Australian Constitutional Law and Theory - Chp 16 PDF

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Australian Constitutional Law and Theory Chapter 16 – The Judicial Process 1. Introduction W Harrison Moore, The Constitution of the Commonwealth of Australia 

The Legislature may declare generally who shall be a competent witness, what shall be admissible evidence, and how proof may be made. It may even declare that certain things shall be prima facie evidence of the matter in dispute, and thus affect the burden of proof – subject to the qualification that the matter proved must have a reasonable relation to the matter in issue and a real tendency to establish it. The inference must not be ‘purely arbitrary, unreasonable, unnatural or extraordinary.

2. Retrospectivity 

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The standard Australian example in this respect is R v Kidman (1915). The defendants were charged with conspiracy to defraud the Commonwealth by profiteering on supplies to the armed forces in World War I. the offence of ‘conspiracy to defraud the Commonwealth’ had been added to the Crimes Act 1914 (Cth) by amendment in 1915. The amendment was assented to on 7 May 1915 but required that it ‘be deemed to have been in force’ from October 1914. The High Court upheld these provisions. The issue arose again in Polyukhovich v Commonwealth (1991). Section 9(1) of the War Crimes Act 1945 (Cth), as inserted by the War Crimes Amendment Act 1988 (Cth), provided that an Australian citizen or resident was guilty of an indictable offence if her or she ‘committed war crimes’ in Europe between 1 September 1939 and May 1945. A 6:1 majority upheld the Act as law with respect to ‘external affairs’, but for those judges who considered the issue it was not a law with respect to defence’. When it came to the validity under Ch III of the Constitution, the six judges who upheld the Act as a law in respect to ‘external affairs’ split 4:2, holding that the Act was incompatible with Ch III. Bill of attainder - an item of legislation inflicting attainder without judicial process. Attainder - the forfeiture of land and civil rights suffered as a consequence of a sentence of death for treason or felony.

3. Fair Trial  In Polyyukovich v Commonwealth Deane J held that federal courts cannot be required to exercise power in a manner ‘inconsistent with the essential requirements of a court or with the nature of judicial power’.  In 1996 in response to Ridgeway the federal Parliament inserted a new Pt IAB into the Crimes Act 1914 (Cth). It applied to ‘controlled operations’ in which law enforcement officers engaged in otherwise illegal conduct to obtain evidence for prosecutions concerning narcotic goods under s 233B of the Crimes Act. The Part also had a retrospective operation, with s 15X providing that in defined circumstances: Crimes Act 1914 (Cth)

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Section 15X – 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 foods 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.

4. Equal Justice Leeth v Commonwealth (1992) 

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Pursuant to the co-operative arrangement envisaged by s 120 of the Consititution, Commonwealth prisoners are routinely housed in State Jails. Until 1989, this practice was regulated by the Commonwealth Prisoners Act 1967 (Cth). Section 4(1) of that Act required that, after a ‘federal offender’ was sentenced, the sentencing judge should follow the practices and criteria of the relevant State fixing a minimum non-parole period. The result was that, in any one prison, State and Commonwealth prisoners had a comparable parole expectations but that, as amongst Commonwealth prisoners incarcerated in different States, non0parole periods varied widely. Richard Leeth convicted under the Customs Act 1901 for importing cannabis in commercial quantities, complained that this inequality of treatment was unconstitutional. Held that the legislation was valid, for Brenna J, the crucial distinction was between a Commonwealth offender (that is, a person convicted of an offence against Commonwealth Law), and a Commonwealth prisoner (that is, an offender who has been sentenced to a term of imprisonment)....