“A Puny Thing Indeed”1—Cheng V the Queen and the Constitutional Right to Trial by Jury
| Author | Amelia Simpson,Mary Wood |
| Published date | 01 March 2001 |
| Date | 01 March 2001 |
| DOI | 10.1177/0067205X0102900105 |
| Subject Matter | Comment |
COMMENT
"A PUNY THING INDEED"1—CHENG V THE QUEEN AND
THE CONSTITUTIONAL RIGHT TO TRIAL BY JURY
Amelia Simpson* and Mary Wood**
INTRODUCTION
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 described3 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 Queen5—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
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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 Hi gh 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) 159 CLR 264.
96 Federal Law Review Volume 29
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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 Court6 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.
THE ISSUES RAISED IN CHENG
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 respec t 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
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6 The joint judgement on Gibbs CJ, Wilson and Dawson JJ, with whom Mason J agreed on
this point, affirmed the n arrow interpretation of s 80.
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