George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

With respect, Senator Leyonhjelm, I do not think this goes to the independence of the judiciary at all. The whole concept of the independence of the judiciary depends upon members of the judicial branch of government—that is, judges—being able to conduct hearings and trials, in this case, according to law without interference. It does not go to the question of whether or not there are limitations placed by the legislature on the way in which the law operates. That the legislature has imposed a particular limitation on what may be done in a court of law is not an interference with the independence of the judiciary. If that were so then, to give a very prosaic example, every act which sets out the law of evidence would be considered to be a limitation on the independence of the judiciary, because nothing is more integral to the processes of a court than the law governing the reception for admissibility of evidence. Yet legislatures, including this parliament, routinely codify the law of evidence, just as they codify various aspects of civil and criminal procedure. So this is not an issue of the independence of the judiciary at all merely because it says that the courts are required to conduct proceedings before them in a particular way according to particularly legislated principles. That is my answer to that observation, Senator.

But as to your first question as to whether there is a history, I am not in a position to inform you whether courts dealing with other legislation have exercised a discretion in one way or another. Every case depends on its own particular facts. But I would counsel against drawing inferences from the fact that certain courts may have resolved certain cases in a certain way if there is a particular, established or uniform judicial attitude to the question.