Justice Heydon’s 2020 submission

Before the 2020 summit, there was some controversy about the role of former judges in the governance stream. But what about current judges? For all the usual boring reasons, sitting judges have to keep well away from public discussions about law reforms, especially ones that might raise constitutional problems. That may have proved frustrating for Justice Heydon.

Today, the High Court made a terse contribution to a major current debate in sentencing law: whether and how to distinguish between different drugs when it comes to sentencing possessors and traffickers. Back in the olden days, courts used to routinely distinguish between soft and hard drugs (later adding a ‘middle’ category.) Hard drugs (e.g. heroin) merited a higher sentence, due to their harmfulness, than soft drugs (e.g. cannabis.) But the kids these days are using new drugs that make these distinctions complex. In particular, where does ‘ecstasy’ (as they call it) fit in? In the 1990s, judges mulled over whether the ubiquitous party drug was all that much worse than dope. But, this decade, with nice kids dying and gangland wars and all that, judges came to see ecstasy as ’emerging as a very significant community problem.’

Two years ago, a five-judge bench of the Victorian Court of Appeal responded to all this confusion by ruling that the Victorian drug statute – where the maximum sentences are all about quantities of drugs and their commercial nature – barred courts from considering the general harmfulness of a particular drug at all. Last year, it applied the same reasoning to the Commonwealth’s drug statute, dismissing an ecstasy possessor’s complaint that his sentencing judge had declared that “In general terms the courts equate ecstasy, in terms of sentencing, as being similar to heroin.” The High Court, worried about an apparent variation amongst the states in how they sentence federal drug offenders, took the case. Today, a majority ruled that judges neither could nor should try to make a comparison between different sorts of drug. However, they left unresolved the question of whether sentencing judges can still take account of distinguishing features of a particular drug as part of their (sigh) ‘instinctive synthesis.’

Justice Heydon wrote a separate judgment and took a different, nastier line: there was no need for the High Court to make any ruling at all, because the defendant hadn’t put any evidence on the record that could show that ecstasy was less harmful than heroin (and judges, despite their repeated observations about the horror of heroin, couldn’t take judicial notice of such a fact.) This is a daft observation, because the defendant knew nothing about the sentencing judge’s approach until the sentence was brought down and couldn’t attack it in the Court of Appeal because, by then, that court had turned its back on the whole idea of thinking about the nature of particular drugs at alll. At the special leave hearing, the defendant’s lawyer made it clear that what was sought was a correction of the Court of Appeal’s general approach and then a remitter back to the court for the issue of the general harmfulness of ecstasy to be authoritatively resolved. Heydon’s complaint was that the defendant hadn’t identified ‘any evidence… he was in a position to call before the court having the responsibility of re-sentencing him.’ This ignores the defendant’s purposes in the High Court – which disclaimed any settling of the factual question in that court – and the body of evidence that is common currency in such cases, notably various experts and reports that the Fitzroy Legal Centre put to the Court of Appeal in its original 2006 decision. It’s certainly true that there was some doubt that the defendant would win on this factual argument, but Heydon had no justification for his repeated claims that the defendant couldn”t possibly win on that point.

Nevertheless, this dubious approach provided Heydon with an opportunity to make some pointed observations about the proper role of the courts:

Counsel for the appellant put forward learned and forceful submissions; but that is not enough to make the controversy about them anything other than moot and academic. The appellant’s argument invited the Court to answer a question which was hypothetical only. It solicited an advisory opinion. The appellant has no interest in the outcome of his construction arguments, because he will not gain any advantage from their success beyond “righting a wrong, upholding a principle or winning a contest” and he will suffer no disadvantage from their failure beyond, perhaps, “a sense of grievance”. The appellant raised a controversy, but he failed to allege “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination”. Without that sharpening, it is inappropriate to seek to resolve the issues of statutory construction raised by the appellant.

It’s hard not to see the relevance of these remarks to the burning question of the appropriateness of courts making non-binding declarations of incompatibility with human rights. That being said, Heydon J didn’t draw the link to the Charter, unlike Kirby in Alinta. On the other hand, while Heydon footnoted some of the better known cases on this topic, he mysteriously left Alinta out of the list. It’s hard to see how that case – where the Commonwealth funded both sides’ lawyers after all the other parties dropped out – can be seen as assuring a ‘concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination’.

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