Wynbyne v Marshall [1997] NTSC 120; 7 NTLR 97; 117 NTR 11; 99 A Crim R 1; 141 FLR 166

Wynbyne v Marshall [1997] NTSC 120; 7 NTLR 97; 117 NTR 11; 99 A Crim R 1; 141 FLR 166 - NTSC 1997 case summary — Zoe

[13]

In Wake v The Northern Territory of Australia and Ors [1996] NTSC 56; (1996) 5 NTLR 170, the Full Court at pp177-178 dealt with the power of the Legislative Assembly to make laws for the peace, order and good government of the Territory. It is a plenary power ( Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 at p10; Capital Duplicators Pty Ltd and Anor v Australian Capital Territory & Anor [1992] HCA 51; (1992) 177 CLR 248 at pp281-282 and R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 279). In the judgment of Martin CJ. and Mildren J. it was noted that there was no authority to support the suggestion that legislative power is subject to some other restraints by reference "to rights deeply rooted in our democratic system of government and the common law" ( Union Steamship Co of Australia Pty Ltd v King ). There has been no authority along those lines in the meantime. The power is subject to the Commonwealth Constitution, and the Act itself, for example, the requirement for the assent of the Administrator or the Governor-General ss6, 7 and 8. In this case it is an agreed fact that it was his Honour who assented to the legislation upon the basis of advice to him that it was a proposed law making provision only in respect of a matter specified in the Regulations under s35 of the Act. In so far as it is suggested that the legislation here in question affects any abrogation of fundamental rights, then as in Wake, the language is clear and unambiguous and thus such an abrogation is within the legislative competence of the Territory Parliament ( Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437). In Wake at p184 it was said that there was no valid reason for reading down the width of the authority contained in subr4(1) "by distinguishing between the words "in respect of" appearing therein and the words "with respect to" appearing in s51 of the Commonwealth Constitution". It was in that context that the majority said that what was required in considering heads of authority under subr4(1) is a "relevance to or connection with a subject matter assigned" or a "substantial connection" between the law and the relevant head of power.

[22]

Were constitutional dogma to require such a search to be pursued, the difficulty in choosing between competing elements might readily lead different minds, perhaps influenced by quite subjective considerations, to varying conclusions as to the dominant character of a law. But to accept as constitutionally permissible the fact that a law may bear several characters, each as valid as the other because each is reasonably capable of fairly describing the law as a whole, disposes of the need to rely upon what may prove to be quite subjective reasons for selecting one particular description only. With the disappearance of subjective criteria, the process of characterization then becomes less uncertain and more a matter of logic than of idiosyncratic assertion." It seems to me that this law is also in respect of "maintenance of law and order and the administration of justice". It is not correct to say that to be valid a law under this heading must be a law which falls within the phrase as a whole. A law which falls to be considered either as in respect of the "maintenance of law and order" or in respect of "the administration of justice" would be valid notwithstanding that it did not touch upon the other. There is no necessity to endeavour to identify with any degree of precision what law or laws may be said to be in respect of the maintenance of law and order. In my opinion the law in respect of maintenance of law and order is purposive. It is a head of power which is to be employed to fulfil a purpose. In such a case it is suggested in Leask by Brennan J. at p999 that: "... the existence of a connection may be determined more easily by comparing the purpose of the law and the purpose of the power"; Dawson J. at p1007 "... a court must ask whether it is a law for the specified purpose, and the court may have to inquire into whether the law goes further than is necessary to achieve that purpose. That is an exercise in proportionality". Toohey J. at p1012 indicated that he did not accept those views saying: "... the place of reasonable proportionality in the characterisation of a law is where there is a tension between two operative principles", adding at p1013 that: "If reasonable proportionality were to become a general touchstone of constitutional power, the Court would be drawn inexorably into areas of policy and of value judgments". McHugh J. at p1013 said that: "If there is a sufficient connection between a subject of federal power and the subject matter of a federal law, it matters not that the federal law is harsh, oppressive, or inappropriate or that it is disproportionate or ill adapted to obtain the legislative purpose." His Honour would not appear to have distinguished between purposive and non-purposive powers; similarly, Gummow J. does not appear to venture upon the ground of the test of validity to be applied in relation to what is described as a purposive power, there was no need to do so. Kirby J. at p1024 remarked that the proportionality test "has not enjoyed universal favour" but adds that "Distinctions have been drawn (repeated in this case) between the value of the concept in cases where the constitutional power is conferred in purposive terms, cases where the power is expressed as restricted by a limitation and other cases".

[44]

In my opinion the principal purpose of s78A(1) is to require courts, upon reaching a finding of guilt in respect of a certain defined types of property offences, to both proceed to conviction and as well to impose a minimum sentence of imprisonment of not less than 14 days to the exclusion of any other lesser sentencing order. In Wake (supra, at 182, 185-6) all members of the Court were of the view that a law which proscribes conduct and makes it criminal is a law in relation to or in respect of the maintenance of law and order. It was submitted on behalf of the appellant that the expression "Maintenance of law and order and the administration of justice" is a composite phrase and that therefore the proposed law must have a relevance or substantial connection to both of the composite elements of the phrase. That submission is not open in the light of the reasoning in Wake . Moreover I do not consider that the word "and" should be given the construction contended for by the appellant. Sub-regulation 4(3) of the Northern Territory (Self-Government) Regulations provides that "subject to sub-regulations (2) and (4), the inclusion of any matter in sub-regulation (1) (whether with another matter or a separate matter) does not derogate from or affect the generality of any other matter specified in that sub-regulation". I accept the submission of Mr Jackson Q.C. that the words in parenthesis indicate that matters may be grouped together without derogating from or affecting the generality of any other matter specified in the group. There is also a further difficulty with the appellant's argument. As Mr Jackson Q.C. submitted, if a similar approach were to be adopted with other heads of power such as "flora and fauna" and "estates and trusts," it would be necessary, for a law to be validly given assent, for the law to be for or in relation to both flora and fauna, or both estates and trusts. Such an approach would seem extremely unlikely. In any event, Mr Jackson Q.C. submitted that a law imposing a mandatory minimum penalty fell within both heads, whether they are to be read as separate heads or not. Plainly the power to impose sanctions or penalties for breaches of the criminal law is a necessary incident to the power to proscribe conduct. Without penalties or sanctions, the criminal law would be ineffective. The same could be said about the power to make laws for the administration of justice. Indeed in Deaton v The Attorney-General and the Revenue Commissioners [1963] IR 170 the Supreme Court of Ireland said, at p183:

[63]

"It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it make lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded: nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute. Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose a specific punishment. If Parliament chooses to deny the court such a discretion, and to impose such a duty, as I have mentioned the court must obey the statute in this respect assuming its validity in other respects. It is not, in my opinion, a breach of the Constitution not to confide any discretion to the court as to the penalty to be imposed. Also it is within the competence for the Parliament to determine and provide in the statute a contingency on the occurrence of which the court shall come under a duty to impose a particular penalty or punishment. The event or the happening on which a duty arises or for that matter a discretion becomes available to a court in relation to the imposition of penalties or punishments may be objective and necessary to have occurred in fact or it may be the formation of an opinion by the court or, in my opinion, by some specified or identifiable person not being a court. The circumstance that on this happening or contingency, the court is given or is denied as the case may be any discretion as to the penalty or punishment to be exacted or imposed will not mean, in my opinion, that judicial power has been invalidly invaded or that judicial power is attempted to be made exercisable by some person other than a court within the Constitution." See also McTiernan J at 62-63, Menzies J at 64-65, Owen J at 67 and Walsh J at 68.

[71]

"The more serious question is whether a court can be said to be other than independent because a provision of the law imposes a mandatory sentence. Obviously the provision of the mandatory sentence excludes all discretion in the court. This, it may be noted, was the position for hundreds of years under the law of England in the days of capital punishment, when for murder the only sentence which might be pronounced was a sentence of death. For our part we find it difficult to believe that the courts were any less independent on this account. Statutes in many countries make provision not only for mandatory sentences but for maximum and for minimum sentences. It may be said that the latter two categories leave the court some discretion but it cannot be denied that they restrict it. The fact, however, is that it is of the nature of the legislative process constantly to vary the content of the law to be applied by the courts. This means that with every exercise of the legislative power there comes into existence a new legal framework to which the court must give effect. Thus a court which is free to act on the principles of common law and equity may find that a new defence or a new cause of action is introduced by a statute. It cannot, in our judgment, seriously be described as trenching upon the independence of the court to say that it is required to give effect to the alteration in the law. The courts exist to enforce the law in the form which it takes from time to time. They are, in our judgment, independent within the meaning of s10(1) if in the exercise of that function they are subject neither to control nor pressure by any outside body. The requirement of s10(1) is, in our opinion, fully met if, as in the case in Solomon Islands, they are subject to no direction by the legislature or the executive government as to the disposition of a particular case and of no form of pressure from outside bodies in the performance of their judicial functions. They are, however, like the courts in all civilised countries subject to the same body of law as is every other citizen. The courts are not intended by s10(1) to be independent of the law but independent within it." In Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 70 ALJR 814, the High Court of Australia was divided as to whether or not an Act which required the Supreme Court of New South Wales to impose preventative detention on a single individual was an invalid interference with the judicial power. Dawson J held, at 831, that "it is not apparent that an order that the appellant be detained represents the exercise of executive or legislative power rather than of judicial power". Toohey J said, at 837, that:

[77]

"The Act is an extraordinary piece of legislation. The making thereunder of "detention orders" by the Supreme Court in the exercise of what the statute purports to classify as an augmentation of its ordinary jurisdiction, to the public mind, and in particular to those to be tried before the Supreme Court for offences against one or other or both of the State and federal criminal law, is calculated to have a deleterious effect. This is that the political and policy decisions to which the Act seeks to give effect, involving the incarceration of a citizen by court order but not as punishment for a finding of criminal conduct, have been ratified by the reputation and authority of the Australian judiciary. The judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature. Thereby a perception is created which trenches upon the appearance of institutional impartiality to which I have referred." There is nothing in any of these statements which suggests that merely because a court, having found the appellant guilty of an offence, is mandated to record a conviction and impose a minimum sentence of imprisonment, that is an interference with the independence of the judiciary. The amending Act is not ad hominem but applies equally to all adults found guilty of certain defined property offences. Nor does the amending Act direct the Court to reach a finding of guilt. Guilt is proved in the usual way - by admissible evidence led by the prosecution. Only when guilt is thus established is a court required to convict. As to that, whilst the legislation has restricted the operation of a statutory power which did not exist at common law, which enables courts in the Territory to dismiss a charge in appropriate cases, notwithstanding that the accused is guilty, this is not an interference with the independence of the judiciary. There is no transference of judicial power to any executive body such as had occurred in Deaton v The Attorney-General and the Revenue Commissioners , (supra) in Liyanage v The Queen (supra), or R v Ali (supra). Nor are courts merely the instruments or arms of the executive to implement a legislative plan to imprison people who have committed no crimes. In my opinion, leaving aside a slender line of Canadian authority which is premised upon entrenched constitutional provisions in that country and which have no relevance to the situation in this country, the authorities to which I have referred support only one conclusion, viz., that the amending Act does not interfere with the independence of the judiciary.

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Judgment (81 paragraphs)

Wynbyne v Marshall [1997] NTSC 120; 7 NTLR 97; 117 NTR 11; 99 A Crim R 1; 141 FLR 166 (26 September 1997)

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Legislation Cited (6)

Cases Cited (12)