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Simpson, Amelia; Wood, Mary --- "A Puny Thing Indeed'-Cheng v The Queen and the Constitutional Right to Trial by Jury" [2001] FedLawRw 5; (2001) 29(1) Federal Law Review 95


"A Puny Thing Indeed"[1]Cheng V The Queen And The Constitutional Right To Trial By Jury

Amelia Simpson[*] and Mary Wood[**]


On 5 October 2000, the High Court handed down its latest decision on the scope of s 80 of the Commonwealth Constitution.[2] This note provides an overview of the decision and its importance, and offers a critique of the reasoning employed in the majority judgments.

Section 80, variously described[3] but commonly referred to as the trial by jury provision, "has led to some of the sharpest divisions of opinion in the history of this Court".[4] Whilst the decision in Cheng v The Queen (hereafter Cheng) confirms the interpretation given to s 80 in Kingswell v The Queen[5]—which involved a challenge to the same provisions of the Customs Act 1901 (Cth)—some of the judges making up the majority in Cheng admitted to reservations about that interpretation. In addition, Kirby J and Gaudron J were vociferous in their disagreement with much of the majority's reasoning, which suggests that fundamental differences over the meaning of s 80 will continue to plague the Court into the future.

Cheng consolidates the traditional view that the federal Parliament has the power to determine which federal offences are indictable, and thereby which offences must conform with the s 80 requirement for a trial by jury where an offence is tried on indictment. Section 80 provides that:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

In Kingswell, a majority of the High Court[6] held that s 233B(1) of the Customs Act creates various offences, for which s 235(2)-(3) stipulates penalties that differ according to the quantity of the prohibited substance, among other things. Accordingly, Mr Kingswell failed to persuade the Court that the legislative scheme was unconstitutional because it allowed for some elements of an indictable offence—namely, the matters appearing in s 235—to be tried by a judge alone. Although the penalties for a s 233B offence depended on a finding by a judge, rather than a jury, as to whether or not a "commercial quantity" of goods had been imported, this was held not to infringe s 80. According to a majority of the Court, the legislature enjoys the power to define the elements of offences against the Commonwealth.


Only the first clause of s 80, regarding the definition of "offence", was at issue in Cheng. Cheng confirmed the view expressed in Kingswell that Parliament may determine what are the elements of any particular offence, as distinct from "aggravating factors" which may be determined by a judge alone and which result in a lengthier sentence. Yet there is a distinct tradition of dissent with respect to the scope of s 80 that rivals the orthodox view. This tradition is continued in what we term the "minority" judgments in Cheng: Kirby J's judgment amounts to a true dissent, while Gaudron J, although agreeing in the orders made, employed reasoning fundamentally at odds with that of the majority. Gaudron J and Kirby J, like their predecessors in the tradition of s 80 dissents, adopted interpretative principles more consonant with modern, rights-protective jurisprudence than did the majority judgments, which effectively allow Parliament to evade the operation of s 80. These divergent views, and the emphasis in Gleeson CJ, Gummow and Hayne JJ's judgment that the particular facts of Cheng precluded them from re-examining s 80 jurisprudence, suggest that any attempt by Parliament to bypass the operation of s 80 in the future still cannot be guaranteed to withstand constitutional challenge.

Cheng involved three applicants, Yu Shing Cheng, Gang Cheng and Bach An Chan, each of whom had been charged (along with two other persons) with being knowingly concerned in the importation of a prohibited import contrary to s 233B(1)(d) of the Customs Act.[7] Cheng, Cheng and Chan were each convicted of an offence against the Commonwealth in the Supreme Court of South Australia,[8] after pleading guilty to importing over 9 kilos of heroin into Australia in November 1997. They were later sentenced under s 235 of the Customs Act. However, the applicants had pleaded guilty only after the trial judge had rejected their argument, raised in pre-trial proceedings, that s 233B(1)(d) of the Customs Act was invalid for non-conformity with s 80 of the Constitution. The argument was treated as a demurrer to the indictments. Debelle J in the Supreme Court proceedings overruled the argument, which was heard before a jury was empanelled, on the ground that he was bound by the High Court's decision in Kingswell.[9]

Having pleaded guilty, the three applicants restricted their subsequent statements to considerations relevant to sentencing when they appeared before Debelle J again, on 3 December 1998, to receive a penalty. After being sentenced to lengthy jail terms by Debelle J, each of the applicants appealed to the Court of Criminal Appeal of South Australia[10] against conviction—seeking to reopen the constitutional point—and also seeking leave to appeal against sentence. That Court reduced the sentence of each applicant, in light of the shorter sentences imposed on their co-offenders in New South Wales. However the Court dismissed the appeals against conviction on the same ground as Debelle J, stating that Kingswell was binding authority as to the validity of ss 233B and 235 of the Customs Act.[11]

The applications for special leave to appeal to the High Court were heard as a full proceeding on the merits of the substantive issues before a Full Court. Gleeson CJ, Gummow and Hayne JJ ruled together, while Gaudron J, McHugh J, Kirby J and Callinan J each delivered separate judgments. Although the judgments characterised the issues in slightly different ways, each addressed the following questions:

(a) Does s 233B(1)(a)-(e) of the Customs Act represent a series of self-contained offences, the length of sentence for committing such an offence increasing if the judge is convinced that one or more aggravating factors specified in the sentencing provision (s 235) is established? Alternatively, do ss 233B and 235 create in combination a greater range of offences than does s 233B when read alone, some of which have elements expressed in s 235 that must be tried by a jury according to s 80 of the Constitution?

(b) Did the applicants' guilty pleas mean that it was unnecessary to determine the alternative constructions of the relevant provisions of the Customs Act set out at question (a), because the applicants were taken by their plea to admit to all of the facts alleged in the indictment (which included the aggravating factors relied upon in sentencing)?

(c) Did the existence of previous relevant decisions of the High Court, in particular Kingswell, mean that the Court need not consider question (a) on its merits, because a challenge to the same provisions had been made and similar issues discussed by an earlier Court?

(d) Does s 235 require the prosecution to establish, to the Court's satisfaction, an accused's intention to import the actual quantity imported, where that quantity is relied upon as an aggravating factor? Futher, can an appeal court substitute its findings for that of the trial judge in respect of proof of aggravating factors?

The treatment of questions (a) to (c) in each of the judgments is discussed below. As no constitutional issues turned on question (d), it is not discussed.[12]

(a) "Offence" in s 80—can Parliament determine what matters are elements of an offence and what are merely aggravating factors?

There was no new light shed on this matter by Gleeson CJ, Gummow and Hayne JJ. In their joint judgment, they refused to consider the submission by the applicants that "offence" in s 80 "is defined by the combination of the elements of the offence and the penalty which that combination attracts",[13] principally because they held that the facts of the particular case before them did not warrant a reconsideration of Kingswell.

By contrast, Callinan J revealed something of his opinion about the merits of the argument that Parliament does not have the liberty to exclude from the jury's consideration any matter that, if true, can dramatically increase the penalty for an offence. He stated that "[i]t is impossible not to feel disquiet about a proposition that might leave it entirely for the legislature to define what is, and what is not to be an offence charged on indictment, and its elements". Nevertheless, Callinan J found that he was compelled to reject the applicant's argument in consideration of the apparent intentions of the Constitution's framers, the absence of legislative abuse of the jury tradition in Australia, and the authority of Kingswell.[14] McHugh J also expressed some regret about the effect of the interpretation of s 80 in Kingswell, because it gives that provision "little purpose".[15] But after evaluating the view expressed by Gibbs CJ, Wilson, Dawson and Mason JJ in Kingswell that "offence" has "no technical meaning in law", and having considered s 6E of the Sentencing Act 1991 (Vic) as an example of a law that exposes an offender to a greater punishment by reference to specified circumstances, he concluded that:

If the legislature has made the breach of a law the "offence" and indicated that, while an aggravating feature calls for a heavier sentence, it is not part of the offence, that is the end of the matter. Nothing in the notion of "offence" requires the aggravating feature to be regarded as an element of the offence for the purpose of s 80 or otherwise.[16]

Gaudron J and Kirby J both took issue with this orthodox view. Gaudron J appeared to accept the presumption of statutory construction (articulated by the majority in Kingswell and affirmed explicitly by McHugh J and Kirby J in Cheng) that Parliament intends to create separate offences where a statute provides for a greater penalty if a particular factor is present. Nevertheless, she did not regard this as relevant to the issue of whether Parliament may, for s 80 purposes, define "offence" in any way it chooses. Justice Gaudron examined United States authorities on the guarantee of trial by jury in Art III of the United States Constitution, which she regarded as the framers' model for s 80. These authorities led her to conclude that s 80:

operates to deny to the Parliament the power to create a single offence with a range of different maximum penalties varying according to the circumstances of its commission which, if disputed, are to be determined by a judge and not the jury. [17]

Accordingly, as a matter of construction of the relevant provisions of the Customs Act, Gaudron J viewed ss 233B and 235 as operating "in combination" to create a range of distinct offences attracting different penalties that are specified in s 235.[18] So construed, and given that the applicants did not dispute the quantity of heroin specified in the indictment, she did not find s 235(2) invalid in any respect and so did not regard the convictions as involving any miscarriage of justice.[19] Justice Gaudron recommended nevertheless that special leave be granted, to enable the Court to determine the validity of ss 233B and 235(2). However, she held that the appeal should be dismissed.

As mentioned above, Kirby J also affirmed the presumption of statutory construction that operates where a law exposes an accused to greater punishment in different circumstances.[20] However, like Gaudron J, he considered that the operation of s 80 is a separate issue and that Parliament's capacity to rebut the presumption, by indicating a clear intention to create a single offence with graduated punishment, is limited in relation to indictable crimes of the Commonwealth. Specifically, he stated that:

any essential element of an offence which concerns conduct on the part of the accused must be proved if it is contested. Other considerations [such as a prior conviction] that concern matters personal to the offender may indeed affect sentencing once the offender is properly convicted. Such considerations do not need to be pleaded as elements of the offence or necessarily particularised in the initiating process. But where specified conduct on the part of an accused, if proved, renders that person liable to different, additional and particular punishment, the specification of such conduct constitutes an element of a separate "offence" for the purpose of s 80 of the Constitution. Where that element is contested, it attracts, in a trial on indictment, an obligation to have the jury's verdict upon it.[21]

Justice Kirby held that special leave to appeal should be granted and the appeals upheld. Accordingly, he would have ordered that the convictions and sentences be set aside.[22]

(b) What significance did the fact of the applicants' guilty pleas have on the outcome of the case?

Gleeson CJ, Gummow and Hayne JJ cited four reasons in Cheng for their refusal to reconsider the issue of whether s 235 impermissibly quarantined elements of a s 233B offence from a jury by enacting them as sentencing matters. Principal among their reasons was the fact that each applicant had pleaded guilty to the charge on indictment. Further, the charge had included the aggravating factors relied upon in sentencing, meaning that there had been a chance for the applicants to contest the latter.[23]

The reliance on this fact is a critical point of distinction between the judgment of Gleeson CJ, Gummow and Hayne JJ and that of Kirby J. Gleeson CJ, Gummow and Hayne JJ stated that if "there had been a dispute as to the amount of heroin imported [after the indictment citing the quantity alleged by the prosecution was issued] then, even though the applicants had entered pleas of guilty, there may have been an issue for determination by the jury".[24] However, despite emphasising the factual limits of the case and its consequent unsuitability as a vehicle for re-examining the scope of s 80 (which emphasis implies that cases with different facts could justify such re-examination),[25] their Honours stated that "an occasion to consider the questions presented by the applicants' contentions may be unlikely to arise if there continues the practice of charging and trying the aggravating circumstance of quantity or relevant prior conviction, as proposed in Kingswell and approved in Meaton".[26] In R v Meaton[27] a majority of the High Court held that if the prosecution follows the practice of including the circumstance of aggravation in the indictment, the jury has the opportunity to make a finding on it and thus no contravention of s 80 arises.

In contrast to the majority view, Kirby J considered that the applicants' guilty pleas did not detract from the fact that the "language and structure" of the Customs Act unlawfully deprived them of their right to have a jury's verdict upon the quantity of the prohibited substance, which he viewed as an element of the offence.[28] He pointed out that the pleas were only entered after the demurrer was overruled, which in turn was done because the primary judge held himself bound to follow the High Court's decision in Kingswell. Further, concerning the first and second applicants, Kirby J stated that:

the proper understanding of what occurred before Debelle J, when he was proceeding to sentence them, was that they tended their plea on the basis of an express denial of the circumstance of aggravation. Because the prosecution did not reject that denial in their cases, but accepted the plea in that context, Debelle J indicated (to the extent stated) that he was himself prepared to accept such pleas. It was only because he appeared to take the view that the determination of the factual matters important to the penalty was for him alone (constituting as he did "the Court" [referred to in s 235]), that he did not treat the knowledge and intent of any of the applicants concerning the quantity of the prohibited import ... as determinative of the loss of liberty to which each of the applicants was exposed.[29]

Regardless of the guilty plea and, in fact, the guilt of the applicants, Kirby J emphasised that the "bifurcation" of the offence into elements and aggravating factors, effected on arbitrary lines by Parliament, was inconsistent with the requirements of s 80.[30] Accordingly he considered that the applicants, having "properly reserved the point of constitutional law", were "entitled, in this Court, to have the benefit of it".[31]

(c) How did the Court treat previous cases on identical and similar issues?

This aspect of the Court's reasoning can be described fairly briefly. However, the influence of precedent upon the outcome in Cheng, and the majority's specific concerns regarding the indeterminacy of a rights-protective construction of s 80, will be further considered below.

For Gleeson CJ, Gummow and Hayne JJ, McHugh J and Callinan J, the existence of previous decisions on the scope of s 80—and the apparent endorsement that these cases give to a narrow, procedural interpretation of s 80—was a principal factor in the decision to dismiss the special leave applications in Cheng. Gleeson CJ, Gummow and Hayne JJ stated that "the decision in Kingswell, which is crucial to the outcome of the present case, and which we are asked to reconsider, did not turn upon the point [of whether the indictment practice prescribed in Meaton is sound]".[32] Further, they did not understand the applicants to be arguing that "developments since Federation have thrown new light upon the meaning of s 80, or have altered the context in which it operates", so as to justify a fresh approach.[33]

For Gleeson CJ, Gummow and Hayne JJ, their reluctance to reopen Kingswell in this particular case was fortified by what they considered to be the intentions of the Constitution's framers as to the meaning of s 80. They viewed the Convention Debates and other historical material as confirming the correctness of the procedural view of s 80 accepted in Kingswell.[34] The historical focus also features in McHugh J's judgment, his Honour concluding that "[w]hether one looks at text, history or purpose, the answer is the same: the approach to the construction of s 80 accepted by the majority in Kingswell and by this Court in earlier cases is correct".[35] As to the earlier decided cases, McHugh J regarded these as constituting a "long line of authority" in support of the procedural interpretation of s 80, a line from which the Court could not depart lightly.

Callinan J advanced similar reasons for his decision to dismiss the Cheng applications. Curiously, though, his judgment is composed principally of excerpts from dissenting judgments in s 80 cases, all advancing a more robust role for that provision. In particular, Callinan J discussed recent High Court decisions—Brown v The Queen,[36] Cheatle v The Queen[37] and Katsuno v The Queen[38] —which the applicants had relied upon as indicating a shift in thinking on s 80 since Kingswell was decided. Callinan J did not explicitly dispose of this contention of the applicants'. To the contrary, he stated that "[i]t is true that both the majority and the minority in Brown recognised the status of s 80 as a fundamental constitutional guarantee".[39] Yet Callinan J proceeded to find that given the deliberate selection of words in s 80 by the framers, the "recent" decision of Kingswell, "its effective reaffirmation in Meaton", and the "apparently satisfactory way" in which the practice of including an alleged aggravating factor in the indictment operates, the applicants must fail.[40] He did not indicate whether, if Parliament attempted an "oppressive misuse" of its re-affirmed power to define what is an offence charged on indictment, or if the indictment practice lapsed or was shown to be unsatisfactory, this might justify a reversal of doctrine on s 80.

Gaudron J took an entirely different approach to Kingswell and the earlier authorities. She held that, since there was no issue in Cheng as to whether the offence charged was "indictable", it was unnecessary to consider those authorities.[41] Nevertheless, Gaudron J reviewed the reasoning in Kingswell and indicated her view as to its correctness:

The importance of jury trial to the individual and to the judicial system renders it imperative, in my view, that s 80 be approached in the same manner as those other provisions which have been recognised as constitutional guarantees. More precisely, that consideration necessitates that s 80 be construed by reference to the same canons of construction. And in this regard, it is well settled that constitutional guarantees are to be construed liberally and not pedantically confined.[42]

Of all the judgments in Cheng, Kirby J's places the least importance on the earlier cases regarding s 80. For Kirby J, those cases provided mere background from which his dissenting arguments derived their form and focus. His view of the effect of the prevailing interpretation— that it has withered s 80 to an "ineffective hortation" that "might just as well not have been included in the Constitution"[43]—in itself led him to reject that interpretation. Justice Kirby summarised the submissions of the Commonwealth as amounting to, first, an urging that "a proper sense of intellectual modesty commanded acceptance of some rulings even when there were personal doubts" and, second, a series of doomsday predictions regarding the disruption, cost and substantive injustice that would ensue if Kingswell were overruled.[44] Whilst conceding that these submissions provided "powerful reasons for restraint", Kirby J did not find them ultimately persuasive in the context of interpreting express rights in the Constitution.[45] Explaining his departure from the orthodox view, he said:

The history of s 80 and debates or writings about its expected operation may certainly be read for illumination or guidance. But the consideration that governs the meaning of the constitutional text is the ascertainment, with the eyes of the present generation, of the essential characteristics of the text read as a constitutional charter of government. We are not chained to the expectations of 1900.[46]


In the result, a majority of the High Court refused the applicants special leave to appeal. In doing so they confirmed the two key propositions for which Kingswell stands. First, on the meaning of the term "offence" in s 80—an issue calling for direct decision in Cheng—a majority held that that term has no fixed or objective meaning such as to preclude Parliament from hiving some contestable issues off into the sentencing process. Second, on the meaning of "indictable"—not at issue in Cheng but dealt with in substantial dicta—a majority indicated support for the orthodox view under which Parliament retains complete discretion to decide which offences will be tried on indictment. The remainder of this note considers the soundness of those conclusions.


As can be distilled from the overview presented above, the majority judgments in Cheng raised several distinct arguments in justifying their continued adherence to the procedural interpretation of s 80 favoured in Kingswell. Most importantly, they claimed that: Kingswell was supported by a clear line of authority; Cheng was not an appropriate case in which to review Kingswell, as the construction of s 80 was not raised squarely by the facts; a rights-protective interpretation would draw the Court into an arbitrary line-drawing exercise; to overturn Kingswell would generate inconvenience for the Commonwealth, which has acted in reliance upon its correctness; and, the non-rights protective interpretation accords with the intention of the framers. There are problems with each of these assertions, warranting a more detailed examination here.

The dubious pedigree of Kingswell

Despite the protestations in several of the Cheng judgments that the weight of precedent ruled out any reconsideration of s 80's meaning, an analysis of the early s 80 cases suggests considerably more flexibility. We agree with other writers that the lineage of the Kingswell 'procedural' view of the provision is far from impressive.[47] In R v Archdall & Roskruge; Ex parte Carrigan and Brown,[48] the first case to raise directly the question of s 80's meaning, the joint majority judgment rejected a rights-protective interpretation and endorsed the procedural interpretation that retains favour today. However, this majority in Archdall refused outright to provide any reasons for its conclusion,[49] an omission which by today's standards, at least, casts doubt upon the decision's precedential value. As Gleeson CJ emphasised recently, while speaking on the topic of judicial legitimacy:

Decisions of the High Court are not subject to the usual form of judicial accountability, that is to say, the appeals process. The only form of accountability which applies is the requirement to give reasons. [50]

Judicial reasons for decision are regarded as critical to the proper functioning of the doctrine of precedent, as they "bear witness that [a decision] was reached through the discipline of the pattern of the law".[51] As the Court regards itself as technically free to depart from its own previous decisions, an absence of articulated reasons for such a past decision must further loosen the grip of precedent.[52]

Following Archdall, the Court's next opportunity to adopt a rights-protective construction of s 80 came in R v Federal Court of Bankruptcy; Ex parte Lowenstein.[53] There, two members of the Court followed Archdall,[54] two expressed no relevant opinion,[55] and the remaining two—Dixon and Evatt JJ—delivered an careful dissenting judgment, insisting that s 80 be interpreted as a fundamental guarantee because "the Constitution is not to be mocked".[56] Not only, then, does Lowenstein provide no majority endorsement of Archdall, it also contains a widely quoted and powerful dissent from the Archdall position. Nevertheless, Archdall and Lowenstein have together become the foundation stone upon which the Court's subsequent s 80 decisions have been, and continue to be, constructed.[57] For anyone apprised of the underlying problems with this pedigree, though, this reliance appears as a thoughtless incantation and an illustration of the potential dangers of the doctrine of precedent.

Whether the interpretation of s 80 is an issue arising on the facts of Cheng

The majority judgments of Gleeson CJ, Gummow and Hayne JJ and Callinan J relied upon the applicants' guilty pleas to assert that Cheng was not a suitable case in which to reconsider the Kingswell view of s 80. Conversely, Kirby J found—and Gaudron J and McHugh J seemed to have assumed[58]—that the applicants had properly reserved a contestable point in relation to the application of Kingswell. The latter view is, we think, the more convincing.

Gleeson CJ, Gummow and Hayne JJ initially conceded that the applicants' guilty pleas were entered only following their "having failed to persuade Debelle J to quash the indictment" on the constitutional point.[59] However, they then asserted that the case was not an appropriate one in which to raise that constitutional point because the applicants had pleaded guilty.[60] This inversion of cause and effect neglects the fact that the guilty pleas were conditional on Debelle J's ruling on the constitutional point, as to which Debelle J was clearly bound by Kingwell. The point was taken prior to the entering of guilty pleas and the convictions were thus contingent on the correctness of that ruling, a ruling which the applicants were always entitled to challenge on appeal.[61] Yet Gleeson CJ, Gummow and Hayne JJ did not address the significance of the applicants' demurrer and motion to quash, preferring instead to focus their attention on the fact of the guilty pleas and implying that those pleas effectively disentitled the applicants to raise any constitutional arguments. Consequently, in their view, "no command in s 80 was disobeyed in the present case". [62] A challenge to the Kingswell view of s 80 could, they said, only be mounted in a case where an accused pleading not guilty had been denied his or her claimed entitlements under s 80. Callinan J seemed to agree with this assessment.[63]

That majority view does not sit comfortably with the rule of law, as that principle operates in the criminal law context. In our legal system, an admission of guilt is not, of itself, enough to sustain the conviction and punishment of an accused person. In the absence of a valid law declaring particular conduct to be criminal, a person accused of engaging in that conduct must escape legal sanction, regardless of the practical or moral objections that this might provoke.[64] Had the applicants in Cheng been correct in their assertion that the relevant provisions of the Customs Act were unconstitutional, they could rightly assert that they had been charged with and convicted of non-existent offences. Accordingly, the Court would have been obliged to quash those convictions, even if the applicants had admitted the acts constituting the putative crime. In accepting this proposition, Kirby J was in agreement with the court below and with a long line of authority.[65] As the applicants' reserved constitutional point impugned directly the validity of s 233B of the Customs Act as construed in Kingswell, it is impossible to escape the conclusion that Cheng raised squarely the correctness of that decision and its construction of s 80. Accordingly, the fact of the guilty pleas is irrelevant, particularly in the context of the demurrer— itself a form of assertion of guiltlessness.

The unwillingness to engage in line drawing

One of the factors dissuading members of the majority from any recasting of s 80 was the suggested indeterminacy of the rights-protective interpretation. Gleeson CJ, Gummow and Hayne JJ[66] and McHugh J[67] pointed out that the various dissenting judgments over the years, in which an objective concept of indictment had been favoured, had all suggested different tests to identify those offences that would be deemed indictable—"serious criminal offences";[68] offences exposing an accused to "imprisonment or to some graver form of punishment";[69] or, offences "punishable ... by a maximum term of imprisonment of more than one year".[70] For Gleeson CJ, Gummow and Hayne JJ and McHugh J, the element of arbitrariness involved in any such test, and the fact that no single test has gained universal favour among s 80 dissenters, provided further justification for maintaining the status quo—that is, for retaining the current procedural interpretation of s 80.

For Gaudron J and Kirby J, on the other hand, the risks involved in introducing an element of arbitrariness and giving judges the power of discretionary line-drawing was preferable to the retention of an unsatisfactory interpretation. Their stance places trust in the ability of judges to be doctrinal architects, that is, to develop rational, principled tests productive of stability and predictability. This is an eminently sensible view. The mistrust evident in the majority judgments can hardly be vindicated by the absence of a standard, enduring test common to all of the dissenting judgments on s 80. The various formulations offered in dissenting judgments have been expressed to be tentative only, or have been offered by way of illustration of the possibilities. This element of the hypothetical is perhaps to be expected in dissenting judgments. In any case, the Court has proved time and again that it can generate enduring tests in the absence of any obvious formula or clear objective yardstick, simply by setting careful and clear parameters.[71] Agreement upon a test to identify, in an objective fashion, "indictable" offences should pose no peculiar problem for a Court that has dealt with innumerable complex line-drawing tasks.

Arguments based on considerations of convenience

A strange feature of the Cheng decision is the relevance attached by some members of the majority to issues of practicality or convenience. Gleeson CJ, Gummow and Hayne JJ, referring to the Attorney-General's submission relating to the number of current federal prisoners who had been convicted and sentenced under the impugned provisions, said that although this fact "is not fatal to the applicants ... it is a consideration not lightly to be disregarded."[72] Callinan J went further, placing reliance upon the fact that "the Australian experience has not been of any oppressive misuse of the statutory power to define offences" and also on "the apparently satisfactory way in which the practice ... prescribed in Meaton operates".[73]

This aspect of the majority's reasoning attracted sharp criticism from Kirby J. He contends that it is offensive not only to morality, but also to settled interpretative method, to take account of factors of convenience in a case bearing upon an individual's personal liberty. He observes, wryly, that his colleagues were far less concerned to advance convenience in the recent cases of Re Wakim[74] and Wilson,[75] where similarly constituted majorities struck down convenient and long standing legal arrangements in order to preserve the purity of federal judicial power.[76] Kirby J's observation is an astute one, as this incongruity speaks volumes of the attitude taken by most current members of the Court to issues of fundamental rights more generally.

There is a further way in which this recourse to convenience tends to suggest the influence of unarticulated value judgments. To many minds, judicial assessments about what is or is not practical, and about the significance to be attached to practicalities in shaping the law, would seem to unleash a much more powerful judicial discretion than that needed to settle upon and apply an objective conception of "offence" or "indictment". Yet in Cheng, the majority judgments appear quite comfortable with the former while firmly resisting the latter. One wonders whether this inconsistency was evident to the members of the majority, as there is no attempt to defend, or even to conceal, the apparent double standard.

Doubt as to the founders' intentions

In the Incorporation Case[77] Deane J, in dissent, voiced his concerns about the majority's ready embrace of the Convention Debates as a tool for resolving ambiguities in the Constitution's text. Aside from his normative objections,[78] he also raised a practical objection—the debate on the relevant issue in that case amounted to only a "few brief references" that did not sit well with "contradictory statements in [other] early authority".[79] Deane J's concerns have particular resonance when one analyses the use made of the Debates in Cheng. In our view, the framers' discussions of provision that became s 80 are at the very least indeterminate as to, and more probably directly supportive of, a rights protective view of s 80. Yet the majority judgments in Cheng proceed upon a highly selective reading of this material to deny that intention to the framers.

The jury trial provision, as originally drafted, was read and agreed to without discussion at the 1891 Federal Convention in Sydney.[80] At the 1897 Convention in Adelaide, Mr Higgins (Victoria) announced his intention to vote against the provision, on the basis that it fettered what would otherwise be the Parliament's discretion to grant or withhold jury trials.[81] No other delegates spoke, and the provision was endorsed in its original form once again. At the 1898 Melbourne Convention several amendments were proposed and debated. The most telling discussion, in our view, took place on the 31 January 1898, though the judgments in Cheng either neglect this particular discussion entirely or draw from it only selectively.

On that date, Mr Glynn (South Australia) moved to strike out altogether the requirement for trials by jury, leaving the provision to deal only with the place at which trials must be held. In his view, the Constitution "should give the Federal Parliament as much latitude in deciding whether trial by jury should be perpetuated as possible."[82] His proposal drew immediate criticism from Mr Wise (New South Wales) who thought that "the clause as it stands is a necessary safeguard to the individual liberty of the subject", protecting those subjects from a Federal Executive which might otherwise "tyrannously interfere with [their] liberties".[83] At this point Higgins entered the discussion, emphasising the need for flexibility in trial procedure. He thought that Parliament should retain the freedom to dispense with jury trials, as there would be contexts in which the likely ignorance or prejudice of jury members would make them unreliable.[84]

Mr Isaacs (Victoria) then intervened, suggesting that the debate between Glynn and Wise was in any case irrelevant. In Isaacs' view, the provision as drafted could be manipulated by the federal Parliament to ensure that particular offences did not trigger the requirement for a jury trial.[85] All Parliament need do, Isaacs suggested, was to provide that prosecution could be initiated by some procedure other than "indictment". Three New South Wales delegates—Wise, Mr O'Connor and Mr Barton—appeared perturbed at this suggested construction. Wise asked: "Do you think that public sentiment would ever tolerate the punishment of imprisonment for an offence which was not triable by indictment?".[86] (This suggests that Wise, at least, attributed to the public an understanding of "indictment" as being a necessary precursor to imprisonment.) Isaacs' response, that this was already a regular occurrence in Victoria, evidently astonished Barton and O'Connor.[87]

Glynn, viewing Isaacs' contribution as a distraction and taking no comfort from it, reiterated his proposal. A vote was taken, with 8 delegates voting in favour of Glynn's amendment and 17 rejecting it.[88] Of that majority it is simply impossible to know how many delegates agreed with Wise, that a guarantee of jury trial was desirable, and how many agreed with Isaacs, that the provision as drafted would have no rights-protective effect anyway. Nevertheless, McHugh J, the only judge relying upon the 31 January material in deciding Cheng, mentioned only Isaacs' view and suggests that it "may have been influential" upon the vote.[89] However, as no-one spoke in support of Isaacs, and several delegates spoke against him, there seems no basis for attributing any influence to him at all.

The provision again arose for discussion on 4 March 1898, barely a month after Glynn's amendment proposal was defeated. It was at this time that Barton proposed the amendment seized upon by the majority judgments in Cheng as confirming a sterile, procedural intended meaning for s 80. Barton, in his capacity as Chair of the Convention's Drafting Committee, moved that the original wording of the provision—"The trial of all indictable offences ... shall be by jury"—be amended to provide instead that "The trial on indictment of any offence ... shall be by jury".[90] The Drafting Committee, comprised of Barton, O'Connor and Mr Downer, presented dozens of proposed amendments during the final two weeks of the 1898 Melbourne Convention. These proposals represented the final drafting tweaks on a Convention Bill that was considered substantially settled by 3 March 1898.[91] Although Barton claimed that the object of the 4 March amendment was "simple", his explanation of it was somewhat convoluted. According to the majority in Cheng, the amendment was effected to allow the Parliament complete discretion over the availability of jury trials. However, on closer examination, there is another entirely plausible interpretation of Barton's proposal—one that rests more comfortably with the position that he and a majority of delegates had taken on 31 January 1898.

This alternative reading of Barton's proposal turns on his attributing some determinate meaning to the concept of indictment. We have already seen that Wise took this view, alluding on 31 January to the widespread expectation that imprisonment for any substantial period could only ever follow an indictment. Recall also that Barton and O'Connor, during that same debate, were astonished at the prospect of a one year prison sentence being imposed without a jury's verdict. That earlier debate provides the context for the Drafting Committee's proposed amendment on 4 March 1898. On our reading, Barton intended only to give Parliament the option of withholding jury trials within the discrete sphere of what he called "minor offences". He reinforced this qualification several times while explaining his proposal:

[The original draft] meant that, however small might be the offence created by any Commonwealth enactment, supposing an offence that should be punishable summarily, it would, nevertheless, have to be tried by jury ... The better way, however, is as we suggest, that where there is a power of punishing a minor offence summarily, it may be so punished summarily. But where an indictment has been brought the trial must be by jury.[92]

Apparently, the mischief that Barton foresaw was a situation where s 80 compelled a jury trial for some minor offences, by reason only of their historical classification as "indictable offences" at common law. He gave criminal contempt of court as an example. Historically this crime was classified as an indictable offence,[93] though by 1898 a practice had long since existed of allowing summary disposal in most instances.[94] Nevertheless, serious cases of contempt were still at that time being prosecuted on indictment before a jury.[95] Barton's insistence that "where an indictment has been brought the trial must be by jury"[96]—is readily explicable when one considers the distinction that he was drawing; between cases indeed justifying an indictment, because of their seriousness, and those where an entitlement to indictment might be asserted in spite of the minor nature of the offence.

Having heard Barton, Isaacs reiterated his view that the provision, properly construed, would not constrain Parliament in any kind of case: "The Parliament could, if it chose, say that murder was not to be an indictable offence".[97] The majority judgments in Cheng seem to accept this statement as indicative of the mood of the Convention[98] However, it seems clear that Isaacs' intention was to contest Barton's understanding of the way in which the provision would operate. Isaacs continued, emphasising what he saw as the essential subjectivity of terms like "indictable" and even "jury",[99] rendering the whole provision entirely amenable to manipulation by Parliament. Delegates who accepted Isaacs' construction would have seen little value in Barton's proposed amendment, and yet that amendment was duly passed without further discussion.

The Convention delegates had the opportunity, on 31 January 1898, to give the federal Parliament complete discretion over the availability of jury trials. Given that they did not grasp that opportunity then, we should be hesitant to view the considerably more ambiguous discussion on 4 March 1898 as indicating a change of mind. The oblique terms in which some of the contributions to the debate were couched, the repeated digressions and distractions from the core of proposals under discussion, and the silence of most of the delegates make confident predictions about the participants' intentions simply impossible. Nevertheless, the majority judgments in Cheng drew ready conclusions about those intentions while canvassing only part of the relevant debate.

Returning to Cheng, Gleeson CJ, Gummow and Hayne JJ further asserted that Quick and Garran's 1901 Annotated Constitution reinforces the Isaacs view of s 80.[100] Quick and Garran do quote Isaacs' statement about the Parliament being free to make murder a summary offence. However, when outlining the amendment effected on 4 March 1898, they state that its "object was to allow summary punishment of minor offences and contempts". It could be inferred from this that, in Quick and Garran's view, the carriage of Barton's amendment on 4 March reflected the Convention's acceptance of Barton's construction of s 80, not that of Isaacs. In any case, the fact that none of the other judgments in Cheng refer to this source supports the view that it is ultimately inconclusive.

The above discussion of these historical materials is not intended to show conclusively that the Cheng majority's reading of them is wrong, but merely that their chosen reading is not the only plausible reading. As Deane J intimated in the Incorporation Case, the Convention Debates can be a minefield of contradictions and ambiguities, prone to levels of indeterminacy and malleability that make them a dubious resource in the search for constitutional meaning. In some contexts, those debates may prove illuminating—their use in Cole v Whitfield[101] is perhaps an example. However, they will not be useful in all contexts, and the case of s 80 and its review in Cheng illustrates this.


The starting point in determining the Constitution's meaning has always been its text.[102] Looking at the text of s 80, the terms "trial on indictment" and "offence" may be viewed in either of two ways—as having some degree of fixed, objective meaning, or as being entirely subjective. In this sense, the meaning of s 80 is ambiguous, the text itself ordaining neither of these two plausible views. Historical material, including the Convention Debates, is one of the sources to which the Court now turns to resolve constitutional ambiguity.

The better view, we think, is that the Debates endorse a rights-protective interpretation of s 80, rather than the "procedural" construction upheld in Cheng. Nevertheless, giving the benefit of the doubt to the majority in Cheng and assuming that the debates are not determinative, other considerations must come into play in seeking to resolve the ambiguity in s 80's terms. The "status quo", despite its dubious lineage, weighs in favour of the procedural construction. However, there are strong countervailing considerations that tip the scales in favour of a rights protective interpretation.

One of these considerations was partially developed in the applicants' submissions to the High Court. It emerges when one considers the Court's relatively recent pronouncements concerning aspects of s 80's operation not canvassed in Kingswell. A series of cases decided in recent years has considered the obligations imposed by s 80 where there is a trial on indictment. In particular, in Brown v The Queen[103] and Cheatle v The Queen,[104] the issue was not the applicability of a trial by jury but rather the nature of such a trial where Parliament had seen fit to allow one. A majority in each case found that s 80 places rigid constraints on Parliament with regard to the nature of a trial by jury. Brown confirmed the necessity for a unanimous (rather than majority) verdict in the context of a jury trial. Cheatle confirmed the inability of an accused to waive a trial by jury when indicted for a Commonwealth offence. Both decisions confirm that essential aspects of the nature of a s 80 trial by jury are fixed according to objective standards and so cannot be manipulated by the Parliament.

It seems incongruous, then, in relation to the applicability of a s 80 trial by jury—that is, the circumstances in which the right accrues—that Parliament should be given free reign to manipulate that availability as it chooses. Intuitively, it seems self-defeating to construe a provision as creating strict, rights-protective requirements while simultaneously conceding Parliament's capacity to "opt out" of that strict regime. If we assume that, all else being equal, internally consistent interpretations of provisions are to be preferred,[105] it is incumbent on the Court either to justify the incongruity or to resolve it. In the latter event, the fact that the cases on the nature of jury trials are more recently decided, and have attracted much less criticism, than Kingswell and its antecedents must weigh in favour of this more robust interpretation.

A further consideration supporting a rights protective interpretation was emphasised by Gaudron J and Kirby J in Cheng, as it had been by Dixon and Evatt JJ in Lowenstein.[106] Put simply, it is that s 80 must do something. As Kirby J explained, when construed narrowly as in Kingswell, s 80 "might just as well not have been included in the Constitution."[107] Given that it was included, the Court is obliged, on ordinary principles of construction,[108] to give it some "real operative effect"[109]that is, some substantive consequence for the power of the organs of state. As Gaudron J points out, to construe the provision so that Parliament may evade its operation by deft manipulation of subjective terms "invite[s] the triumph of form over substance".[110] This is out of step with the Court's recent emphasis on substance tests in other contexts where the potential for evasion would otherwise exist.[111] Moreover, as s 80 appearsat least on its faceto be directed to protecting the individual, well established interpretative principles suggest that any ambiguity should be resolved in the individual's favour.[112]


A persuasive case can be made for a rights-protective interpretation of s 80. That this view did not prevail in Cheng was, we believe, largely a consequence of the majority's selective and superficial treatment of historical material. The result must dampen confidence in the Court's ability to utilise historical material objectively. Whether the failure of the majority judgments to probe deeper represents an oversight, or was influenced by a desire for a certain outcome, cannot be known. It can be commented, though, that the Court over the last few years has been steadily retreating from the interest in rights protection that characterised the Mason Court. The result in Cheng confirms the present Court's waning interest in the Constitution's role as a rights protective instrument.

[1] Cheng v The Queen [2000] HCA 53; (2000) 175 ALR 338; per Kirby J at [250] referring to the prevailing interpretation of s 80 of the Constitution.

[*] BA/LLB (ANU), Lecturer, Faculty of Law, Australian National University.

[**] BA/LLB (ANU), Visiting Fellow, Centre for International and Public Law, Australian National University.

[2] Cheng v The Queen and Chan v The Queen [2000] HCA 53; (2000) 175 ALR 338.

[3] Section 80 has been regarded as anything from a mere procedural provision—as Gleeson CJ, Gummow and Hayne JJ put it in Cheng at [29], a provision that simply "imposes various imperatives upon trials on indictment of offences against Commonwealth law"—through to a constitutional "guarantee" that protects the Australian people against any decision by Parliament to depart from fundamental aspects of the criminal trial by jury: see, for instance, the unanimous view of the High Court in Cheatle v The Queen (1993) 177 CLR 451. See more generally G Williams, Human Rights under the Australian Constitution (Melbourne, OUP, 1999), pp 103-109.

[4] Cheng [2000] HCA 53; (2000) 175 ALR 338; at [173] per Kirby J.

[5] [1985] HCA 72; (1985) 159 CLR 264.

[6] The joint judgement on Gibbs CJ, Wilson and Dawson JJ, with whom Mason J agreed on this point, affirmed the narrow interpretation of s 80.

[7] The particulars of the offence state that "[the applicants and others], between 1st day of November 1997 and the 9th day of November 1997 at Adelaide and other places in the said State, were knowingly concerned in the importation into Australia of a prohibited import to which Section 233B of the Customs Act 1901 applies, namely about 9350 grams of heroin, being not less than the commercial quantity.": see Cheng at [13], [66], [111] and [256].

[8] R v Chan (SC(SA) 3 December 1998, unreported).

[9] Ibid at 3.

[10] R v Cheng, R v Chan, R v Cheng [1999] SASC 175; (1999) 73 SASR 502.

[11] Ibid at [32] per Bleby J (Doyle CJ and Wicks J agreeing).

[12] Gleeson CJ, Gummow and Hayne JJ held that knowledge of the quantity of the prohibited substance imported, or attempted to be imported, is not required by the expression "knowingly concerned" in 233B(1).

[13] Cheng at [32].

[14] Cheng at [283].

[15] Cheng at [122].

[16] Cheng at [158].

[17] Cheng at [95].

[18] Ibid at [102].

[19] Ibid at [102]-[103].

[20] Ibid at [229].

[21] Cheng at [234].

[22] Cheng at [255].

[23] The other reasons cited in the judgment of Gleeson CJ, Gummow and Hayne JJ for refusing to consider the merits of the applicants' submissions were: that Kingswell had involved a challenge on identical grounds to the Customs Act provisions (see discussion at (c) below); that undesirable practical consequences would flow from holding those provisions invalid (see discussion below in text at nn 72-75); and that the drafter's intentions as reflected in historical material, together with existing authority on s 80's construction, militate against a rights-protective view: Cheng at [52]. The flaws in this reasoning are discussed below in text at nn 76-100.

[24] Cheng at [47]; see also at [103] per Gaudron J, who gave similar reasons for holding that there was no substantial miscarriage of justice such as to warrant quashing of the convictions. Justice Callinan at [284] thought the guilty pleas meant that "[n]o issue was raised as to any relevant circumstances of aggravation for resolution by a jury". However, other factors were more important to his conclusion that the appeal should be dismissed. Justice McHugh, addressing the significance of the guilty pleas, simply pointed to the fact that the applicants challenged the correctness of Kingswell, not R v Meaton.

[25] See footnote 7

[26] Cheng at [48].

[27] [1986] HCA 27; (1986) 160 CLR 359.

[28] Cheng at [236].

[29] Cheng at [209].

[30] Cheng at [236].

[31] Cheng at [237].

[32] Cheng at [50].

[33] Cheng at [57].

[34] Cheng at [52]-[54]. See discussion below in text at nn 76-100.

[35] Cheng at [143].

[36] [1986] HCA 11; (1986) 160 CLR 171.

[37] [1993] HCA 44; (1993) 177 CLR 541.

[38] [1999] HCA 50; (1999) 166 ALR 159.

[39] Cheng at [268].

[40] Cheng at [283].

[41] Cheng at [87].

[42] Cheng at [82].

[43] Cheng at [176].

[44] Cheng at [219].

[45] Cheng at [220].

[46] Cheng at [218].

[47] For example, see G Williams, Human Rights under the Australian Constitution (1999) at 107.

[48] [1928] HCA 18; (1928) 41 CLR 128 at 136 per Knox CJ, Isaacs, Gavan Duffy, and Powers JJ.

[49] Knox CJ et al said this interpretation was so self-evident that it "needs no exposition": ibid.

[50] AM Gleeson, "Judicial Legitimacy", an address to the Australian Bar Association Conference, New York, 2 July 2000.

[51] EH Levi, "The Nature of Judicial Reasoning" (1965) 32 University of Chicago Law Review 395, 409.

[52] This seems implicit in the discussion in John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417 regarding the factors to be weighed in considering a departure from earlier High Court authority: at 438 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ.

[53] [1938] HCA 10; (1938) 59 CLR 556.

[54] Ibid at 571 per Latham CJ and at 573 per Rich J.

[55] Starke J and McTiernan J.

[56] [1938] HCA 10; (1938) 59 CLR 556 at 582.

[57] Gleeson CJ, Gummow and Hayne JJ acknowledged these two authorities as being at the root of the procedural view of s 80: Cheng at [55] and [56]. McHugh J at [152] also made passing reference to this line of authority.

[58] Ibid at [103] per Gaudron J and at [108]-[109] per McHugh J.

[59] Ibid at [41].

[60] Cheng at [43]-[44].

[61] The competence, in the circumstances, of the appeals was confirmed by the South Australian Court of Criminal Appeal on appeal from Debelle J: R v Cheng [1999] SASC 175 at [8]- [11] per Bleby J, Doyle CJ and Wicks J agreeing.

[62] Cheng at [43].

[63] Ibid at [258].

[64] See: Proprietary Articles Trade Association v A-G (Can) [1931] AC 310 at 324 per Lord Atkin (for the Privy Council).

[65] R v Cheng, R v Chan, R v Cheng [1999] SASC 175; (1999) 73 SASR 502; at [8]-[11] per Bleby J, Doyle CJ and Wicks J agreeing; R v Frantzis (1996) 66 SASR 558; R v Howes (1971) 2 SASR 293; R v Forde [1923] 2 KB 400; see also R v Parsons [1998] 2 VR 478.

[66] Cheng at [56].

[67] Cheng at [144]-[145].

[68] Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 585 per Murphy J.

[69] R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 at 583 per Dixon and Evatt JJ.

[70] Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264 at 319 per Deane J.

[71] Recent examples include: Mabo v Queensland [No 2] (1992) 175 CLR 1, as to the existence and attributes of native title; Re Australian Education Union; Ex parte Victoria [1995] HCA 71; (1995) 184 CLR 188, as to the circumstances in which States enjoy immunity from Commonwealth law; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, as to when the protection of the implied freedom of political communication is attracted; John v FCT [1989] HCA 5; (1989) 166 CLR 417, as to when the Court will overrule its own decisions; and, Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, as to the availability of a defence of provocation.

[72] Cheng at [37].

[73] Cheng at [283].

[74] Re Wakim; Ex parte McNally (1999) 198 CLR 511.

[75] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1.

[76] Cheng at [176] and [227].

[77] New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482.

[78] Deane J insisted that it is morally objectionable that the framers' intentions should constrain the meaning which the Court gives to the Constitution's provisions, because the Constitution gained its authority from its acceptance by the people, not the framers: Ibid at 511. See also Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 167-168 and 171 per Deane J.

[79] New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 at 511.

[80] Official Record of the Debates of the Australasian Federal Convention, vol I, Sydney 1891, at 958.

[81] Official Record of the Debates of the Australasian Federal Convention, vol III, Adelaide 1897, at 990-1.

[82] Official Record of the Debates of the Australasian Federal Convention, vol IV, Melbourne 1898, at 350.

[83] Ibid.

[84] Ibid at 351-2.

[85] Ibid at 352.

[86] Ibid.

[87] Ibid.

[88] Ibid at 353.

[89] Cheng [2000] HCA 53; (2000) 175 ALR 338; at [134].

[90] Official Record of the Debates of the Australasian Federal Convention, vol V, Melbourne 1898, at 1894.

[91] J Quick and R Garran, Annotated Constitution of the Australian Commonwealth (1995 rep) at 194.

[92] Official Record of the Debates of the Australasian Federal Convention, vol V, Melbourne 1898, at 1894.

[93] Hawkins (1824) Pleas of the Crown, 8th edn, Book 1, Ch 6, s 8, vol I, p 63; Book 2, Ch 25, s 4, vol II, p 289. Also Skipworth's Case (1873) LR 9 QB 230 at 233.

[94] Summary disposal of these contempt matters is sometimes said to have evolved from the necessity promptly to reaffirm the authority of the court after an incident: R v Taylor; Ex p Roach [1951] HCA 22; (1951) 82 CLR 587. Others have viewed the evolution of the summary procedure as an historical accident or error: Fox (1927) The History of Contempt of Court, Clarendon Press, Oxford; Miller (1989) Contempt of Court, 2nd edn, Clarendon Press, Oxford, p 48.

[95] For example, Tibbits and Windust [1902] 1 KB 77, where each defendant was indicted, found guilty by a jury and sentenced to six weeks' imprisonment.

[96] Official Record of the Debates of the Australasian Federal Convention, vol V, Melbourne 1898, at 1894 (emphasis added).

[97] Ibid at 1895.

[98] Cheng per Gleeson CJ, Gummow and Hayne JJ at [53]-[54] and McHugh J at [137].

[99] Isaacs suggests that Parliament could, if it wanted, "[say] that the jury should be composed of two persons, or of only one person.": Official Record of the Debates of the Australasian Federal Convention, vol V, Melbourne 1898, at 1895. Interestingly, the High Court has already rejected the possibility of Parliament's tampering with the composition or operation of a jury: Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541.

[100] J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1995 rep) at 808.

[101] [1988] HCA 18; (1988) 165 CLR 360.

[102] D Dawson, "Intention and the Constitution—Whose Intent?" (1990) 6 Aust Bar Rev 93; see also: Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329 at 358-60 per O'Connor J; Attorney-General (Cth; Ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 17 per Barwick CJ.

[103] [1986] HCA 11; (1986) 160 CLR 171.

[104] [1993] HCA 44; (1993) 177 CLR 541.

[105] See R Dworkin, Law's Empire (1986) at 225-7.

[106] R v Federal Court of Bankruptcy; Ex Parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556.

[107] Cheng at [176].

[108] The "presumption against surplusage" is discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Hayne JJ. In the constitutional context, see: Victoria v Commonwealth and Hayden (AAP Case) [1975] HCA 52; 134 CLR 338 at 354 per Barwick CJ. The Court has always viewed principles of statutory construction as generally applicable in the constitutional context: Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54; (1920) 28 CLR 129 at 148-150 per Knox CJ, Isaacs, Rich and Starke JJ and at 161-2 per Higgins J.

[109] R v Federal Court of Bankruptcy; Ex Parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 at 582 per Dixon and Evatt JJ.

[110] Cheng at [85].

[111] For example: Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 399-400; Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 488 and 469; Philip Morris Ltd v Commissioner of Business Franchises (Vic) [1989] HCA 38; (1989) 167 CLR 399 at 433 and 449-50; Ngo Ngo Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 at 491 and 498.

[112] See, eg: Bank of NSW v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 349-350 per Dixon J; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305 per Mason CJ, Deane and Gaudron JJ.

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