http://www.austlii.edu.au/au/cases/cth/HCA/2012/2.html

Constitutional law (Cth) – Operation and effect of Constitution – Interpretation – Implied freedom of political communication about government or political matters – System of representative and responsible government – Validity of ss 132(1)(a) and 200(2) of Corrective Services Act 2006 (Q) – Whether statute complies with limitations on legislative power of State – Whether the impugned law effectively burdens freedom of communicating about government and political matters – Whether provisions reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government.

Administrative law – Relationship between Judicial Review Act 1991 (Q) and determination of issues of legislative validity – Whether validity of particular conditions imposed pursuant to s 200(2) of Corrective Services Act 2006 (Q) question of constitutional law or of compliance by repository of power with statutory limits.

Words and phrases – “constitutionally prescribed system of representative and responsible government”, “effectively burdens freedom of communication”, “impermissibly burdening”, “implied freedoms”, “political communication”.

per Heydon J
44 The Revised Explanatory Statement for the Evidence Bill 2011 (ACT) repeatedly refers to s 16 of the Human Rights Act. It does so in discussing the terms of cl 17(2) of the Evidence Bill 2011 (now s 17(2) of the Evidence Act 2011 (ACT)): “A defendant is not competent to give evidence as a witness for the prosecution.” The Revised Explanatory Statement says[38]:

“The clause engages the right to freedom of expression under section 16 of the Human Rights Act 2004. However, clause 17 of the Bill constitutes a lawful restriction on the freedom of expression under section 16 of the Human Rights Act 2004 as it acts as an important essential safeguard for the defendant to have a fair trial (section 21 Human Rights Act).”

These are strange remarks about a provision which prevents the prosecution from calling defendants as witnesses in the prosecution case, while leaving defendants free to give evidence in the defence case if they wish to do so. The provision does not prevent the defendant from exercising a right to freedom of expression, if that is what testifying in a desperate struggle to preserve one’s liberty involves. The calling by one party of the opposing party as a witness is not well characterised as an exercise in freedom of expression by the first party.

45 Similarly, the Revised Explanatory Statement, on the theory that the s 16(2) right to freedom of expression includes “the right to say nothing or the right not to say certain things”[39], examines cl 12 of the Evidence Bill 2011 (now s 12 of the Evidence Act 2011) in the light of s 16 of the Human Rights Act. Subject to other provisions, s 12 renders all competent witnesses compellable. This is said to be a “restriction on the right to freedom of expression” because “a witness may be compelled to answer certain questions or express certain information to the court.”[40] However, the provision is also said to be a “lawful restriction … as it is essential to ensuring the peaceful and effective functioning of society.”[41] The word “essential” is hard to square with the fact that societies have functioned peacefully and effectively with compellability regimes different from that involved in s 12.
46 The Revised Explanatory Statement engages in similar analysis for cl 41 (now s 41 of the Evidence Act 2011)[42]. Section 41 requires various kinds of improper questions in cross-examination to be disallowed. This is said to restrict the cross-examiner’s freedom of expression. On that basis any exclusionary rule of evidence would limit the freedom of expression of the party asking a question or tendering a document or thing which the rule requires to be rejected. Yet the Revised Explanatory Statement does not analyse every exclusionary rule in that light.
47 The Revised Explanatory Statement raises various questions in relation to the first Lange limb. Does s 17(2) of the Evidence Act 2011 fall within it? Do any of its equivalents in the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas) and the Evidence Act 2008 (Vic) do so? Indeed, does any provision in those enactments which restricts the capacity of a party to tender evidence fall within the first Lange limb? Are common law rules of evidence which restrict the capacity of a party to tender evidence to be modified after applying the second Lange limb because they fall within the first Lange limb?
…
55 On Callinan J’s approach, the Evidence Acts, for example, offer no “realistic threat” to the relevant freedom and do not burden it within the meaning of the first Lange limb. And on Callinan J’s approach neither of the legislative provisions challenged in this case creates a “burden” within the meaning of the first Lange limb.

http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html
Occupational health and safety – Statutory duty – Occupational Health and Safety Act 1983 (NSW), ss 15 and 16 provided duties of employer to “ensure the health, safety and welfare at work of all the employer’s employees” and that “persons not in the employer’s employment are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking” – Section 53(a) provided a defence where it was “not reasonably practicable … to comply with the provision of this Act” – Breach of duty criminal offence – Statement of offences as particularised did not identify what measures defendant could have taken but did not take to fulfil duty – Whether statement of offence must identify act or omission said to constitute contravention of s 15 or s 16 – Whether failure to charge act or omission an error of law – Whether error on the face of the record – Whether jurisdictional error.

Evidence – Competence and compellability of accused persons – Joint trial – Industrial Relations Act 1996 (NSW), s 163(2) required hearing to be conducted in accordance with the rules of evidence – Evidence Act 1995 (NSW), s 17(2) provided that a defendant is not competent to give evidence as witness for prosecution – No power of Industrial Court of New South Wales to dispense with s 17(2) – Defendant called as witness for prosecution – Whether jurisdictional error – Whether error on the face of the record.

Administrative law – Jurisdictional error – Error of law on the face of the record – Whether orders in nature of certiorari available.

Statutes – Privative clause – Industrial Court of New South Wales – Construction of privative clause – Whether privative provision effective to prevent review for jurisdictional error – Whether effective to prevent review for error of law on the face of the record – Relevance of exclusion of right to appeal to Supreme Court of New South Wales and to High Court of Australia.

Constitutional law (Cth) – Chapter III – State Supreme Courts – Power of State Parliament to alter defining characteristic of Supreme Court of a State – Supervisory jurisdiction – Whether a defining characteristic is power to confine inferior courts and tribunals within limit of their authority to decide.

Procedure – Costs – Appellate court exercising supervisory not appellate jurisdiction – Appellate court makes orders in nature of certiorari – Whether appellate court has power to make orders in place of orders quashed.

Words and phrases – “act or omission”, “certiorari”, “description of offence”, “error of law on the face of the record”, “jurisdictional error”, “privative provisions”, “reasonably practicable”, “superior court of record”, “Supreme Court of a State”, “the record”.
Evidence Act 1995 (NSW), ss 17(2), 190.

Heydon J (dissenting in part)

Defendant called as witness by the prosecution

114. The law required the hearing to be conducted in accordance with the rules of evidence. That follows from s 163(2) of the Industrial Relations Act 1996 (NSW) (“the IR Act”). It also follows from the Evidence Act 1995 (NSW) (“the Evidence Act”): see s 4(1) read with the definition in Pt 1 of the Dictionary of “NSW court”. In defiance of the prohibition in s 17(2) of the Evidence Act, the prosecution called Mr Kirk as its own witness in a criminal case. It was not open to the Industrial Court to dispense with s 17(2) pursuant to s 190, even with the consent of the parties. That error was not sinister in that it arose by reason of an oversight by the parties and the judge. But it was a jurisdictional error. The trial judge had jurisdiction to decide whether to fine the appellants after a trial conducted in accordance with the rules of evidence. He did not have jurisdiction to decide whether to fine the appellants after a trial which was not conducted in accordance with the rules of evidence. The jurisdictional error appeared on the face of the record, being mentioned at least twice in the trial judge’s reasons for judgment. Will every error in applying those of the numerous rules of evidence which cannot be dispensed with pursuant to the fairly strict requirements of s 190 or bypassed by agreeing facts pursuant to s 191 or outflanked by making admissions be a jurisdictional error? That question should be reserved for consideration from case to case. It is possible that there may be instances of failure to comply with the rules of evidence which are of insufficient significance to cause the court making them to move outside jurisdiction. It is also possible, as the majority suggest, that even insignificant failures would be jurisdictional errors, but not jurisdictional errors of a type justifying the exercise of an appellate court’s discretion in favour of granting relief[145].

115. But the error involved here in the prosecution calling a personal defendant as its witness to give a substantial quantity of testimony is within neither of these two categories. On any view it was a jurisdictional error, and there was no discretionary reason for refusing relief. For a long time it was controversial whether, and on what conditions, the accused should be made a competent witness[146]. The position adopted by the Imperial and Australian legislatures in the late 19th century was that the accused was not to be a competent or compellable prosecution witness, but was to be a competent witness for the defence. That position has been continued in s 17(2) of the Evidence Act. It is an absolutely fundamental rule underpinning the whole accusatorial and adversarial system of criminal trial in New South Wales. A sign, and a cause, of its fundamental character is the provision in s 190(1)(a) that the court cannot make an order dispensing with that rule, even with the consent of the parties.

116. I agree with the reasons of the majority for rejecting the proposition that even if Mr Kirk was not competent to give evidence in the case against him he was competent to give evidence as a witness against the Kirk company[147].

117. It would be wrong to do what the prosecution in this Court did not do – to treat the fact that Mr Kirk was called by the prosecution as a mere technicality of which the appellants have been able to take an adventitious and unmeritorious advantage at a late stage in these proceedings. The credibility of a witness in the position of Mr Kirk in relation to the defence under s 53 of the Occupational Health and Safety Act 1983 (NSW) (“the OH&S Act”) is capable of being affected by the manner in which the testimony is elicited. The law grants considerable power to a cross-examiner to employ leading questions and otherwise to operate free from some of the constraints on an advocate examining in chief. It does so for particular reasons. In New South Wales at least[148], normally in a criminal case an advocate cross-examining an accused person will have had no contact with the witness being cross-examined before the trial, and will have no instructions about what that witness will say, apart from whatever the witness said to investigating officials acting on behalf of the State or to other persons to be called as witnesses in the prosecution case or in documents to be tendered in that case. But a cross-examiner’s ordinary powers are, in a practical sense, much diminished when the witness being cross-examined is the client of the advocate conducting the cross-examination. The cross-examiner who persistently asks leading questions of a witness in total sympathy with the interests of the cross-examiner’s client is employing a radically flawed technique. The technique is the more flawed when the witness is not merely in total sympathy with the client, but actually is the client. For an inevitable appearance of collusion between an advocate and a client who had many opportunities for pre-trial conferences is suggested by the persistent use of leading questions in these circumstances. It is an appearance which is likely to be ineradicable, and which is likely to cause the value of the evidence to be severely discounted. This risk is avoided if the client is giving the evidence in chief rather than under cross-examination, for the client’s advocate is severely restricted in the capacity to ask leading questions in chief. Judging the credibility of a witness in the box can depend on the trier of fact making an assessment of that witness’s whole character. It is a process assisted by knowing as much about the witness’s character as possible. The credibility of testimony is often enhanced, and the assessment of credibility is assisted, when the testimony is given in answer to non-leading questions. Testimony given in answer to non-leading questions is the witness’s own testimony, resting on the witness’s own perceptions, and moulded by the witness’s own values. It is not something created by the narrow, specific and carefully crafted leading questions of an advocate concerned to shield the witness’s character as much as possible. On some issues in the trial in this case the prosecution bore the legal burden of proof, but on the vital s 53 issue Mr Kirk and the Kirk company bore the legal burden of proof. It would have been asking too much of human nature to have expected counsel for the prosecution to have elicited evidence from Mr Kirk on issues exclusive to the s 53 defence. That task thus lay with counsel for Mr Kirk and the Kirk company. It is a task one would expect to have been more satisfactorily accomplished from the defendants’ point of view if it were done by an advocate not able to make extensive use of leading questions. There are many reasons for the legislative choice made in s 17(2) and s 190, but this particular consideration alone indicates that there is nothing irrational about it, and nothing trivial about the failure to comply with s 17(2) in this case.

[1999] FCA 1606

CONTEMPT – penalty – whether contemnor should be cross-examined on hearing for penalty – nature of contempt proceedings – whether contemnor could be questioned in relation to a proposed settlement of overall dispute- whether the fact that fine may be paid by third parties relevant to determination of penalty – factors to be considered in determining penalty – circumstances in which “victim” of contempt could be awarded costs.

INDUSTRIAL RELATIONS – whether finding of contempt “prescribed offence” under Workplace Relations Act 1996 (Cth).

Evidence Act 1995 (Cth) s 17

[2003] NSWCCA 231