Nicholas v The Queen

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ

NICHOLAS  APPELLANT

AND

THE QUEEN  RESPONDENT

Nicholas v The Queen (M60-1996) [1998] HCA 9
2 February 1998

ORDER

1. Declare that s 15X of the Crimes Act 1914 (Cth) is a valid law of the Commonwealth.

2. Remit the matter to the County Court of Victoria for further hearing according to law.

Representation:

J L Sher QC with S A Shirrefs for the appellant (instructed by Galbally & O'Bryan)

M S Weinberg QC with J G Morrish for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Intervener:

G Griffith QC with M K Moshinsky and G R Kennett intervening on behalf of the Attorney-General for the Commonwealth (instructed by Australian Government Solicitor)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Nicholas v The Queen

Constitutional law – Separation of judicial power of the Commonwealth – Legislative response to Ridgeway v The Queen – Whether Parliament usurping judicial power – Whether legislation impermissibly specific in application – Integrity of judicial process – Retrospective operation of statute.

Evidence – Importation of prohibited drugs – "Controlled delivery" by law enforcement officer – Rationale for Ridgeway discretion to exclude evidence – Public policy.

The Constitution, Ch III.

Crimes Act 1914 (Cth), s 15X.

Crimes Amendment (Controlled Operations) Act 1996 (Cth).

Customs Act 1901 (Cth), s 233B.

1. BRENNAN CJ. The accused, David Michael Nicholas, was charged on indictment in the County Court of Victoria on four counts to which he pleaded not guilty. The first two counts alleged the commission of offences against s 233B of the Customs Act 1901 (Cth); the last two counts alleged offences against s 73(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic). The prohibited imports to which the Commonwealth offences allegedly related were heroin of a traffickable quantity which had been imported into Australia by Australian and Thai law enforcement officers in contravention of s 233B of the Customs Act.

2. On 27 May 1996 Judge Crossley, in accordance with the judgment of this Court in Ridgeway v The Queen[1], granted an application on behalf of the accused that his trial on counts 1 and 2 be permanently stayed.  Subsequently the Parliament enacted the Crimes Amendment (Controlled Operations) Act 1996 (Cth) ("the Amending Act") which inserted Pt 1AB into the Crimes Act 1914 (Cth). That Act is intended to reverse the effect of this Court's decision in Ridgeway. On 5 August 1996 the prosecution applied to Judge Crossley to vacate the order permanently staying the trial of the accused on counts 1 and 2, basing the application solely upon the fact that the Amending Act had come into force since the making of the order of 27 May 1996. The cause pending in the County Court between the accused and the Crown was removed into this Court pursuant to s 40(1) of the Judiciary Act 1903 (Cth) in order to determine whether Div 3 of Pt 1AB of the Crimes Act (as inserted by the Amending Act) is a valid law.

   [1] (1995) 184 CLR 19.

   The Amending Act

3. Section 15G in Div 1 of Pt 1AB defines the objects of that Part.  Sub-section (1) of s 15G provides, inter alia:

   "    The objects of this Part are:

   (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; and

   (b)    ...

   (c)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."

4. Division 2 of Pt 1AB contains a series of provisions which exempt law enforcement officers and members of the police force of a State from criminal liability for a "narcotic goods offence" if the conduct that would otherwise constitute that offence is engaged in in the course of duty for the purposes of a "controlled operation" provided "there is in force a certificate given under section 15M that authorises the controlled operation": s 15I. A "controlled operation" is defined by s 15H as an operation which, inter alia, "is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence against section 233B of the Customs Act 1901".  Section 15M prescribes the criteria which govern the issuing of a certificate by an "authorising officer"[2].  Although sub-ss (1) and (3) of s 15I exempt law enforcement officers and State police officers from criminal liability for a narcotics offence in the circumstances to which those sub-sections respectively apply, s 15I(6) provides as follows:

   "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."

   The provisions of Div 2 of Pt 1AB can relate only to controlled operations that start after Pt 1AB commenced.

   [2]      s 15J defines authorising officer in these terms:

   "The Australian law enforcement officer who is in charge of a controlled operation may apply to:

   (a)  the Commissioner, a Deputy Commissioner or an Assistant Commissioner; or

   (b)a member of the National Crime Authority;

   for a certificate authorising the controlled operation."

5. Division 3 of Pt 1AB, which is the division relevant to the present case, applies only to controlled operations that started before the commencement of Pt 1AB:  s 15V(1).  That Division covers prosecutions which were pending and which would otherwise have been affected by the judgment in Ridgeway at the time when Pt 1AB came into force. Division 3 affects the exercise of a trial judge's discretion to exclude evidence in a prosecution for an offence against s 233B or an associated offence[3].  The relevant provision is s 15X which reads as follows:

   [3] An "associated offence" in relation to s 233B of the Customs Act is defined to mean:

   "(i)an offence under section 236 or 237 of that Act that relates to the offence; or

   (ii)an offence under section 7A or subsection 86(1) of this Act that relates to the offence".

   "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

   (b)   for the purposes of the operation:

   (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

   (ii)      the request for exemption was granted."

6. In the Explanatory Memorandum which accompanied the Bill for the Amending Act, the purpose of s 15X was stated to be "to alter the rule of evidence laid down in Ridgeway v R (1995) 129 ALR 41, where certain circumstances relating to the involvement of law enforcement officers in the importation of narcotic goods in the course of a controlled operation can be shown to have existed".

7. Counsel for the accused submits that s 15X is an invalid attempt by the Parliament to interfere with or derogate from the judicial power of the Commonwealth, to interfere with the judicial process and to direct a court as to the manner and outcome of the exercise of its jurisdiction.

   The operation and effect of s 15X

8. To appreciate the effect of s 15X, it is necessary to go back to the principle which emerges from the judgments of this Court in Ridgeway[4]. Ridgeway had been convicted in the Supreme Court of South Australia of having in his possession without reasonable excuse a traffickable quantity of heroin to which s 233B of the Customs Act applied and which had been imported into Australia in contravention of that Act.  He appealed against his conviction, contending that the trial judge ought to have stayed permanently the proceedings against him or ought to have excluded evidence of the importation on discretionary grounds.  The discretion was said[5] to arise because the heroin had been illegally imported under the auspices of, and with the active involvement of, the Australian Federal Police so that it could be supplied to Ridgeway.

   [4] (1995) 184 CLR 19.

   [5] (1995) 184 CLR 19 at 25.

9. Mason CJ, Deane and Dawson JJ noted[6] that:

   "The illegal importation of the heroin which members of the Australian Police Force organised and in which they were involved was the very conduct against which the legislative provision creating the offence of which the appellant was convicted was primarily directed."

   The factors warranting rejection of the evidence of importation on public policy grounds were found to be extremely strong.  Their Honours identified those factors as "grave and calculated police criminality; the creation of an actual element of the charged offence; selective prosecution; absence of any real indication of official disapproval or retribution; the achievement of the objective of the criminal conduct if evidence be admitted".  Toohey J and I each agreed[7] that evidence of the importation should have been excluded for substantially the same reasons as those advanced in the joint judgment.  Gaudron J held that the proceedings ought to have been stayed because public confidence in the courts is necessarily diminished where the illegal actions of law enforcement agents culminate in the prosecution of an offence resulting from their own criminal acts.  Such proceedings, her Honour held, were an abuse of process[8].  McHugh J dissented.  Mason CJ, Deane and Dawson JJ favoured an order permanently staying the proceedings on the ground that, once evidence of illegal importation was excluded, the proceedings would inevitably fail[9].  Gaudron J also favoured a stay to remedy the abuse of process.  Toohey J and I, holding that once the evidence was excluded, there was no evidence to support an element of the offence for which Ridgeway had been convicted, favoured an order substituting a verdict of acquittal for Ridgeway's conviction.

   [6] (1995) 184 CLR 19 at 42.

   [7] (1995) 184 CLR 19 at 64 and 53 respectively.

   [8] (1995) 184 CLR 19 at 77-78.

   [9] (1995) 184 CLR 19 at 43.

10. Division 2 of Pt 1AB exempts from criminal liability law enforcement officers and State police officers who take part in controlled operations that are authorised by an authorising officer. Consequently, evidence of their conduct in importing narcotic goods or otherwise taking part in authorised controlled operations is no longer to be excluded on the footing that such conduct is an intentional flouting of a law designed to suppress the supply of narcotic goods, committed in execution of a settled and deliberate official policy[10]. In cases to which Div 2 applies, at the trial of a person charged with an offence under s 233B of the Customs Act or an associated offence, conduct to which sub-ss (1) and (3) of s 15I apply can no longer weigh against admission of evidence of that conduct in proof of an element in the offence charged.

    [10]    See Ridgeway v The Queen (1995) 184 CLR 19 at 53.

11. But sub-ss (1) and (3) of s 15I do not apply to conduct in which law enforcement officers or State police officers engaged before Pt 1AB commenced.  The consequences of that conduct are left to s 15X.  That section relates to the exercise of the Ridgeway discretion in respect of the illegal importation of narcotic goods by law enforcement officers in a controlled operation that started before s 15X commenced. Where evidence of such conduct is tendered against an accused in proof of an element of an offence under s 233B of the Customs Act or an associated offence, evidence of that conduct will be rejected in accordance with Ridgeway unless s 15X applies.  Section 15X applies when the narcotic goods were imported in the course of duty for the purpose of a controlled operation certified[11] to have been engaged in pursuant to the consent of a Regional Director of Customs that the imported narcotic goods be exempted from detailed scrutiny by officers of the Australian Customs Service while those goods were subject to the control of Customs (hereafter an "authorised controlled operation").  In exercising a court's discretion to decide whether evidence of the importation of narcotic goods in an authorised controlled operation should be admitted or rejected, the court is directed to disregard the fact that a law enforcement officer committed an offence in importing those narcotic goods.  If that fact had been disregarded in Ridgeway, evidence of the illegal importation of the heroin of which Ridgeway was found to have been in possession would have been admitted, there being no other reason for rejecting evidence relevant to prove one of the elements of the offence.  In the present case, if s 15X is valid, if the heroin referred to in the indictment was imported in an authorised controlled operation and if there is no other reason for rejecting evidence of its illegal importation, that evidence would be admitted on a trial of the accused.

    [11]    s 15W.

12. The accused submits that s 15X is invalid.  The argument proceeds on three grounds.  First, the accused contends that s 15X invalidly purports to direct a court to exercise its discretionary power in a manner or to produce an outcome which is inconsistent with the essential character of a court or with the nature of judicial power.  Secondly, the accused argues that, as s 15X applies to identifiable cases and is directed specifically to the accused in those cases rather than to the public generally, s 15X purports to usurp judicial power.  Thirdly, the accused submits that an attempt to sterilise the Ridgeway discretion invalidly undermines the integrity of the court's processes and public confidence in the administration of justice.  Alternatively to these arguments, it is submitted that s 15X on its true construction does not apply to the accused whose trial had already been permanently stayed.  The section, it is said, applies only to future trials and does not purport to affect orders that have been made to stay a trial.  It is convenient to consider these arguments seriatim.

    1.Consistency with the essential character of a court or with the nature of judicial power

13. In Chu Kheng Lim v Minister for Immigration[12], Brennan, Deane and Dawson JJ pointed out that the grants of legislative power contained in s 51 of the Constitution do not "extend to the making of a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power".

    [12] (1992) 176 CLR 1 at 27.

14. The nature of judicial power and the essential character of the courts which are charged with its exercise can be ascertained in part from the Constitution, in part from the common law. The common law informs the institutions of government[13] - Parliament, the Executive and the Judicature - in which the legislative, executive and judicial powers of the Commonwealth are reposed respectively by ss 1, 61 and 71 of the Constitution.

    [13]    Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Cheatle v The Queen (1993) 177 CLR 541 at 552.

15. The judicial power of the Commonwealth is vested in a court when the Constitution or a law of the Commonwealth confers jurisdiction to exercise judicial power in specified matters. Having heard and determined a matter in which it has jurisdiction, the court exercises the judicial power of the Commonwealth by the making of its judgment or order. Subject to the Constitution, the Parliament can prescribe the jurisdiction to be conferred on a court but it cannot direct the court as to the judgment or order which it might make in exercise of a jurisdiction conferred upon it. So much appears from a passage in the joint judgment in Chu Kheng Lim[14] in which s 54R of the Migration Act 1958 (Cth) was held by Brennan, Deane and Dawson JJ to be invalid for the following reason, inter alia:

    "In terms, s 54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates."

    [14] (1992) 176 CLR 1 at 36-37.

16. One of the exclusively judicial functions of government is the adjudgment and punishment of criminal guilt as the joint judgment in Chu Kheng Lim pointed out[15]:

    "    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[16] and 'could not be excluded from'[17] the judicial power of the Commonwealth[18]. 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."

    The function of adjudication and punishment of criminal guilt under a law of the Commonwealth can be exercised only by those courts in which the necessary jurisdiction is vested pursuant to Ch III of the Constitution[19].  Those courts include, relevantly for present purposes, the County Court of Victoria[20].

    [15] (1992) 176 CLR 1 at 27.

    [16]    Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 444.

    [17]    R v Davison (1954) 90 CLR 353 at 368, 383.

    [18]    See, also, Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 536-539, 608-610, 613-614, 632, 647, 649, 685, 705-707, 721.

    [19]    Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27.

    [20]    Judiciary Act 1903 (Cth) s 68.

17. A court in which criminal jurisdiction under a law of the Commonwealth is vested pursuant to Ch III of the Constitution exercises the judicial power of the Commonwealth when it adjudges and punishes criminal guilt. Judicial power, though never exhaustively defined, was described in a familiar passage in the judgment of Griffith CJ in Huddart, Parker & Co Proprietary Ltd v Moorehead[21]:

    "[T]he words 'judicial power' as used in sec 71 of the Constitution mean 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."

    [21] (1909) 8 CLR 330 at 357.

18. As the exercise of judicial power results in the making of a "binding and authoritative" decision, that decision itself becomes the charter for the future of the rights and liabilities with which it deals and the lawful authority for the taking of action in accordance with its terms.  In the criminal jurisdiction, an adjudication of guilt and the imposition of sentence become the authority for, and the duty of, the Executive government to carry the sentence into execution.

19. To exercise judicial power, a court is bound to take the essential steps identified by Mason, Murphy, Brennan and Deane JJ in Fencott v Muller[22].  Referring to Huddart, Parker their Honours said:

    "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.

    [22] (1983) 152 CLR 570 at 608; see also Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 70 ALJR 743 at 747; 138 ALR 220 at 226.

    [23]    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.

    [24] Section 80 of the Constitution.

20. Some characteristics of a court flow from a consideration of this function, including the duty to act and to be seen to be acting impartially[25].  We are not concerned with these characteristics in the present case, except in so far as the duty to act impartially is inconsistent with the acceptance of instructions from the legislature to find or not to find a fact or otherwise to exercise judicial power in a particular way.  A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid[26].  However, a law which merely prescribes a court's practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion.  For the purposes of the accused's first submission, the function of a court to which s 15X relates is the finding of facts on which the adjudication and punishment of criminal guilt depend.

    [25]    R v Watson; Ex parte Armstrong (1976) 136 CLR 248.

    [26]    Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 36-37; and see Liyanage v The Queen [1967] 1 AC 259 at 290.

21. Section 15X does not impede or otherwise affect the finding of facts by a jury.  Indeed, it removes the barrier which Ridgeway placed against tendering to the jury evidence of an illegal importation of narcotic goods where such an importation had in fact occurred.  Far from being inconsistent with the nature of the judicial power to adjudicate and punish criminal guilt, s 15X facilitates the admission of evidence of material facts in aid of correct fact finding.

22. However, to identify the adjudication of criminal guilt as the relevant exercise of judicial power is not to deal with the effect of s 15X on which the accused relies to challenge its validity.  The accused's argument is not that the adjudication by the jury of criminal guilt is affected by s 15X but that s 15X governs the determination by the trial judge of the challenge to the admission of evidence of an illegal importation.  The argument assumes that the exercise of discretion to admit or reject evidence is itself an exercise of judicial power distinct from a step in the practice or procedure which governs the exercise of judicial power.

23. The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it.  The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise.  The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction[27] but subject to overriding legislative provision governing that practice or procedure.  The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription.  A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power.  E S Roscoe[28], observing that the common law had produced a law of evidence of such high technicality as "justly merited the wholesale condemnation of Bentham" credits Lord Denman with the initiation of the move for legislative reform.  The preamble to the Evidence Act 1843 (Imp)[29] shows the need which was perceived to warrant legislative intervention:

    "Whereas the Inquiry after Truth in Courts of Justice is often obstructed by Incapacities created by the present Law, and it is desirable that full Information as to the Facts in Issue, both in Criminal and in Civil Cases, should be laid before the Persons who are appointed to decide upon them"

    it was enacted that certain evidentiary rules be changed.  Even though judicial opinion was opposed to the enactment of the Criminal Evidence Act 1898 (Imp)[30], it would not have occurred to the Imperial Parliament that a legislative power to prescribe rules of evidence might be regarded as a usurpation of judicial power.

    [27]    See Grassby v The Queen (1989) 168 CLR 1 at 16.

    [28]    The Growth of English Law, (1911) at 151.

    [29]    6 & 7 Vict c 85.

    [30]    Stone and Wells, Evidence:  Its History and Policies, (1991) at 46-47.

24. In The Commonwealth v Melbourne Harbour Trust Commissioners[31], Knox CJ, Gavan Duffy and Starke JJ said:

    [31] (1922) 31 CLR 1 at 12.

    "A law does not usurp judicial power because it regulates the method or burden of proving facts."

    And in Williamson v Ah On[32], Higgins J said that "the evidence by which an offence may be proved is a matter of mere procedure".  He added:

    "    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."

    However, Isaacs J pointed out a difference between a rule of evidence and a provision which, though in the form of a rule of evidence, is in truth an impairment of the curial function of finding the facts and hence an usurpation of judicial power.  He said[33]:

    "It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly."

    If a court could be directed by the legislature to find that an accused, being found in possession of stolen goods, had stolen them, the legislature would have reduced the judicial function of fact finding to the merest formality.  The legislative instruction to find that the accused stole the goods might prove not to be the fact.  The legislature itself would have found the fact of stealing.  Isaacs J continued:

    "The first is a parliamentary arbitrary creation of a new offence of theft, leaving no room for judicial inquiry as to the ordinary offence; the second is only an evidentiary section, altering the burden of proof in the ordinary case of theft, and requiring certain pre-appointed evidence to fit the special circumstances in the interests of justice, because the accused best knows the facts, and leaving the Court with these provisions to examine the facts and determine the matter."

    The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which it relates.  Rich and Starke JJ held[34] that a grant of power to make laws for the peace, order and good government of a territory carried the power "to enact whatever laws of evidence it thinks expedient, and in particular justifies laws regulating the burden of proof, both in civil and criminal cases ... and it is not for the Courts of law to say whether the power has been exercised wisely or not".  The same view was taken by Gibbs and Mason JJ in Milicevic v Campbell[35] and by Gibbs CJ in Sorby v The Commonwealth[36].

    [32] (1926) 39 CLR 95 at 122.

    [33] (1926) 39 CLR 95 at 108.

    [34] (1926) 39 CLR 95 at 127.

    [35] (1975) 132 CLR 307 at 316-317, 318-319.

    [36] (1983) 152 CLR 281 at 298.

25. In Rodway v The Queen[37], the Court held that a provision which changed the law relating to the necessity for corroboration of the evidence of a victim of crime was a provision governing practice and procedure.  As a procedural law, it was to be applied on the trial of an offender for an offence committed prior to the legislative change.  This decision accords with the view expressed in Wigmore on Evidence[38]:

    "Rules of evidence are merely methods for ascertaining facts.  It must be supposed that a change of the law merely makes it more likely that the fact will be truly ascertained, either by admitting evidence whose former suppression - or by suppressing evidence whose former admission - helped to conceal the truth.  In either case no fact has been taken away from the party; it is merely that good evidence has been given the one or bad evidence been taken from the other."

    [37] (1990) 169 CLR 515 at 521.

    [38]    Tillers' review, (1983) par 7 at 474.

26. If s 15X had simply declared that evidence of an illegal importation should be admitted, denying any discretion in the trial judge to exclude the evidence, the provision would simply have enlarged the evidentiary material available to a jury to assist it to find the facts truly.  It would have been a mere procedural law assisting in the court's finding of material facts.  No exception could be taken to such a law consistently with the authorities cited above.  But s 15X leaves the trial judge with a discretion to reject evidence of importation of narcotic goods in an authorised controlled operation, requiring only that in exercising the discretion, the illegal conduct of law enforcement officers should be disregarded.  The existence of the judicial discretion does not alter the classification of the law as a law governing the admission of evidence and therefore a law governing procedure.  The procedure for determining the admission of evidence of illegal importation is affected, but the judicial function of fact finding is unchanged and the judicial power to be exercised in determining guilt remains unaffected.  The first ground of objection to the validity of s 15X fails.

    2.     Application of s 15X only to identifiable cases

27. At the time when Div 3 of Pt 1AB commenced to operate, there was a finite number of cases in which an authorised controlled operation for the illegal importing of narcotic goods had occurred.  The number of prosecutions which had been instituted in respect of such goods was necessarily limited and the identity of those against whom charges had been laid were known by the prosecuting authorities.  When the present proceedings were removed into this Court, counsel for the Crown stated that there were "half a dozen in New South Wales and Victoria".  It was possible that further charges would be laid for offences committed after Div 3 commenced in respect of narcotic goods illegally imported in an authorised controlled operation before Div 3 commenced.

28. Relying on the limited number of cases to which Div 3 might apply, the accused argues that s 15X targets a limited group of alleged offenders and, by removing the linch-pin on which the Ridgeway discretion to exclude evidence depends, attempts to secure their conviction.  This was said to attract the invalidating principle which the Privy Council expressed in Liyanage v The Queen[39].  In that case, legislation which had been enacted by the Parliament of Ceylon to deal with the trial of those who had been arrested after an attempted coup d'êtat was held to be invalid.  The Privy Council said[40]:

    "    Mr Gratiaen succinctly summarises his attack on the Acts in question as follows.  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 ... 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.

    In their Lordships' view that cogent summary fairly describes the effect of the Acts. As has been indicated already, legislation 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 principle to be derived from Liyanage applies only to legislation that can properly be seen to be directed ad hominem.  It was so held by Mason CJ, Dawson and McHugh JJ in Leeth v Commonwealth[41]:

    "[L]egislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly (see Liyanage v The Queen).  It is upon this principle that bills of attainder may offend against the separation of judicial power (see Polyukhovich v The Commonwealth).  But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function."

    The cases to which s 15X applies are not only those in which prosecutions were pending when it came into force but any prosecution which thereafter required proof of illegal importation in an authorised controlled operation started before Div 2 commenced. Section 15X is the key provision of Div 3 which complements Div 2 by ensuring that in no case where the relevant narcotic goods are imported in an authorised controlled operation should evidence of the importation be excluded by reason of the illegality of the conduct of the law enforcement officers who were involved in the importation. The provisions of Pt 1AB bear no resemblance to the provisions of the Acts which were held invalid in Liyanage.  In that case, the legislation was directed specifically to the conviction and punishment of the offenders who had been arrested and were to be tried for their part in the attempted coup d'êtat. In this case, Pt 1AB is directed to all cases of alleged offences against s 233B of the Customs Act and associated offences, whether committed before or after Pt 1AB commenced. The distinction between Div 2 and Div 3 is accounted for by the different ways chosen by the Parliament to achieve a reversal of the Ridgeway decision. In one way or the other, the Parliament ensured that the conduct of law enforcement officers in importing narcotic goods in an authorised controlled operation should not prevent the laying before the jury of evidence of the importation of the narcotic goods in respect of which other offenders were charged with an offence against s 233B of the Customs Act or an associated offence.

    [39] [1967] 1 AC 259.

    [40] [1967] 1 AC 259 at 290.

    [41] (1992) 174 CLR 455 at 469-470.

29. It is erroneous to suggest that Div 3 seeks to secure the conviction of those other offenders for the offences with which they were or will be charged. Division 3 is concerned with the effect of illegality on the part of law enforcement officers, not with the offences committed by others. Section 15G(2) leaves the court with its general power to exclude evidence of an importation in an authorised controlled operation if there should be reasons for rejecting the evidence other than the illegality of the conduct of the law enforcement officers. It remains for the court in each case in which an alleged offender is charged with an offence against s 233B or with an associated offence to determine whether the elements of the offence charged have been proved. In making its finding, the court will not be deprived of evidence of the importation of narcotic goods which have been imported in an authorised controlled operation merely because the law enforcement officers acting in the course of their duty were involved in the importation in circumstances covered by Div 2 or Div 3 (as the case may be).

30. The second ground of attack on the validity of s 15X also fails.

    3.Undermining the integrity of the court's processes and public confidence in the administration of justice

31. The accused submits that Ridgeway[42] does not merely prescribe a rule of evidence but is an assertion of judicial power to exclude evidence in order to protect the public interest and to preserve public confidence in the administration of justice.  To appreciate the nature of the Ridgeway discretion, it is necessary to trace briefly the development in Australian law of the public policy discretion to exclude evidence that is otherwise relevant and admissible.

    [42] (1995) 184 CLR 19.

32. In R v Ireland[43], photographs of the right hand of an accused person were taken by police officers without any power to do so, the police having told the accused that he had to have his hand photographed.  Barwick CJ observed[44] that "the trial judge would have had a discretion to reject [the photographs] because of the manner in which they had been obtained."  Speaking of evidence of facts or things procured by means that are unlawful at common law or by statute, he said[45]:

    "Whenever 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."

    In Bunning v Cross, Stephen and Aickin JJ said[46]:

    "What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.  ...  [T]he discretionary process called for by Ireland ... [is] concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration."

    Their Honours, emphasising that the police forces should not be free to disregard statutory safeguards for the individual, said[47]:

    "Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm.  This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty.  ...  [I]t may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law."  (Emphasis added.)

    [43] (1970) 126 CLR 321.

    [44] (1970) 126 CLR 321 at 334.

    [45] (1970) 126 CLR 321 at 335.

    [46] (1978) 141 CLR 54 at 74-75.

    [47] (1978) 141 CLR 54 at 77-78.

33. In Cleland v The Queen[48], Deane J stressed the balance which had to be struck in exercising the public policy discretion, adding "impropriety" to "unlawfulness" as a factor to be weighed.  Referring to the principle endorsed in Ireland and Bunning v Cross, his Honour said[49]:

    "The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it.  Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law."

    In Pollard v The Queen[50], Deane J returned to the problem, citing what Stephen and Aickin JJ had said in Bunning v Cross and proceeding:

    "As that passage makes plain, the principal considerations of 'high public policy' which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused.  In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice.  It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence.  In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct.  In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct.  In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process."  (Emphasis added.)

    [48] (1982) 151 CLR 1.

    [49] (1982) 151 CLR 1 at 20.

    [50] (1992) 176 CLR 177 at 202-203.

34. Ridgeway was an extension of the public policy discretion.  The unlawfulness in that case was not in the conduct of police who were engaged in the collection of evidence of a crime committed, but in the conduct of law enforcement officers of the Executive Government who themselves committed a crime in order to establish an element of a further offence which they anticipated would be committed by another party.  However, the underlying principle was that evidence needed for the conviction of the other party could be bought at "too high a price" and it was therefore necessary to balance the bringing of the other party to conviction and the "undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law"[51].  In Ridgeway[52], Mason CJ, Deane and Dawson JJ said:

    "The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes.  In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of 'high public policy'[53] relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty."

    [51]    Bunning v Cross (1978) 141 CLR 54 at 74.

    [52] (1995) 184 CLR 19 at 31.

    [53]    Bunning v Cross (1978) 141 CLR 54 at 74 per Stephen and Aickin JJ.

35. It is clear that, in exercising the Ridgeway discretion, the court is balancing two competing public interests: the public interest in bringing to conviction an offender who has committed a crime and the public interest in upholding the law when law enforcement officers, the agents of the Executive Government, have deliberately flouted the law laid down by the Parliament or the common law.  If the court were to disregard the illegal conduct of law enforcement officers and to admit evidence of that conduct, albeit the conduct was in flagrant and deliberate breach of the Parliament's statutory command, the unlawful conduct would itself have conferred a "curial advantage"[54] on the law enforcement officers and the reception of evidence of the illegal conduct would "demean the court as a tribunal whose concern is in upholding the law"[55].

    [54]    Pollard v The Queen (1992) 176 CLR 177 at 203 per Deane J.

    [55]    Bunning v Cross (1978) 141 CLR 54 at 78 per Stephen and Aickin JJ.

36. But it is a mistake to see the Ridgeway discretion as a device calculated to protect the reputation of the courts.  It simply reflects the court's duty to ensure that it does not exercise its discretionary powers to achieve an objective which flagrant and deliberate breaches of the law are designed to achieve, especially when the breaches are committed by agents of the Executive Government whose duty is to uphold the law.  By weighing the competing public interest factors, the court seeks to strike the right balance between them.  It is by a proper balancing of the interests served by the general criminal law - the law which governs the conduct of law enforcement officers as well as the general public - against the interests served by the law relating to the admission of evidence of guilt in a criminal prosecution that the integrity of the court's processes are preserved and the repute of the courts as the administrators of criminal justice is protected.

37. To suggest that the statutory will of the Parliament, expressed in s 15X, is to be held invalid because its application would impair the integrity of the court's processes or bring the administration of criminal justice into disrepute is, in my respectful opinion, to misconceive both the duty of a court and the factors which contribute to public confidence in the administration of criminal justice by the courts.  It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court's opinion as to the justice, propriety or utility of the law is immaterial.  Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests.  To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power.  It would elevate the court's opinion about its own repute to the level of a constitutional imperative.  It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice.

38. The fact that, s 15X apart, on the trial of an offender for an offence against s 233B of the Customs Act or for an associated offence, the courts would reject evidence of the illegal importation of the relevant narcotic goods by a law enforcement officer does not establish that s 15X is beyond the legislative power of the Parliament.  Once the Parliament has enacted s 15X, it is the duty of the courts to apply it.  In doing so, the courts defer to the legislative competence of the Parliament and affirm their own adherence to the rule of law.  In striking a balance between the factors relevant to the Ridgeway discretion, subject to the conditions prescribed by Div 3 of Pt 1AB, the Parliament expresses where the balance of public interest lies.  The declaration of the balance of public interest devolves on the court when the Parliament is silent, but once the Parliament has spoken, it is the voice of the Parliament that declares where the balance of the public interest lies.

39. No attack on the validity of s 15X succeeds.

    Does s 15X apply to the present case?

40. The accused submits that s 15X is clearly intended to operate in the future, without prejudice to a right which he acquired by the making of the permanent stay order.  Section 15X, so the argument runs, is not dealing with mere matters of procedure but is directed to the exercise of the public policy discretion which determines rights and obligations.  The argument mistakes the effect of a stay order and raises a false dichotomy between matters of procedure and the public policy discretion.

41. An order staying a criminal trial is not a judicial decree conferring an immunity from punishment for a criminal offence.  It is not the equivalent of a verdict and judgment of acquittal.  It confers no vested right.  A stay does not determine the matter charged in the indictment.  There is concededly power to lift a stay and, if the stay be lifted, the trial on the indictment can proceed.  Further, for reasons earlier stated, s 15X bears the character of a procedural law.  Like the statute considered in Rodway[56], s 15X is a "statute which prescribes the manner in which the trial of a past offence is to be conducted".  It applies to the proceeding between the Crown and the accused which, though stayed, is still pending.  Section 15X destroys the basis on which the permanent stay was ordered.  The stay is no longer appropriate.  The issues raised on the indictment between the Crown and the accused must now be determined, either by plea or by verdict.

    [56] (1990) 169 CLR 515 at 518.

42. Accordingly, the order staying the trial should be lifted and the matter remitted for trial to the County Court of Victoria.  As the question raised is one that affects the admissibility of evidence in a pending criminal proceeding, there should be no order for costs.

43. TOOHEY J.   The circumstances in which this matter was removed into the High Court and the operative legislative regime are detailed in the judgment of Hayne J.  I shall avoid unnecessary repetition.

44. 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.

    [57] (1995) 184 CLR 19.

    [58]    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.

45. 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.

    [59] A controlled operation is defined by s 15H as an operation that involves the participation of law enforcement officers; is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence against s 233B of the Customs Act or an associated offence; and may involve an officer engaging in conduct that would, apart from s 15I(1) or (3), constitute a narcotic goods offence.

    [60]    The Amending Act commenced on 8 July 1996.  Judgment in Ridgeway was delivered on 19 April 1995.

46. 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.

47. 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.

48. 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 Chapter 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.

49. 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.

50. 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].

    [61]    Commodity Futures Trading Commission v Schor 478 US 833 at 848 (1986), quoted in Harris v Caladine (1991) 172 CLR 84 at 135. See also Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 70 ALJR 743 at 747; 138 ALR 220 at 226.

51. It is apparent from the decision of the Supreme Court of the United States in Plaut v Spendthrift Farm Inc[62] that the limits of legislative encroachment on judicial power can give rise to considerable debate.  There the Court, by majority, held legislation unconstitutional to the extent that it required federal courts to re‑open final judgments entered before its enactment.  But underlying the debate is an acceptance of the proposition that the power to resolve conclusively and to dispose of litigation is a judicial power[63].  A similar debate has taken place in Canada from time to time.  Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island[64] is a recent example.  The underlying principle remains the same.

    [62] 131 L Ed 2d 328 (1995).

    [63]    Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27, 36‑37, 49‑50.

    [64]    Unreported judgment of Supreme Court of Canada, 18 September 1997.

52. Because of the form the argument took, it is convenient to say something first about the discretion (more accurately, the power) to exclude evidence sought to be adduced against an accused person[65].  Consideration can, in this respect, be confined to the exclusion of evidence on grounds of public policy[66].  The discretion to exclude evidence on those grounds is part of the settled law in this country[67].  The source of the discretion is not to be found in statute law[68]; it "is properly to be seen as an incident of the judicial powers vested in the courts in relation to criminal matters"[69].  In the same way, courts have developed over many years the concept of a discretion to exclude confessional statements where the reception of the evidence might result in unfairness to an accused.  In even broader terms the courts speak of a discretion to exclude evidence, the probative value of which is outweighed by the likely prejudice to an accused.  But these aspects of discretion are outside the scope of the present application[70].

    [65]    Courts are called upon to exercise a discretion in a variety of situations.  See generally Hawkins, The Uses of Discretion, (1992).  But in the evidentiary context the emphasis is upon the power to exclude evidence consequent upon the exercise of a discretion.

    [66]    See generally R v Swaffield; Pavic v The Queen [1998] HCA 1.

    [67]    Bunning v Cross (1978) 141 CLR 54 at 69; Ridgeway (1995) 184 CLR 19 at 30‑31.

    [68]    But see now Evidence Act 1995 (Cth), s 138(1); Evidence Act 1995 (NSW), s 138(1).

    [69]    Ridgeway (1995) 184 CLR 19 at 33.

    [70]    They are discussed in R v Swaffield; Pavic v The Queen [1998] HCA 1.

53. It is a considerable step to reason that legislation may not affect the way in which judicial power is exercised.  It is an even bigger step to contend that the legislature may not provide that evidence possessing a certain character must be treated in a certain way or that evidence of a particular character must be rejected or, for that matter, admitted.  It might be necessary, in a particular situation, to look closely at the consequences of rejecting or admitting the evidence.  Those consequences may, for instance, be so inimical to the idea of a fair trial that a question arises as to the power of the legislature, at any rate where the judicial power of the Commonwealth is involved.  In Polyukhovich v The Commonwealth (War Crimes Act Case), where the operation of a law retroactively was one of the issues, I said[71]:

    "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.

    [71] (1991) 172 CLR 501 at 689.

    [72] (1990) 169 CLR 515.

54. In its broadest form, the argument of the applicant would seem to invalidate any legislative provision that bore on the exercise of the judicial power of the Commonwealth.  And why would it not strike down even provisions designed to ensure due process?  Clearly the argument must be expressed much more narrowly.  What is at stake here is not the reputation of the courts.  It may be that the reputation of the courts will suffer if compelled to admit or to exclude certain evidence, but only if as a consequence the chances of an accused receiving a fair trial are seriously diminished.  Even then it is not the reputation of the courts which calls for protection; it is the judicial process itself.

55. Evidence has traditionally been a subject for legislative regulation.  The Evidence Act 1995 (Cth) is a recent illustration. To take an example closer to home, averment provisions have been upheld as within constitutional power[73].  In so far as areas of public policy are involved, the identification of matters which are contrary to public policy is not the sole prerogative of the courts.  The legislature may, by the proscription of conduct, spell out areas of public policy.

    [73]    Milicevic v Campbell (1975) 132 CLR 307. See generally Cross on Evidence, 5th Aust ed (1996) at 204‑205.

56. Faced with these hurdles in the way of the first limb of his argument, the applicant was, in a sense, driven to the second limb.

57. The second limb related to the relatively few persons upon whom it was said s 15X might operate, that is where a controlled operation had started before the commencement of Pt 1AB[74].  Just how many persons cannot be known.  Even though the existence of controlled operations may be ascertainable, identifying the persons affected by a controlled operation is another matter.  There is nothing in the relevant provisions which singles out an individual, as in Kable v Director of Public Prosecutions (NSW)[75], or which singles out a particular category of persons.  It is simply the fact that by applying to controlled operations commenced before Pt 1AB, s 15X necessarily operates only by reference to accused persons to whom those operations related.  In the same way, it might be said that the War Crimes Act 1945 (Cth) necessarily applied only to the conduct of a limited number of persons. But that did not lead to any declaration of invalidity[76].  The legislation held invalid in Liyanage v The Queen[77] went a great deal further by purporting to legislate ex post facto the detention of particular persons charged with particular offences on a particular occasion.

    [74]    s 15V(1).

    [75] (1996) 70 ALJR 814; 138 ALR 577.

    [76]    Polyukhovich v The Commonwealth (1991) 172 CLR 501.

    [77] [1967] 1 AC 259.

58. The applicant had a further submission which did not involve the validity of Div 3 of the Act. The submission was that the division had a prospective operation only and that, the County Court having ordered a stay of proceedings before the Amending Act took effect, s 15X could not apply to any trial of the applicant.

59. It is an established principle that, absent a clear statement of legislative intention, a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation.  Once it is understood that s 15X operates only to affect rights to be determined at trial, as in Rodway, the principle is not offended. In any event Div 3 contains a clear statement of its intention to operate in the future. There is nothing to support the argument that, a stay having been granted before the Amending Act came into operation, the stay cannot be lifted thereafter.

60. It follows that Div 3 of Pt 1AB is a valid law of the Commonwealth.  The matter should be remitted to the County Court to be dealt with according to law.

61. GAUDRON J.   In Ridgeway v The Queen this Court held, by majority, that there is a discretion "to exclude, on public policy grounds, all evidence of an offence or an element of an offence procured by unlawful conduct on the part of law enforcement officers."[78]  That case involved heroin imported into Australia in breach of the Customs Act 1901 (Cth) by law enforcement officers who sold it to Ridgeway as part of a plan to catch him "red-handed". The majority held that evidence of its importation should have been excluded in exercise of the discretion identified in that case[79].  And, in the result, Ridgeway's conviction for possession of illegally imported heroin was set aside and an order made staying his further prosecution[80].

    [78] (1995) 184 CLR 19 at 33 per Mason CJ, Deane and Dawson JJ. See also at 52-53 per Brennan J and 64-65 per Toohey J.

    [79]    Ridgeway v The Queen (1995) 184 CLR 19 at 43 per Mason CJ, Deane and Dawson JJ, 52-53 per Brennan J, 64 per Toohey J.

    [80]    Note that the stay did not extend to the prosecution of alternative offences under State law.  Note also that Brennan and Toohey JJ would have entered a verdict of not guilty.

62. Following the decision in Ridgeway, the Crimes Act 1914 (Cth) ("the Act") was amended by the insertion of Pt 1AB[81]. That Part deals with controlled operations in which law enforcement officers engage in what is or otherwise would be illegal conduct "for the purpose of obtaining evidence that [might] lead to the prosecution of a person for an offence against section 233B of the Customs Act 1901[82] or an associated offence"[83].

    [81]    The Crimes Amendment (Controlled Operations) Act 1996 (Cth).

    [82] Section 233B prescribes a range of offences relating to the importation and possession of narcotic goods.

    [83] Section 15H of the Act.

63. So far as concerns controlled operations carried out after Pt 1AB came into force, s 15I(1) relevantly provides that "a law enforcement officer ... 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 ... there is in force a certificate given under section 15M"[84].  However, that exemption does not apply if:

    "(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 Act1901 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."[85]

    [84]    Section 15M sets out the grounds upon which the authorising officer must be satisfied in order to issue a certificate authorising a controlled operation.

    [85]    Sections 15I(2) and (5).

64. 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.

65. 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[86], 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.

    [86]    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 6.

66. 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).

67. 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.

68. 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[87], the latter relevantly consisting of State Courts invested with federal jurisdiction pursuant to ss 39 and 39A of the Judiciary Act[88].  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[89].

    [87]    See In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 97-98 per Dixon J; R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 166; Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 538; [1957] AC 288 at 312-313; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580-581 per Deane J; Leeth v The Commonwealth (1992) 174 CLR 455 at 469 per Mason CJ, Dawson and McHugh JJ, 487 per Deane and Toohey JJ.

    [88]    As to the position of Territory Courts see Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 602 per McTiernan J, 606 per Menzies J, 613 per Owen J, 623 per Walsh J, 627 per Gibbs J. But cf Gould v Brown [1998] HCA 6 at 41-42 per Gaudron J.

    [89]    See In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Victorian Stevedoring and General Contracting Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 97-98 per Dixon J; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 586-587 per Dixon and Evatt JJ; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 538; [1957] AC 288 at 312-313; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 606-607 per Deane J, 703 per Gaudron J; Leeth v The Commonwealth (1992) 174 CLR 455 at 469 per Mason CJ, Dawson and McHugh JJ, 487 per Deane and Toohey JJ.  See also Harris v Caladine (1991) 172 CLR 84. As to the position of State courts, see British Medical Association v The Commonwealth (1949) 79 CLR 201 at 236 per Latham J; Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151-152; R v Murphy (1985) 158 CLR 596 at 613-614; Kable v DPP (NSW) (1996) 70 ALJR 814 at 830 per Dawson J, 846 per McHugh J, 858 per Gummow J; 138 ALR 577 at 599, 622, 638. As to the position of State courts invested with Territory jurisdiction, see Gould v Brown [1998] HCA 6 at 41 per Gaudron J.

69. The argument that s 15X "usurps" the judicial power of the Commonwealth is, in effect, an argument that Parliament has attempted to engage in an exercise of judicial power by itself deciding that evidence as to the illegal importation of the narcotic drugs the subject of the federal offences with which the applicant is charged must be admitted at his trial.  As will later appear, I do not think s 15X operates in that way.  For present purposes, however, it may be assumed that it does.  Even so, it does not follow, in my view, that Parliament has "usurped" judicial power.

70. The difficulties involved in defining "judicial power" are well known[90].  In general terms, however, it is that power which is brought to bear in making binding determinations as to guilt or innocence, in making binding determinations as to rights, liabilities, powers, duties or status put in issue in justiciable controversies, and, in making binding adjustments of rights and interests in accordance with legal standards[91].  It is a power which is exercised in accordance with the judicial process and, in that process, many specific and ancillary powers are also exercised.  One ancillary power which may be exercised in that process is the power to exclude evidence in the exercise of a discretion which permits that course.  Other ancillary powers which are or may be brought to bear include the power to grant an adjournment, to make procedural rulings and to rule on the admissibility of evidence.

    [90]    See, for example, R v Davison (1954) 90 CLR 353 at 366 per Dixon CJ and McTiernan J; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 394 per Windeyer J; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188-189; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 257 per Mason CJ, Brennan and Toohey JJ, 267 per Deane, Dawson, Gaudron and McHugh JJ.

    [91]    See Gould v Brown [1998] HCA 6 at 43-44 per Gaudron J and the references there cited.

71. The various ancillary powers which are or may be brought to bear in the exercise of judicial power are not, themselves, ultimate powers of the kind involved in the making of binding determinations as to guilt or innocence or as to existing rights, liabilities, powers, duties, or status, or, in making binding adjustments of rights and interests. And they are not properly identified as judicial power for the purposes of Ch III of the Constitution. Accordingly, the argument that, in enacting s 15X of the Act, the Parliament purported to exercise the judicial power of the Commonwealth must be rejected.

72. The argument that s 15X infringes Ch III of the Constitution because it directs the manner in which the Ridgeway discretion is to be exercised and because it is specific and not general in its operation is, in effect, an argument that s 15X transforms the power to determine guilt or innocence in any case in which that section applies with the result that that power is not then properly characterised as judicial power.  To understand that argument, it is necessary to say something as to the nature of judicial power.

73. Judicial power is not adequately defined solely in terms of the nature and subject-matter of determinations made in exercise of that power.  It must also be defined in terms that recognise it is a power exercised by courts and exercised by them in accordance with the judicial process[92].  Thus, as was said in Chu Kheng Lim v Minister for Immigration, the Parliament cannot make "a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power."[93]

    [92]    Harris v Caladine (1991) 172 CLR 84 at 150 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496 per Gaudron J; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 703-704 per Gaudron J.

    [93] (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ. See also Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 607, 613 per Deane J and 704 per Gaudron J; Leeth v The Commonwealth (1992) 174 CLR 455 at 469-470 per Mason CJ, Dawson and McHugh JJ.

74. In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law.  It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.

75. The argument that s 15X transforms the power to be exercised in determining guilt or innocence is based on two distinct premises.  The first is that s 15X prevents the independent determination of the matter in controversy.  The second is that it requires the court to proceed in circumstances which bring or tend to bring the administration of justice into disrepute.  Those premises must be examined.  And, in the view I take as to what is required for consistency with the nature of judicial power, it is also necessary to consider whether s 15X offends against the requirement of equality before the law.  The examination of those issues requires a consideration of the rationale which underpins the discretion identified in Ridgeway.  And it also requires an analysis of the precise operation of s 15X.

221. After Nicholas had been committed for trial, but before he was arraigned, this Court decided Ridgeway.  After Nicholas had been arraigned and had pleaded not guilty to all four counts, he applied to the trial judge to exclude evidence of the importation of the heroin the subject of the charges and to stay the prosecution of the two counts alleging offences against the Customs Act.  On 27 May 1996, the trial judge ordered that further proceedings on the two Customs Act offences should be stayed permanently[364].

     [364] Although we have no record of the form of the order, and its form is not recorded in the transcript of the judge's reasons, it is clear from those reasons that the judge intended to make, and did make, an order in the same form as the order that was made in Ridgeway.

222. On 8 July 1996, the Crimes Amendment (Controlled Operations) Act 1996 (Cth) came into operation. That Act introduced Pt 1AB into the Crimes Act 1914 (Cth), the object of that Part being (among other things) "to exempt from criminal liability law enforcement officers who, in the course of controlled operations" authorised under that Part of the Act "take an active part, or are otherwise involved, in the importation or exportation of narcotic goods"[365] and "to provide that evidence of importation of narcotic goods obtained through a controlled operation" that had been started before the commencement of the Act and 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 those goods[366]. Division 2 of Pt 1AB (ss 15H to 15U) makes provision for controlled operations that may take place after the coming into effect of the Act. Thus, provision is made for the making of an application for a certificate authorising a controlled operation[367], for the grounds on which a certificate authorising a controlled operation may be given[368], for notification to the Minister of applications for certificates[369] and for the tabling by the Minister before each House of the Parliament of reports about controlled operations[370].  Section 15I provides:

     [365] s 15G(1)(a).

     [366] s 15G(1)(c).

     [367] s 15J.

     [368] s 15M.

     [369] s 15R.

     [370] s 15T.

     "(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.

     (2)    Subsection (1) does not apply if:

     (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.

     ...".

223. Division 3 of Pt 1AB deals with controlled operations that were started before the commencement of the Part.  The central provision of the Division is s 15X which reads:

     "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

     (b)    for the purposes of the operation:

     (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

     (ii)  the request for exemption was granted."

224. After the 1996 amending Act came into operation, the prosecution applied to the trial judge who had ordered a permanent stay of further proceedings in relation to the two Customs Act offences alleged against Nicholas for an order lifting that stay. Counsel for Nicholas contended that Div 3 of Pt 1AB of the Crimes Act is invalid on the ground that it "infringes or usurps" the exercise of the judicial power of the Commonwealth.  The whole of the cause (and thus, so far as presently relevant, the application for an order lifting the stay) was then removed into this Court.

225. The trial judge had ordered that proceedings on the two Customs Act offences should be stayed permanently.  It was, however, accepted before us that it would be open to the judge, in a proper case, to lift that stay.  No doubt that concession proceeded from an acceptance of two propositions ‑ that an order staying further proceedings did not constitute any final determination of issues joined and that there was not, in the circumstances of this case, any abuse of process in applying for a lifting of the stay or if the stay were to be lifted[371].

     [371] cf Rogers v The Queen (1994) 181 CLR 251; see also Director of Public Prosecutions (Cth) v Polyukhovich unreported, Supreme Court of South Australia, 4 March 1993 per Cox J.

226. As is apparent from the chronology I have given, Pt 1AB was introduced into the Crimes Act in response to the Court's decision in Ridgeway.  The legislative debates make plain that that is so[372].

     [372] Second Reading Speech of the Attorney‑General:  House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996 at MC 2510, 2512, 2514.

227. The discretion of the trial judge to exclude prosecution evidence which has been obtained by unlawful conduct on the part of the police is well established[373].  It is equally well established that that discretion is distinct from the discretion of a trial judge to exclude admissible evidence when to admit it would be unfair to the accused.  The discretion to exclude illegally procured evidence is not primarily concerned with questions of fairness to the accused but rather with "society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired"[374].

     [373] Bunning v Cross (1978) 141 CLR 54.

     [374] Bunning v Cross (1978) 141 CLR 54 at 75 per Stephen and Aickin JJ.

228. The rule is not a rule of absolute exclusion; a discretion must be exercised.  And the exercise of that discretion must be informed by consideration of two competing requirements:  that those guilty of crime be detected and punished and that those whose task it is to enforce the law obey it.  Reference is made in Bunning v Cross, and elsewhere, to various considerations that might bear upon the resolution of that tension and thus upon the exercise of the discretion in individual cases.  In particular, reference is made in Bunning v Cross to the importance of identifying whether there was some "isolated and merely accidental non‑compliance with statutory safeguards"[375] as opposed to deliberate breach of the law on the part of those who are duty bound to uphold it.  Since Bunning v Cross there have been many cases in which that balancing exercise has been undertaken[376].

     [375] Bunning v Cross (1978) 141 CLR 54 at 78 per Stephen and Aickin JJ.

     [376] See, eg, in this Court Cleland v The Queen (1982) 151 CLR 1; Pollard v The Queen (1992) 176 CLR 177; Foster v The Queen (1993) 67 ALJR 550; 113 ALR 1.

229. 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[377]:

     "... 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[378], 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.

     [377] Ridgeway (1995) 184 CLR 19 at 31-32.

     [378] Ridgeway (1995) 184 CLR 19 at 37-38 per Mason CJ, Deane and Dawson JJ.

230. 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[379].  Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance."[380]

     [379] See, eg, Bunning v Cross (1978) 141 CLR 54 at 77-78; Pollard v The Queen (1992) 176 CLR 177 at 202-203.

     [380] Ridgeway (1995) 184 CLR 19 at 38 per Mason CJ, Deane and Dawson JJ.

231. It is against that background that the challenge to the validity of Div 3 of Pt 1AB must be judged.

     Nicholas' contentions had three strands -

     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.

232. 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.

233. 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.

234. 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"[381] 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.

     [381] Ridgeway (1995) 184 CLR 19 at 33 per Mason CJ, Deane and Dawson JJ.

235. Moreover, Pt 1AB is concerned with a rule about the reception or rejection of certain evidence.  That Parliament may make laws prescribing rules of evidence is clear and was not disputed.  Plainly, Parliament may make laws (as it has) on subjects as diverse as the circumstances in which hearsay may be received[382] or the circumstances in which confessional statements by accused persons may be admitted in evidence[383] and it may do so to the exclusion of the previous common law rules[384].

     [382] See, eg, Evidence Act 1995 (Cth), Pt 3.2.

     [383] Crimes Act, Pt 1C.

     [384] Crimes Act, s 23A(1). "Any law of the Commonwealth in force immediately before the commencement of this Part, and any rule of the common law, has no effect so far as it is inconsistent with this Part."  (emphasis added)

236. The common law rules that were developed in these areas were often, if not always, developed with questions such as reliability of evidence or fairness to the accused at the forefront of consideration and thus, at least to that extent, with questions of the integrity of the curial process and its results well in mind.  And yet such legislation does not infringe the separation of powers.

237. It may be accepted that the judicial power of the Commonwealth is an "elusive concept"[385] difficult, if not impossible, of comprehensive definition.  At its core it concerns what Griffith CJ described in Huddart, Parker & Co Pty Ltd v Moorehead[386] as "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".  As Kitto J pointed out in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd[387] the judicial power involves "as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation" and that decision will be based upon identifiable legal principles[388].  But that is far from saying that the legal principles to be applied are to be formulated only by those in whom judicial power is properly invested.  Indeed to state the proposition is to reveal its error.

     [385] Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 532 per Mason CJ.

     [386] (1909) 8 CLR 330 at 357.

     [387] (1970) 123 CLR 361 at 374.

     [388] War Crimes Act Case (1991) 172 CLR 501 at 532-533 per Mason CJ.

238. Once it is accepted that the legislature may make or change the rules of evidence it is clear that it may make or change the rules governing the discretionary exclusion of evidence.  In particular, it may make or change rules governing the factors which a court is to take into account in exercising that discretion.  In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusion on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the courts by their not being seen to condone law breaking) is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished.

239. It is said that if the courts do that, their reputation is harmed because they are seen to condone the breaking of the law by law enforcement officers.  But that is to ignore a fundamentally important consideration - that the courts would receive evidence which otherwise may have been rejected because that is the effect of the statutory injunction to disregard the fact that the law was broken by the law enforcement officers.  There would, in these circumstances, be no harm to the reputation or integrity of the judicial process if the courts were to follow the law and there would be no harm to the reputation of the courts if, applying the law, a court received the evidence in the course of trying the issues joined between prosecution and accused.  Moreover, it is always necessary to recall that not every breach of the law by those who should enforce it led to rejection of their evidence at common law; a discretion was exercised.  Harm to the courts has not been seen, in Australia or elsewhere, as the inevitable consequence of the reception of such evidence.

240. As was noted in Bunning v Cross[389] there was a marked contrast between the approach manifest in R v Ireland[390] (and in Bunning v Cross) and the approach that had, until then, been taken in the English and Canadian courts.  Since then, the general effect of English cases has been to favour the reception of evidence even though it has been illegally obtained[391].  (The question in England has also now been affected by legislation[392].)  In Canada the matter is controlled by s 24(2) of the Charter of Rights and Freedoms which provides, in effect, that if evidence is obtained in breach of the Charter, the evidence is excluded if it is established that, having regard to all of the circumstances "the admission of it in the proceedings would bring the administration of justice into disrepute"[393].  In the United States, the view that appears to have prevailed is not that a defence of entrapment is necessary to "preserve the institutional integrity of the system of federal criminal justice"[394] but that the relevant question is whether the accused would have committed the offence but for the actions of the law enforcement officers[395].  In none of these jurisdictions, then, has the reception of evidence obtained illegally been seen as presenting such a threat to the integrity of the judicial process, or the reputation of the courts, as to require its rejection in all cases.  Nor is there any reason to consider that the factors affecting the decision whether to admit evidence that one element of an offence charged against an accused which has been constituted by the illegal conduct of law enforcement officers are so different from those that bear on whether to receive evidence obtained illegally that a different conclusion should be reached.

     [389] (1978) 141 CLR 54 at 73 per Stephen and Aickin JJ.

     [390] (1970) 126 CLR 321.

     [391] R v Sang [1980] AC 402; R v Khan [1996] 3 WLR 162; [1996] 3 All ER 289.

     [392] Police and Criminal Evidence Act 1984 (UK), s 78.

     [393] This provision has given rise to much litigation in the Supreme Court.  See, eg, R v Collins [1987] 1 SCR 265; R v Wijesinha [1995] 3 SCR 422; R v Stillman (1997) 144 DLR (4th) 193.

     [394] United States v Russell 411 US 423 at 445 (1973) per Stewart J (dissenting).

     [395] Hampton v United States 425 US 484 at 488-489 (1976) per Rehnquist J, at 492 n 2 per Powell J. Both the majority and dissenting judgments in Jacobson v United States 503 US 540 (1992) appear to accept that the relevant question is whether government agents' conduct caused the accused to commit the offence.

241. No doubt the conduct of law enforcement officers who participated in controlled operations involving the importation of drugs into this country was a deliberate and serious breach of the law (a breach ordinarily attracting condign punishment) but the choice made by the legislature is that these facts are to be disregarded in deciding whether to receive evidence of their conduct.  That choice is, as I have said, the choice of the legislature, not the courts and is not a choice which leads to damage to the reputation of the courts.

242. It may be accepted that the discretion to reject evidence of illegally procured offences is a discretion stemming from "the inherent powers of the courts to protect the integrity of their own processes"[396].  But the fact that the discretion is based in the inherent powers of the courts does not take the discretion beyond the reach of legislative change.  Nor does the fact that the discretion is intended to protect the reputation of the courts.  The courts' opinion of what is necessary, or desirable, to preserve their reputation is not a sound test of constitutional validity.  As Brennan CJ points out in his reasons:  "To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power."[397]

     [396] Ridgeway (1995) 184 CLR 19 at 34 per Mason CJ, Deane and Dawson JJ.

     [397] [1998] HCA 9 at 37.

243. I need not, and do not, decide whether there are some inherent powers of the courts which cannot be abolished[398]. The legislation now in question does not purport to abolish any power of the court. Section 15G(2), which applies to both Div 2 and Div 3 of the Part, and thus applies both to controlled operations taking place after the Act came into effect and those that had taken place earlier, expressly denies any such general intention. It provides:

     "(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. 

     [398] cf MacMillan Bloedel Ltd v Simpson [1995] 4 SCR 725.

244. If the rejection of evidence of illegally procured offences had been held to be inevitably required in all cases because only in that way could the reputation of the courts be protected, the question whether Parliament might change or abolish that rule might (I do not say would) have arisen.  But that is not the case with this rule.  The courts have recognised that a difficult balancing exercise must be undertaken and that no single answer applies to all cases in which the question might arise.  In my view the fact that the discretion is based in the inherent powers of the courts does not mean that Pt 1AB, or Div 3 in particular, intrudes on the judicial power of the Commonwealth.

245. I turn then to the other two strands in the argument.

246. Section 15X applies to only a small group of cases:  those arising out of controlled operations started before the commencement of Pt 1AB[399] and in which a request was made and granted under the Ministerial Agreement for exemption of the goods from detailed scrutiny by customs officers[400].  No doubt the number of those controlled operations is known; it seems that there may have been very few such cases[401].

     [399] s 15V(1).

     [400] s 15X(b). A certificate may be given by the Minister that such a request was made and granted and in a prosecution for an offence against s 233B of the Customs Act or an associated offence, that certificate is, upon mere production, prima facie evidence of the facts stated in it:  s 15W.

     [401] In his Second Reading Speech the Attorney‑General gave three cases as examples:  House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996 at MC 2514.  See also the Second Reading Speech of the Minister for Justice when a similar Bill was introduced in 1995:  House of Representatives, Parliamentary Debates (Hansard), 22 August 1995 at 6.  That Bill lapsed when Parliament was dissolved.  The Minister for Justice then gave four cases as examples.

247. For present purposes, then, I am prepared to assume that not only are the controlled operations to which s 15X may apply known but also that all offenders who were concerned in crimes committed after those importations have been identified by police.  If the cases described in the second reading speeches were the only cases to which s 15X might apply, it would seem that there are no more than about five or six persons concerned.

248. It was said that Div 3 of Pt 1AB can therefore be seen as legislation directed to the disposition of particular identifiable prosecutions and is, for that reason, an infringement upon judicial power.

249. First, however, it is to be noted that the legislation deals only with the reception of evidence; it does not deal directly with issues of guilt or innocence of any offence charged against those in whose prosecutions the evidence may be led.  Secondly, the mere fact that it may be possible to identify all the persons in relation to whom s 15X applies does not mean that the legislation interferes with judicial power.  Where legislation deals only with events which have happened before the legislation comes into effect, it must always be possible, at least theoretically, to identify all cases to which the legislation may apply; the events have happened and can, in theory, be identified.  That has not hitherto been seen as sufficient reason to conclude that the legislation is invalid[402].  The number of cases affected may be a relevant consideration but I doubt that it is a sure guide to validity and I do not rest my decision only on whether the provisions which are now under consideration affect 5 or 6 persons rather than 1 or 2 (or 5 or 6 rather than 500 or 600).  For present purposes it is enough to say that because the legislation does not deal directly with ultimate issues of guilt or innocence but only with whether evidence of only one of several elements of an offence can be received and deals not with a single identified, or identifiable, prosecution but with several prosecutions (albeit prosecutions which I assume can be identified and are relatively few) it does not have the character of a bill of attainder or like impermissible interference in the judicial process.  Rather, it is legislation of a kind much more closely resembling the legislation concerning corroboration warnings considered in Rodway v The Queen[403] - legislation which was held to affect only the procedures to be followed in litigation, not the rights of the parties.

     [402] War Crimes Act Case (1991) 172 CLR 501 at 533-534 per Mason CJ, 649 per Dawson J, 689 per Toohey J, 721 per McHugh J; cf 631 per Deane J, 704-705 per Gaudron J.

     [403] (1990) 169 CLR 515.

250. 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[404], 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[405]:

     "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[406] and 'could not be excluded from'[407] the judicial power of the Commonwealth[408]. 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."

     [404] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.

     [405] (1992) 176 CLR 1 at 27.

     [406] Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 444.

     [407] R v Davison (1954) 90 CLR 353 at 368, 383.

     [408] See, also, the War Crimes Act Case (1991) 172 CLR 501 at 536-539, 608-610, 613-614, 632, 647, 649, 685, 705-707, 721.

251. 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.

252. 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[409] might be seen to have been of that kind.

     [409] [1967] 1 AC 259.

253. 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.

254. 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.

255. 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.

256. 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.