object, in s 15G(1)(b), is to require the Commissioner of the Australian Federal Police and the Chairperson of the National Crime Authority to "report to the Minister on requests to authorise controlled operations" and the Minister to report thereon to Parliament (s 15G(1)(b)).
The second sub-section of s 15G provides expressly for the preservation of the power of courts relevant to the issues argued in this case:
(2) Subject to section 15X, this Part is not intended to limit a discretion that a court has:
(a) to exclude evidence in criminal proceedings; or
(b) to stay criminal proceedings in the interests of justice.
As will be seen, s 15X, which the applicant attacks, is the principal operative provision of Div 3.
Division 2 contains a definition of a "controlled operation". Both by its place in Div 2, and by its reference to s 15I, it appears that the definition is intended to have a prospective operation [243] .
The enactment of the bill now before the House will ensure that the actions of law enforcement officials engaged in a controlled operation will not incur criminal responsibility and, as a result, the trigger for the exclusion of evidence will not arise. 1. Second Reading Speech, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995, p 6. 2. Second Reading Speech, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995, p 6.
It is important to describe the effect of the bill upon prosecutions that are current at the time the bill commences operation. There are a number of investigations which are affected by the decision in Ridgeway. They all involve very significant participation in trafficking in narcotics; for example:
• conspiracy to import 7 kg of cocaine (one individual);
• being knowingly concerned in the importation of 3.8 kg of cocaine (two individuals);
• conspiracy to import 7 kg of cocaine (one individual); and
• being knowingly concerned in the importation of, and possession of, 2 kg of heroin (two individuals).
Controlled operations were employed in each of these matters. These operations were strictly regulated and rigorously controlled covert operations. They were not operations involving out of control cowboys riding roughshod over our laws. In each case they were conducted in purported accordance with the terms of a Ministerial Agreement relating to such operations and the detailed requirements of Australian Federal Police guidelines on the conduct of controlled operations.
The Minister recognised that, without the passage of the Bill "those trials will have to be abandoned" [251] . He suggested that the community would not see that as a just outcome. 1. Second Reading Speech, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995, p 6. 2. Second Reading Speech, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995, p 7.
It should be noted that the bill, whilst protecting the law enforcement officers from criminal responsibility, will still preserve the essential criminality or unlawfulness of the importation - or exportation - of the prohibited narcotics. This will ensure that the importation or exportation itself is not made lawful, thereby exonerating the targets of the operation who planned the conspiracy. He went on to describe a number of investigations affected by the decision in Ridgeway. Those mentioned by him were the same as those previously mentioned by Mr Kerr, except that one reference to an individual said to have been involved in "conspiracy to import 7 kg of cocaine" was deleted [259] . Only five individuals were identified as affected by Div 3. The Bill was duly enacted. 1. House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996, MC p 2512. 2. House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996, MC p 2510. 3. House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996, MC p 2514. 4. From the confusing format in the Hansard of the investigations listed by Mr Kerr (see House of Representatives, Parliamentary Debates (Hansard), 22 August 1995, p 6, quoted at pp 17-18 ), it is possible that this was a mistake in the speech given by Mr Kerr.
It was accepted for the Crown that the successful prosecution of the applicant on the first two counts of the presentment depended entirely on the validity of s 15X of the Act. If the section were invalid, there would be no basis for the application to Judge Crossley to vacate the stay. The applicant disclaimed any attack on Div 2 of the Act. It had no application to his case, being wholly prospective in operation. On the contrary, the applicant relied on the differentiation of the treatment of illegality on the part of law enforcement officers in Div 2 and Div 3 as an important step in his argument. It was conceded for the Crown that a different mode of drafting had been adopted in the two Divisions. Neither Division removed the illegality of the act of importation. However, in the case of Div 2, so long as the controlled operation was authorised in accordance with the Act, the Parliament declared that the law enforcement officers so engaged were "not liable for that offence" (s 15I). No attempt was made in Div 3 (assuming it to be possible) retrospectively to provide in a similar way for the removal of criminal liability in the law enforcement officers who had engaged in offences in the past. Instead, the legislative technique adopted by s 15X was to address the admission of evidence relevant to the public policy discretion explained in Bunning v Cross.
It was accepted for the applicant that members of this Court in Ridgeway had contemplated legislative repair of the defect in the law which that case had demonstrated [260] . Clearly enough the Parliament was endeavouring to respond to the Court's suggestions. The motivation of the Parliament or the fact that it might have gone about the legislation in Div 3 in a different way is irrelevant. The only duty of the Court is to measure Div 3, and specifically s 15X, against the requirements of the Constitution.
The applicant did not contest the jurisdiction of the County Court to lift the stay ordered in his favour. That stay, like the one ordered in Ridgeway itself, is described as a "permanent stay of proceedings" [261] but it was accepted that the Crown was entitled, in the changed circumstances brought about by the enactment of the Act, to apply for the lifting of the stay so long as the applicable provision of the Act was constitutionally valid. There is a dearth of authority on the power to vacate an order permanently staying criminal proceedings. In one of the preliminary rulings made in the Supreme Court of South Australia in the prosecution of Mr Polyukhovich, Cox J held that the power to lift a permanent stay existed [262] . It being conceded that no res judicata (or issue estoppel) was effected by the stay order the power of the Court to lift the order in the changed circumstances would seem clear enough [263] . In light of the applicant's concession, I am content to proceed on that basis. It would be otherwise if the procedural course favoured by Brennan J and Toohey J in Ridgeway had been followed in the applicant's case, namely the entry of an order of acquittal or a verdict of not guilty [264] . The Crown did not argue that the stay granted to the applicant was other than a valuable legal right secured by him by the application of the applicable law. It is a serious step to remove a permanent stay. This Court is not concerned with any discretionary considerations but only with the constitutional and construction points argued.
It was conceded that one indication of an invasion by the Parliament of the judicial power reserved to courts was the enactment of ad hominem legislation having application only to an identified person or persons [265] or to a limited number of persons readily identifiable [266] . Although the character of the Act here in question was in dispute, it was not contested that Div 3 was applicable to an extremely small number of cases. Only five were identified by the Attorney-General explaining the Bill to the House of Representatives. By inference, it is likely that only five cases are involved. That inference arises from the following facts: The controlled operations performed under the Ministerial Agreement were carefully monitored by Australian authorities. The passage of time since Ridgeway would suggest that if any more cases had been relevant, they would have been disclosed to the Parliament when the new Bill was introduced. A controlled operation is a major activity of law enforcement: reported to the Minister, formerly under the Ministerial Agreement and now under the Act. Had there been more cases to justify the retrospective operation of Div 3, it is inconceivable that they would not have been specified by the Attorney-General in support of the Bill. Accordingly, although the exact number is not proved, it seems extremely unlikely that there would be more than the five or six disclosed to the Parliament by the successive Ministers.
During argument, a question arose as to the meaning of s 15X. The question was whether, notwithstanding its terms, some part of the judicial discretion in Bunning v Cross was preserved to the court being made aware of the past involvement of law enforcement officers in contravention of the Customs Act s 233B. In terms, s 15X does no more than to require the court to disregard the fact that the law enforcement officers " committed an offence in importing the narcotic goods [etc]" (emphasis added). Did this mean that everything save the fact of the offence remained for consideration? Neither the Crown, nor the Attorney-General for the Commonwealth intervening, embraced this narrow construction of s 15X of the Act. The applicant was also doubtful about it. Rightly so, in my view. Amongst the stated objects of the Part, introduced by the Act, is the intention not to limit the discretion that a court has to exclude evidence in criminal proceedings or to stay such proceedings in the interests of justice (s 15G(2)). However, that object is stated in the Act to be "[s]ubject to section 15X". By inference, s 15X is intended to limit the Bunning v Cross discretion and the power to stay criminal proceedings in the interests of justice on the basis of its exercise. Given the history, language and obvious purposes of the Act, I do not consider that s 15X, if valid, could be interpreted to preserve any residual discretion based upon the fact that narcotic goods were illegally imported as distinct from the offence thereby committed. Such a construction would also contradict the materials placed before the Court relevant to the purposes of the Parliament in enacting the provision [267] .
In April 1995, several months before the events giving rise to the charges against the applicant, the Evidence Act 1995 Cth [268] came into operation. Section 138 of that Act contains a legislative attempt to re-express the substance of the discretion in Bunning v Cross. There are some apparent differences [269] . It was common ground that the section would not apply to the trial of the applicant. That trial is being conducted in a State court in Victoria within a jurisdiction vested in it under the Constitution (ss 71, 77) and pursuant to the Judiciary Act 1903 Cth (ss 39(2), 68). Accordingly, Victorian law as to evidence and procedure will be applied [270] . However, both parties sought to gain assistance from the passage of this provision of the Evidence Act. For the Crown, supported by the Commonwealth, s 138 indicated what has long been established, namely that Parliaments may enact laws of evidence of general application to govern the trial of matters in the courts, including with retroactive operation, without being regarded as impermissibly invading the courts' domain or the judicial power. On the other hand, the applicant pointed to the care that had been taken in the Evidence Act (ss 4, 8, 9; cf s 5) to exclude the operation of that Act even in a trial for a federal offence for which it might otherwise have been applied. Moreover, the Evidence Act had expressly preserved the powers of a court with respect to "abuse of process" [271] . By including a provision akin to Bunning v Cross, it was argued, the Parliament had acknowledged that any general provision in a law of evidence which purported completely to abolish or restrictively to control the power of courts to exclude evidence obtained unlawfully, would run into a constitutional problem.
In all other respects, it was accepted for the applicant that the conditions for the application of s 15X of the Act were fulfilled. For the Crown it was accepted that the exercise of the discretion described in Bunning v Cross was an exercise of the judicial power by courts, for public policy reasons. It was doubted that it would be competent for the Parliament to abolish that discretion entirely so far, at least, as the judicial power of the Commonwealth was concerned. But it was argued for the Crown, supported by the Commonwealth, that, as in the Evidence Act, it was competent for the Federal Parliament, in a law of general application, to affect the way in which, and the facts by reference to which, the discretion would be exercised by the courts. This, they submitted, was all that had been done by s 15X.
Finally, it was common ground that this Court was not concerned with the two State offences contained in the indictment. As in Ridgeway [272] , if the federal offences were to remain permanently stayed, it would be a matter for the prosecuting authorities to determine whether the State offences (being unaffected by the constitutional point) should be prosecuted or not.
The judicial power in a federal system: The separation and integrity of the judicial power, universally regarded as essential to the independence of the judicial function generally [282] , is specially important in a federal system of government. There the judiciary, especially in the courts constituted or invested with jurisdiction under the Constitution, must regularly determine disputed questions concerning constitutional power and large questions affecting the life of the nation as a whole. This is why the separation of the judicial power has been described as "a vital constitutional safeguard" [283] . In Harris v Caladine [284] , McHugh J pointed out tellingly that:
Those who framed the Constitution were aware of the need to insulate the federal judiciary from the pressures of the Executive Government of the Commonwealth and the Parliament of the Commonwealth so that litigants in federal courts could have their cases decided by judges who were free from potential domination by the legislative and executive branches of government.
It is the duty of this Court to maintain this postulate of the Constitution intact. One danger to it lies in the pretended conferral of judicial functions on tribunals and other bodies lacking the independence and constitutional protections of the courts [285] . Another lies in attempts by the legislature, pursuing policies recommending themselves to it, to enact what the Supreme Court of the United States has described as laws which have the effect of "nullifying prior, authoritative judicial action" [286] . I do not agree with the view of that Court that this factor is decisive, no matter how general the law in question [287] . Whether a law has the effect of nullifying prior authoritative judicial action is but one factor, albeit an important one, to be taken into account when determining invalidity.
Preventing the administration of justice falling into disrepute: The Parliament may enact laws of general application to govern the acceptance and rejection of evidence by courts, as indeed it has often done. But the mere fact that, for some purposes, the rule in Bunning v Cross might be classified as a law of evidence, and might even be modified by the Parliament for future and general application, cannot mean that it is susceptible to such a modification as would remove the power essential to courts to protect the integrity of their own processes. Various explanations have been given as to the ultimate conceptual foundation of the rule in Bunning v Cross. They include the protection of the individual accused from improper or unlawful treatment [301] ; the right of society to insist that those who enforce the law themselves respect it [302] ; and the discouragement of criminality on the part of law enforcement officers by depriving them of the fruits of their unlawful conduct and thus of the incentive to act in a way neglectful of the law [303] .
However, there is another and more fundamental reason which sustains the judicial discretion or power in question. It is a reason that is relevant to the nature of the judicial power itself. It charts the limits upon any legislative modification of that rule. I refer to the many judicial expressions explaining the rule in terms of the right and duty of the courts to protect the integrity of their own processes [304] and to prevent the administration of justice being brought into disrepute with consequent loss of public confidence [305] . In the United States of America, where the separation of the judicial power under the Constitution bears many similarities to the position in Australia, the obligation of courts to "set their face against enforcement of the law by lawless means" [306] is often expressed in constitutional terms. Those terms received endorsement from the opinion of Mason CJ, Deane and Dawson JJ in this Court in Ridgeway [307] . Their Honours there cited with approval the well known passage in the opinion of Roberts J in Sorrells v United States [308] , in turn endorsed by Frankfurter J in Sherman v United States [309] :
The doctrine [ie of entrapment] rests, rather, on a fundamental rule of public policy. The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. In Canada, the Supreme Court has expressed the same idea [310] : [T]he essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law.
In Ridgeway, Mason CJ, Deane and Dawson JJ considered that the reasoning in Sorrells and Sherman and other statements to similar effect [311] provided "persuasive support for the recognition in this country of a judicial discretion to exclude evidence of an illegally procured offence analogous to the Bunning v Cross discretion to exclude illegally procured evidence" [312] . This is the essence of the Ridgeway discretion. Its foundation is not, as such, fairness to the accused person. It is rather a principle of public policy bound up in the self-regard of the courts constituted or invested with the judicial power of the Commonwealth. By the terms of the Act in question here, the Parliament appears to have recognised (s 15G(2)) the limits on its entitlement to intrude upon, or to derogate from, this self-protective discretion reserved to the courts. However, that recognition appears in a provision which is stated to be subject to s 15X. That section is thus exceptional to the general scheme of the Act. The applicant says impermissibly so.
The high particularity of the challenged legislation
The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable (in view of the White Paper) and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals. It legalised their imprisonment while they were awaiting trial. It made admissible their statements inadmissibly obtained during that period. It altered the fundamental law of evidence so as to facilitate their conviction. And finally it altered ex post facto the punishment to be imposed on them [L]egislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments; and that it is fatal to their validity. The true nature and purpose of these enactments are revealed by their conjoint impact on the specific proceedings in respect of which they were designed, and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective, the punishment of those convicted. These alterations constituted a grave and deliberate incursion into the judicial sphere. Later, his Lordship went on [324] : If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. 1. [1967] 1 AC 259. 2. Liyanage [1967] 1 AC 259 at 287-288, 290-292. 3. Liyanage [1967] 1 AC 259 at 290. 4. Liyanage [1967] 1 AC 259 at 291-292.
The line between judicial power and executive power in particular is very blurred. Prescriptively separating the three powers has proved impossible The application of analytical tests and descriptions does not always determine the correct classification. Historical practice plays an important, sometimes decisive, part in determining whether the exercise of a particular power is legislative, executive or judicial in character. 1. (1992) 176 CLR 1 at 67.
The unrepaired affront of condoning unexcused criminality
Particularity is not all. There is a further ground. In my view it requires the provision of relief to the applicant.
As has been demonstrated, the Parliament approached the problem presented by Ridgeway in a different manner in relation to future controlled operations from those already "started". Whereas in the former the Parliament expressly provided that the law enforcement officer is "not liable for that offence" (s 15I(1)), being relevantly the offence of importing prohibited imports in contravention of s 233B of the Customs Act, no such exemption was enacted in relation to past illegal importations. On the contrary, the Act (s 15X) acknowledges that, in such a case, "a law enforcement officer committed an offence in importing the narcotic goods ". Allowing that the Parliament needed to preserve the illegality of the act of importation in order to render those allegedly involved, such as the applicant, guilty of the offences against s 233B, the fact remains that nothing has been done to meet the essential objection which this Court identified in Ridgeway. That is the objection to the spectacle of the courts being involved in apparently condoning by the judicial process seriously illegal conduct on the part of law enforcement officers. Although the stated objects of the Part include a general object to exempt from criminal liability law enforcement officers acting as provided under the Part (s 15G(1)(a)), the only operative provision to give effect to such exemption appears in Div 2 (s 15I(1)). There is none in Div 3. On this point, s 15X is completely silent.
The result is that the offence to public policy which was identified by this Court in Ridgeway remains wholly unrepaired. The conduct of the law enforcement officers remains seriously illegal. They are not, by law, exempted from liability. All that has happened is that the courts have been directed by the Parliament to disregard the illegality.
Such a direction might be given by the Parliament if all that was involved were a consideration of fairness to the particular accused. However, as the majority were at pains to stress in Ridgeway, that consideration is, if relevant at all, a minor one. The governing consideration is not the public policy in securing the fair trial of the applicant. It is the public interest "in the conviction and punishment of those guilty of crime" and the public interest "in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement" [328] .
This aspect of public policy, and the power and duty of the courts to defend it, belong, ultimately, to the judicial power. They can be enhanced, but not diminished, by the legislature or the executive. The central entitlement, and duty, of courts to ensure that the process of the law is not abused is recognised in common law countries even without the particular constitutional protections afforded to Australians by Ch III of the Australian Constitution [329] . Upholding the integrity of the judicial system is the unavoidable obligation of courts [330] . It cannot be surrendered to the other branches of government. They cannot be permitted to direct the courts to act in ways which would undermine the integrity of the judicial process and thereby run the risk of imperilling public confidence in the courts.
(1) Subject to subsection (2), a law enforcement officer (other than a member of the police force of a State) who, in the course of duty, for the purposes of a controlled operation, engages in conduct that, apart from this subsection, would constitute a narcotic goods offence is not liable for that offence if, at the time when he or she engages in that conduct, there is in force a certificate given under section 15M that authorises the controlled operation.
(a) the conduct of the officer 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; and
(b) the person would not otherwise have had the intent to commit that offence or an offence of that kind.
(3) Subject to subsection (5), a member of the police force of a State who, in the course of duty, for the purposes of a controlled operation, engages in conduct that, apart from this subsection, would constitute a narcotic goods offence is not liable for that offence if, at the time when he or she engages in that conduct, there is in force a certificate given under section 15M that authorises the controlled operation.
(6) 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.
Evidence of illegal importation etc of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officer
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
(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
Ridgeway was not a case concerning illegally procured evidence. Rather, one of the elements of the offence with which Ridgeway was charged was constituted by the illegal conduct of law enforcement officers: it was law enforcement officers who had imported the prohibited narcotic goods. Again, however, it is important to note that the Court did not hold in Ridgeway that evidence of the unlawful conduct of the law enforcement officers said to constitute one element of the charged offence could never be received; it was held that the trial judge had a discretion to exclude that evidence. As Mason CJ, Deane and Dawson JJ said [344] :
the considerations of "high public policy" which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. 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. As this passage makes plain, the exercise of the discretion calls, once more, for resolution of the tension between the competing principles that have earlier been mentioned. It may be, then, as their Honours suggest [345] , that the discretion to reject illegally procured evidence and the discretion to exclude evidence of an illegally procured offence are not distinct and independent but are complementary aspects of a single discretion encompassing both. I need not decide whether that is so. 1. Ridgeway (1995) 184 CLR 19 at 31-32. 2. Ridgeway (1995) 184 CLR 19 at 37-38, per Mason CJ, Deane and Dawson JJ.
Whether or not the discretion to exclude evidence of an illegally procured offence is separate from the discretion discussed in Bunning v Cross, it is a discretion the exercise of which is to be informed by similar considerations, although, as Ridgeway also makes plain, the relative weight to be given to those considerations will vary according to the circumstances of each particular case.
"Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence - the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement - will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances [346] . Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance." [347] 1. See, eg, Bunning v Cross (1978) 141 CLR 54 at 77-78; Pollard v The Queen (1992) 176 CLR 177 at 202-203. 2. Ridgeway (1995) 184 CLR 19 at 38, per Mason CJ, Deane and Dawson JJ.
It is against that background that the challenge to the validity of Div 3 of Pt 1AB must be judged.
First, that the nature and basis of the discretion to reject evidence of an offence or element of an offence procured by unlawful conduct on the part of law enforcement officers are of such a kind that it is only the courts that can determine in what circumstances the discretion is to be applied;
Secondly, that Div 3 of Pt 1AB deals only with a small and identifiable group of persons and is, on that account, an impermissible interference with the exercise of judicial power; and
Thirdly, that on its true construction, Div 3 of Pt 1AB does not apply to a case, such as the present matter, in which a stay has previously been ordered.
These strands were not always treated as separate threads in the argument but it is convenient to deal with them as if they were.
It was submitted that the discretion to reject evidence of illegally procured offences is a common law (as opposed to statutory) discretion which is exercised by the courts to protect the integrity of their processes. No doubt this is so. Equally there is no doubt that a court which exercises the discretion is exercising judicial power. Thus, when the trial judge ruled that the evidence which the prosecution proposed to lead of the importation of the heroin which it was alleged that Nicholas had, or had attempted to have, in his possession should be excluded, the trial judge was exercising the judicial power of the Commonwealth. But it by no means follows from these considerations that Parliament may make no law touching the discretion.
At the outset it is necessary to recall that the discretion is one which is rooted in public policy and requires the balancing of competing considerations. Part 1AB seeks to have the courts strike that balance differently in some kinds of cases, presumably because the Parliament considers that the public interest requires it. The effect of Nicholas' contentions is that only the courts may determine what the public interest requires. I do not accept that that is so.
The facts that the discretion is a creature of the common law and is concerned with the protection of the integrity of the courts' processes do not mean that the discretion cannot be affected by legislation. There are many rules which have been developed by the common law which have been changed or even abolished by legislation and yet it is not suggested that such legislation intrudes upon the separation of judicial and legislative powers. Nor do the facts that the discretion is designed to protect the integrity of the courts and that the discretion is "an incident of the judicial powers vested in the courts" [348] take the discretion altogether beyond the reach of the legislature. Whether other considerations would arise if Parliament attempted to abolish the discretion altogether is a question I need not, and do not, address. The legislation now in question does not abolish the discretion - it affects only some kinds of prosecutions and then only in the limited circumstances that are prescribed in the legislation.
(2) Subject to section 15X, this Part is not intended to limit a discretion that a court has:
(a) to exclude evidence in criminal proceedings; or
(b) to stay criminal proceedings in the interests of justice.
As counsel for Nicholas emphasised, s 15X may, on its true construction, require a court to disregard the very fact that enlivens the discretion spoken of in Ridgeway - that a law enforcement officer committed an offence in importing the narcotic goods. It may be, then, that s 15X is properly described as removing the discretion to exclude evidence of illegally procured offences in the cases to which it applies. At the least it very much limits the discretion in such cases. But on its widest construction, s 15X says no more than that in the limited circumstances in which that section has operation the discretion to reject evidence is not to be exercised. 1. cf MacMillan Bloedel Ltd v Simpson [1995] 4 SCR 725.
The distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence is, of course, concerned with substance, not form [10] , and will not always be easy to draw, but it is a distinction of great importance. As Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration [11] :
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 [12] and "could not be excluded from" [13] the judicial power of the Commonwealth [14] . 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. 1. Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27, per Brennan, Deane and Dawson JJ. 2. (1992) 176 CLR 1 at 27. 3. Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 444. 4. R v Davison (1954) 90 CLR 353 at 368, 383. 5. See also War Crimes Act Case (1991) 172 CLR 501 at 536-539, 608-610, 613-614, 632, 647, 649, 685, 705-707, 721.
Nothing in Pt 1AB purports to take any question of adjudging or punishing criminal guilt under a law of the Commonwealth away from the courts which exercise the judicial power of the Commonwealth. Even if s 15X is construed as entirely removing (in cases to which it applies) the discretion to exclude evidence of the illegal conduct of law enforcement officers who were concerned in the importation of narcotic goods, the issue of guilt or innocence of the crime charged in cases to which that section applies is left to the courts to decide.
I have said that the distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence will not always be easy to draw. It is possible to imagine changes to evidence or procedure which would be so radical and so pointed in their application to identified or identifiable cases then pending in the courts that they could be seen, in substance, to deal with ultimate issues of guilt or innocence. The legislation dealt with by the Privy Council in Liyanage v The Queen [15] might be seen to have been of that kind.
It was submitted that s 15X can be seen to be of the same kind as the legislation considered in Liyanage because of its application to a limited group of identifiable cases, because it deals with proof of an essential element of an offence charged and because its application in this case deprives Nicholas of the benefit of an order staying proceedings on the Customs Act offences permanently. I have dealt with the first of these three considerations. It is convenient to deal with the other two together.
Before Pt 1AB came into operation, the trial judge concluded, following Ridgeway, that because evidence of the illegal importation of the narcotic goods should not be received, the charges under the Customs Act that were alleged against Nicholas would fail and that therefore the further prosecution of those charges would be an abuse of process and should be permanently stayed.
There is, in my view, nothing in s 15X or Pt 1AB more generally, which suggests that s 15X applies only to cases in which no application for stay has been granted before the Part came into force. Nicholas' contention that the section was limited in this way should be rejected. Further, once it is accepted, as it was in this case, that the trial judge has power, in a proper case, to lift a permanent stay that has been granted, there is no reason to conclude that the change in the law worked by Pt 1AB is not a sufficient reason to consider lifting the stay. (Indeed the contrary was not contended.) Inevitably then, the application of Div 3 of Pt 1AB (and s 15X in particular) in the circumstances of this case may mean that evidence of an essential element of the alleged offences which was previously excluded may now be admitted. But that should not be permitted to obscure two very important facts: first, that the proof of the matter alleged against the accused must still be undertaken by the prosecution and judged by the court in the ordinary way and second, that the discretion to reject evidence of illegally procured conduct is a discretion that is not focused upon the need to ensure a fair trial for the accused. It is a discretion that is based on other, different, considerations.
The legislation does not intrude on the judicial power of the Commonwealth. Accordingly, I would declare s 15X of the Crimes Act to be a valid law of the Commonwealth and remit the cause to the County Court to be dealt with according to law.
Nicholas
The Queen
High Court of Australia Brennan CJ Toohey, Gaudron, McHugh, Gummow, Kirby and Hayne JJ Nicholas v The Queen (M60/1996) [1998] HCA 9
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. As the rights and liabilities prescribed by a court's judgment (including a liability to undergo punishment in accordance with a sentence imposed by a criminal court) declare or are founded on the antecedent rights and liabilities of the parties (including a right or liability to the exercise of a judicial discretion), the court must find the facts and apply the law which, at the relevant time [23] , prescribe those antecedent rights and liabilities. The finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things on which criminal liability for the offence charged depends. It is a function which, on the trial on indictment of a person charged with an offence against a law of the Commonwealth, is reposed in a jury [24] . In finding facts, the jury is restricted to the evidence laid before them supplemented by facts commonly known that need no proof. 1. (1983) 152 CLR 570 at 608; see also Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 10-11. 2. Attorney-General v Vernazza [1960] AC 965 at 977; Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 at 503-504, 579-580; R v Humby; Ex parte Rooney (1973) 129 CLR 231 at 250. 3. Section 80 of the Constitution.
(1995) 184 CLR 19
(1995) 129 ALR 41
(1992) 176 CLR 1
(1951) 83 CLR 1
(1993) 177 CLR 541
(1918) 25 CLR 434
(1954) 90 CLR 353
(1991) 172 CLR 501
(1909) 8 CLR 330
(1983) 152 CLR 570
(1996) 189 CLR 1
(1948) 75 CLR 495
(1973) 129 CLR 231
(1976) 136 CLR 248
(1989) 168 CLR 1
(1922) 31 CLR 1
(1926) 39 CLR 95
(1975) 132 CLR 307
(1983) 152 CLR 281
(1990) 169 CLR 515
(1992) 174 CLR 455
(1970) 126 CLR 321
(1978) 141 CLR 54
(1982) 151 CLR 1
(1992) 176 CLR 177
(1991) 172 CLR 84
(1998) 192 CLR 159
(1996) 189 CLR 51
(1921) 29 CLR 257
(1931) 46 CLR 73
(1955) 92 CLR 157
(1957) 95 CLR 529
(1989) 166 CLR 518
(1971) 125 CLR 591
(1998) 193 CLR 346
(1938) 59 CLR 556
(1956) 94 CLR 254
(1949) 79 CLR 201
(1953) 87 CLR 144
(1985) 158 CLR 596
(1970) 123 CLR 361
(1991) 173 CLR 167
(1995) 183 CLR 245
(1991) 172 CLR 460
(1993) 67 ALJR 550
(1987) 163 CLR 140
(1926) 38 CLR 153
(1944) 69 CLR 185
(1931) 44 CLR 254
(1995) 37 NSWLR 639
(1986) 161 CLR 88
(1977) 138 CLR 1
(1911) 14 CLR 387
(1912) 15 CLR 65
(1913) 18 CLR 30
(1985) 157 CLR 523
(1996) 187 CLR 579
(1982) 63 FLR 216
(1996) 184 CLR 333
(1987) 162 CLR 514
(1997) 187 CLR 384
(1988) 53 SASR 538
(1992) 174 CLR 509
(1993) 177 CLR 378
(1996) 184 CLR 501
(1994) 181 CLR 251