Friday, November 12, 2010

When laws go crazy

People interested in whether a legislature may require a court to act unjustly may get some pointers from French CJ's judgment in South Australia v Totani [2010] HCA 39 (11 November 2010).

This case was decided in the context of Australia's constitutional arrangements, but some fundamentals of interest to everyone are evident.

French CJ began by referring to the assumption of judicial independence which underlies the constitution [1] and which has its origin in English law [59], where fairness and impartiality were recognised as characteristics of proceedings in courts of justice [60]. While the characteristics of a court cannot be defined in a single all-embracing statement, an essential is the conduct of an adversarial trial by an independent and impartial tribunal [62]:

"At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court, including, but not limited to, the influence of the executive government and its authorities [footnote: As to the multiple location of judicial decisional independence in separation-of-powers protections providing for "judicial independence" and within the rubric of "due process" and "the rule of law", see Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process, (2009) at 8]. Decisional independence is a necessary condition of impartiality. Procedural fairness effected by impartiality and the natural justice hearing rule lies at the heart of the judicial process [footnote: For a recent discussion of the natural justice hearing rule in this context, see International Finance Trust Co Ltd [2009] HCA 49; (2009) 240 CLR 319 at 379-384 [139]- [150] per Heydon J.]. The open-court principle, which provides, among other things, a visible assurance of independence and impartiality, is also an "essential aspect" of the characteristics of all courts, including the courts of the States [footnote: Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 520 per Gibbs J; see also at 505 per Barwick CJ, 532 per Stephen J; [1976] HCA 23]."

Important for this case, but also of potential general application, is the idea that a legal system cannot require a court to act in a way which impairs its "institutional integrity". In the context of Totani, this idea appears as [69(3)]:

"The institutional integrity of a court requires both the reality and appearance of independence and impartiality [Footnote: Forge [2006] HCA 44; (2006) 228 CLR 45 at 77 [66] per Gummow, Hayne and Crennan JJ, citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [7]- [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ]."

And the fundamental nature of that requirement - the reality and the appearance of independence and impartiality - is historical, pre-dating Australia's federation [72]:

"...Forms of external control of courts "appropriate to the exercise of authority by public officials and administrators" are inconsistent with that requirement [Footnote: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at 553 [10] per Gummow, Hayne, Heydon and Kiefel JJ ]. The requirement is not a judicially generated imposition. It derives from historically based assumptions about courts which were extant at the time of Federation."

This form of argument is potentially a powerful weapon against those who would support the idea that a sovereign legislature may enact any law it wishes. I have a written a brief note on this sort of thing in "Criminal Equity" [2000] New Zealand Law Journal 427. By "criminal equity" I mean the pursuit of fairness in the criminal context by looking beyond the black-letter law. Since then, we have enacted a potential cause of unfairness in s 21 of the Evidence Act 2006[NZ] which is absolute in its terms. It is wide enough to prevent admission of the exculpatory parts of a defendant's statement to the police unless he gives evidence at his trial. In cases where this would operate unfairly, the court has to, in effect, disregard s 21, but, since the court does not have the power to rule the legislation unconstitutional, this is done under the guise of recognising an implicit power to require the prosecution to lead the exculpatory statement to prevent unfairness. In a case that seems to be currently subject to a suppression order, [2009] NZCA 607, (2009) 24 CRNZ 527, the Court of Appeal has said, at [19]:

" ... such a power must be implicit in s 25 of the New Zealand Bill of Rights Act 1990. In the event of an unfair decision by a prosecutor not to lead evidence as to what an appellant said at a police interview, it would thus be open to the Court to require that evidence to be led. As to this, see Illingworth and Mathias “The Admissibility of Hearsay Statements and Opinion Evidence” in Young and Chambers Evidence Act 2006 (NZLS Intensive June 2007) at 50 – 51."

Essentially this is using the inherent power to prevent an abuse of process to qualify the statutory language in the interests of trial fairness. The jurisdiction to prevent an abuse of process is inherent in the function of the court.