Implied Rights & CH III
• CH III which confers the Cth judicial power, can be seen as the source of individual rights
Legislative Usurpation of Judicial Power
• Some of the things that the Cth can do to influence proceedings;
o Can reverse a decision by changing the law in future. Rights & obligations
o Can effectively reverse decided litigation by changing rights retrospectively. It effectively negates the result by making it irrelevant, but hasn’t actually interfered with the judicial process.
o Concerning pending litigation – can change statutory rights at issue, & affect the outcome of the case, even if legislation is aimed specifically at the litigating parties.
• But it can’t direct a court how to decide a particular case. This would be usurpation.
Usurpation Liyanage v The Queen (Privy Council) [1967]
• Legislation attempted to circumscribe the judicial process on the trial of particular prisoners charged with particular offences on a particular occasion & to affect the way in which judicial discretion as to sentence was to be exercised so as to enhance the punishment of those prisoners.
• Held to be a breach of separation of powers because it was a legislative plan to ensure conviction of all accused.
• Concerned an attempted Coup.
BLF Case (1986)
• Applicants challenged validity of Federal legislation that cancelled their registration & prevented them from reregistering.
• Argued that the Act was an exercise of the judicial power of the Cth, or that it interfered with the judicial power.
• The act, which was held to be valid, would have abrogated the functions of the court in the pending proceedings.
• It is well established that the Parliament may legislate to alter the rights in issue in pending litigation without interfering with the judicial power.
• “it is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue” court
BLF NSW v Minister for Industrial Relations (1986)
• Held to be an usurpation, but valid nonetheless because there’s no separation of powers provided for in the NSW constitution.
Nicholas v R (1998)
• Legislation changed evidence laws in drug importation cases
• Defence argued that this was an usurpation of judicial power, by removing judicial discretion about admission of evidence.
• Majority rejected the argument because the court’s role is to apply the rules of the evidence that they are given by Parliament.
• No usurpation. Not the same as interfering with the process of determining guilt.
Powers to detain
• Detention interferes with the separation of powers because detention is punitive,
• Adjudgement & punishment of guilt under Cth law is exclusively a judicial power.
• Issue arises when detention’s not punitive
Lim v Minister for Immigration (1992)
• Concerned federal legislation that detained aliens in custody, while their status was being resolved, for the purpose of expulsion or deportation.
• Law challenged on basis that providing executive officer with power to detain without trial was inconsistent with separation of powers.
• Court upheld legislation on basis that it was incidental to the aliens power (s51(xix)) & didn’t infringe the separation of powers.
• Constitution’s concern is substance & not mere form [meaning that it’s irrelevant that a law for arbitrary detention is framed in such a way as to try & divorce it from punishment & criminal guilt]
• Exceptions [times when detention can occur without exercise of judicial power]
o Arrest & detention by police pending charge or release
o In cases of infectious disease or mental illness
o Following court martials [breaches of military discipline]
• Only valid because of ‘non-citizen’ qualification. It would have been plainly invalid if applied to Australian citizens because of separation of powers.
Stolen Generation Case (1997)
• Concerned an executive power to detain that applied only to Aboriginals.
• Only 3 judges held that the separation of powers applied to territory (Toohey, Gaudron, Gummow)
• They all held that nonetheless, this law didn’t infringe it.
• At the time, the detention was considered to be protective rather than punitive.
Retrospective criminal laws War Crimes Act Case
• Principal was that Parliament cannot require the courts to act in a manner contrary to the judicial function.
• Implication: Cth could not, eg, require the court to shy away from natural justice, the presumption of innocence etc.
• [natural justice = procedural fairness ie. the right to have arguments put to you & then the right to respond.]
• Cth can legislate with retrospective effect, & majority found this extends to enable the Parliament to criminalise conduct retrospectively.
Implied right of legal equality
• Majority have rejected a requirement of legal equality, & there is no general requirement that laws should have a uniform operation throughout the Cth.
• The only principle of equality that can be read into the const as a general principle that courts must apply the laws equally (which flows from ch3).
• Doesn’t mean that the laws themselves must treat people equally.
Leeth v Cth
• Concerned the Cth Prisoners Act that required Cth offenders to be sentenced under the sentencing laws of the relevant states & territories, with the effect of non-parole periods that varied greatly for the same crime.
• Majority held that a law of the Cth that did not operate uniformly throughout the Cth was not in breach of any constitutional requirement.
• Note: minority found implied right to legal equality. Found it would be an “abomination” if the Const prevented discrimination against the States, but provided no similar protection for the constituents of the states. Note that this was based on the premise that the Const doesn’t spell out the underlying principles on which it is based (essentially “the vibe” argument).
Stolen Generation Case (1997)
• Majority held that the Constitution doesn’t provide for an implied doctrine of legal equality.
• Rather scathing attack on the minority position in Leeth
• The limitation on discrimination against the states “is derived from different consideration entirely” and does not spring from any notion of equality.
• “where the constitution requires equality it does not leave it to implication. It makes provision for it by prohibiting discrimination, preference or lack of uniformity in specific instances” per Dawson J
Right to a fair trial Dietrich v The Queen (1992)
• proposition that the common law right to a fair trial emanates from the separation of judicial power under the constitution has not yet attracted the majority support of the HC.
• But Deane & Gaudron JJ recognised the right as stemming from separation of powers
• “the fundamental requirement that a trial be fair is entrenched in the Cth Const by Ch III’s implicit requirement that judicial power be exercised in accordance with the judicial process…” per Gaudron J
• concerned trial of person charged with Federal crime of importing heroi