Smith v The Queen

[55]

Every Colonial Legislature shall have, and be deemed at all Times to have had, full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all Times to have had, full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony. In that regard, it should be mentioned that I consider that s. 18(2) is, for the purposes both of the proviso to s. 5 of the Colonial Laws Validity Act and of s. 6 of the Australia Act 1986 Cth [37] , a law "respecting the powers or procedure" of the Victorian Parliament which prescribes the "manner and form" to be observed in the enactment of the bills to which it applies. The consequence of that is that neither of those statutes undermined the effectiveness of s. 18(2) to impose its special procedural requirements in relation to amendment of either its own provision or the provisions of s. 85(3) [38] . In the result, s. 18(2) was, at the time of the enactment of the Supreme Court Act in 1986, valid and effective to confer upon the provisions of Pt III of the 1975 Constitution, including s. 85(3), the special status of constitutionally entrenched or controlled provisions [39] . 1. 28 & 29 Vict. c. 63. 2. (1931) 44 C.L.R. 394; [1932] A.C. 526. 3. See, e.g., Attorney-General (N.S.W.) v Trethowan (1931), 44 C.L.R., at pp. 416-417, 429. 4. See ibid., at pp. 417-420, 423-424, 429-433; [1932] A.C., at pp. 539-541. 5. cf. Clayton v Heffron (1960), 105 C.L.R. 214, at p. 251. 6. Act No. 142 of 1985; see also the Australia Act 1986 Imp, s. 6. 7. See Attorney-General (N.S.W.) v Trethowan (1931), 44 C.L.R., at pp. 418, 432-433; [1932] A.C., at pp. 539-540; Victoria v The Commonwealth and Connor (1975), 134 C.L.R. 81, at pp. 163-164. 8. See, generally, McCawley v The King (1920), 28 C.L.R. 106, at pp. 123-124; [1920] A.C. 691, at p. 712; Attorney-General (N.S.W.) v Trethowan (1931), 44 C.L.R. 394.

[61]

It is arguable that the new s. 85(3) was directed to preserving the appellate jurisdiction of the Supreme Court only in so far as appeals from other courts or tribunals to that court are concerned. On that approach, the new s. 85(3) of the 1975 Constitution would have nothing to say to s. 14(3) of the Supreme Court Act's operation with respect to internal appeals from a single Judge of the Supreme Court to the Full Court. However, in the context of what was intended to be a "plain English" enactment [40] , that approach would seem to be an unduly narrow and technical one which is not supported by the ordinary meaning of the language used, by the distinction drawn, in both the original and the new s. 85(3), between "original" and "appellate" jurisdictions or by the distinction drawn, in the original s. 85(3), between powers and authorities belonging to or exercisable by "the Supreme Court of Victoria" and those belonging to or exercisable by "the Judges thereof". On balance, it appears to me that the express reference in s. 85(3) to "appellate" jurisdiction must be construed as encompassing the appellate jurisdiction of the Full Court in relation to appeals from a single Judge of the Supreme Court as well as appeals from other courts or tribunals. That being so, there is inconsistency between the words of s. 85(3) and any provision of the Supreme Court Act which would deprive the Full Court of jurisdiction which it possessed "immediately before the commencement of the Supreme Court Act 1986 " to entertain such appeals. It follows that such inconsistency exists between the terms of the new s. 85(3) of the 1975 Constitution and those of s. 14(3) of the Supreme Court Act at least to the extent that, immediately before the commencement of that Act, the Full Court possessed jurisdiction to entertain an appeal from the Supreme Court constituted by a single Judge in cases such as the present. To the extent that such inconsistency exists, it necessarily reflects inconsistency between two different provisions of the Supreme Court Act, namely, s. 14(3) and s. 132(e) (which substituted the new s. 85(3) in the 1975 Constitution).

[63]

As has been seen, s. 132(e)'s validity depends upon the fact that it was enacted in accordance with the then applicable special requirements of s. 18(2) of the 1975 Constitution. The new s. 85(3), which s. 132(e) inserted in that Constitution, was intended by the Parliament to enjoy the special status of an entrenched or controlled constitutional provision, that is to say, the status of a "special" provision in respect of which limitations are imposed upon the power of the Victorian Parliament "to express and carry out its purpose in the ordinary way" [41] . In that context, inconsistency between s. 132(e) and an ordinary provision of the Supreme Court Act cannot be resolved by a simple application of the ordinary rules of statutory construction for determining inconsistency between coordinate provisions of the same statute without regard to s. 132(e)'s status as a special constituent provision enacted in conformity with the special constitutional requirements of manner and form applicable to it by reason of its operation as such. Rather, the prima facie presumption must be that it was the legislative intent that any inconsistency between s. 132(e) and any ordinary provision of the same Act should be resolved in favour of s. 132(e). There is nothing in the content of s. 132(e), s. 14(3) or any other provision of the Supreme Court Act which rebuts that prima facie presumption in so far as any inconsistency between s. 132(e) and s. 14(3) is concerned. To the contrary, consideration of the overall content of that Act seems to me to confirm that it was the legislative intent that s. 132(e) would, by inserting s. 85(3) in the 1975 Constitution, ensure that the various provisions of the Supreme Court Act amending, reorganizing and consolidating the law relating to the Supreme Court did not abolish any appellate or original jurisdiction which either the Full Court or the court constituted by a Judge would otherwise possess. Moreover, the proceedings in the Victorian Parliament to which reference may be made pursuant to s. 35(b)(ii) of the Interpretation of Legislation Act 1984 Vic, support the inference of such a legislative intent at least in so far as the appellate jurisdiction of the Full Court is concerned [42] .

[69]

Shortly after s. 42 in that form became part of the Supreme Court Act 1958, the Full Court of the Supreme Court of Victoria, in Reg. v Kean and Mills [43] , held that s. 42, while undoubtedly giving a right of appeal to the Full Court "where none existed" before, did not give a right of appeal in cases where a right of appeal to the Full Court sitting as a Court of Criminal Appeal was "already given by Pt VI of the Crimes Act [1958 Vic] and that it should probably not be construed as granting a right of appeal in any case where a right of appeal is already given by some other statutory provision" [44] . In that case, the Full Court held that an accused person, who had applied for an order quashing a presentment, had no immediate right of appeal under s. 42 from a decision of a single Judge of the Supreme Court rejecting the application. The whole basis of the decision was, as the judgment makes plain, that the accused would, in due course if convicted, be entitled to argue that the presentment should have been quashed on an appeal from his conviction under Pt VI of the Crimes Act. Regardless of whether the reasoning and decision of the Full Court in Reg. v Kean and Mills limiting the scope of s. 42 of the Supreme Court Act 1958 in that way should be accepted, it is apparent that that reasoning had no application to an appeal by the Crown from a decision of a single Judge granting a permanent stay of criminal proceedings since no appeal from such a decision could ever have been brought either immediately or subsequently (i.e. after verdict) by the Crown under Pt VI or any other statutory provision. Indeed, the reasoning of the Full Court in Reg. v Kean and Mills with its emphasis upon the need to avoid "duplicating rights of appeal where rights already exist" [45] would arguably support, rather than deny, the existence of the jurisdiction of the Full Court in the present cases immediately before the commencement of the Supreme Court Act 1986. Certainly, that was clearly the view of the Full Court in the subsequent case of Boehm v Director of Public Prosecutions [46]

Smith v The Queen - [1994] HCA 60 - HCA 1988 case summary — Zoe

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Judgment (73 paragraphs)

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