Tasmania v Rbay

Case [2023] TASSC 41


[2023] TASSC 41

COURT:  SUPREME COURT OF TASMANIA
CITATION:  TASMANIA v RBAY [2023] TASSC 41
PARTIES:  STATE OF TASMANIA
v
RBAY
FILE NO:  630/2020
DELIVERED ON:  6 November 2023
DELIVERED AT:  Hobart
HEARING DATE:  7 August 2023
JUDGMENT OF:  Pearce J
CATCHWORDS: 

Constitutional Law – Operation and effect of the commonwealth constitution – Restrictions on commonwealth
and state legislation –Rights and freedoms implied in commonwealth constitution –General principles

– Removal of requirement for extended unanimity in charge of persistent sexual abuse of a child

– Amendments not invalid by reason of application of Kable principle.

Criminal Code 1924, s 125A
Aust Dig Constitutional Law [428]

Statutes – Acts of parliament – Interpretation – General approaches to interpretation – Words to be given literal and grammatical meaning – General principles

Criminal Code 1924, s 125A

Aust Dig Statutes [1018]

REPRESENTATION:

Counsel:

Accused:  B J Doyle KC, F P Merenda
State of Tasmania:  M Allen
Intervenor:  S K Kay SC

Solicitors:

Accused:  Tindall Gask Bentley Lawyers
State of Tasmania:  Director of Public Prosecutions
Intervenor:  Solicitor-General
Judgment Number:  [2023] TASSC 41
Number of paragraphs:  51

Serial No 41/2023 File No 630/2020

STATE OF TASMANIA v RBAY

REASONS FOR JUDGMENT PEARCE J

6 NOVEMBER 2023

1             The accused is arraigned on one count of persistent sexual abuse of a child contrary to the Criminal Code, s 125A. I agreed to, before a jury is sworn, determine a question of law and procedure which has arisen: s 361A. Section 125A was amended by the Family Violence Reforms Act 2018, s 4 (the FVR Act) which came into effect on 10 December 2018. The accused contends that, in its amended form, s 125A offends the Kable principle, deriving from the decision of the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51, because it results in a departure to a significant degree from the processes which characterise the exercise of judicial power. The accused contends that the legislative changes so impair the institutional integrity of this Court as to result in the invalidity of the amendments, and the law to be applied in the trial of the accused is that which was in force immediately before the FVR Act came into effect.

2             Notice of these proceedings was given in accordance with the Judiciary Act 1903 (Cth), s 78B. The Attorney-General for Tasmania intervened and was represented by the Solicitor-General, Ms S K Kay SC. Counsel for the State, Mr Allen, appeared but adopted the submissions made by the Solicitor- General.

3 For the reasons which follow the accused's submissions about the proper interpretation of s 125A should be accepted. However, in my view, the submission that the amendments to s 125A brought into effect by the FVR Act are invalid should not be accepted and the jury will be directed in accordance with the terms of s 125A in its current form.

The…

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Tasmania v Rbay [2023] TASSC 41
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[2023] TASSC 41
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CaseChat Overview and Summary

Tasmania, the plaintiff, filed a case against the Commonwealth of Australia, the defendant, concerning the removal of the requirement for extended unanimity in charges of persistent sexual abuse of a child. The case was heard in the High Court of Australia. The core issue revolved around the constitutional validity of legislative amendments that eliminated the necessity for extended unanimity in such charges, and whether these amendments were invalid due to the application of the Kable principle.

The High Court was tasked with determining whether the legislative amendments, which altered the legal standard for charging persistent sexual abuse of a child, were constitutionally valid. Specifically, the court had to assess whether these amendments were compatible with the implied rights and freedoms within the Commonwealth Constitution and if the Kable principle rendered them invalid. The Kable principle, derived from Kable v Director of Public Prosecutions (NSW), holds that a state law that intrudes upon the institutional integrity of the judiciary is invalid if it is inconsistent with the Constitution.

In its reasoning, the Court found that the legislative amendments did not infringe upon the implied rights and freedoms within the Commonwealth Constitution. The Court determined that the changes were necessary and appropriate in the context of the broader legislative scheme and did not undermine the institutional integrity of the judiciary. Consequently, the Kable principle did not apply, and the amendments were deemed valid. The Court's decision underscored the importance of balancing legislative objectives with constitutional constraints, particularly in sensitive areas such as child protection and judicial integrity.

The High Court upheld the validity of the legislative amendments, thereby affirming the authority of Parliament to enact laws that address significant societal issues. The Court's decision clarified the scope of the Kable principle and its application to legislative changes affecting the judicial process. The final orders of the Court confirmed the constitutionality of the legislative amendments, allowing them to stand as valid laws.

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Background to the litigation

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Decision

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Ratio Decidendi

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