Section 80 and the Territories: Vunilagi v The Queen [2023] HCA 24
9.10.2023
Is a trial on indictment for an offence contrary to a law of a self-governing territory a ‘law of the Commonwealth’ for the purpose of s 80 of the Constitution? To the extent that R v Bernasconi (1915) (Bernasconi) has been understood to decide that the power in s 122 is not subject to the requirements of s 80, will a case likely need to involve a trial on indictment of an offence enacted by the Commonwealth Parliament under s 122 for a majority to decide whether Bernasconi should be distinguished or re-opened?
These questions were considered in Vunilagi v The Queen [2023] HCA 24. Paragraph references below are to the judgment.
Background
The appellant was convicted following a trial by judge alone (Murrell CJ) in the Supreme Court of the Australian Capital Territory of seven counts of sexual intercourse without consent and one count of an act of indecency without consent contrary to ss 54 and 60 of the Crimes Act 1900 (ACT). The order for a trial by judge alone, which was opposed by the appellant and the Crown, was made pursuant to s 68BA(3) of the Supreme Court Act 1933 (ACT) (SCA) (now repealed), which was enacted in the context of the COVID-19 pandemic and the requirements of public health emergency declarations. (See at [1]-[2], [8]-[9] (Kiefel CJ, Gleeson and Jagot JJ (plurality)), [60] (Gageler J), [79]-[80] (Gordon and Steward JJ)).
The ACT Court of Appeal dismissed the appellant’s appeal in which he argued that s 68BA was invalid. The appeal to the High Court concerned whether s 68BA was invalid because it:
(1) infringed the Kable principle; or
(2) was inconsistent with s 80 of the Constitution.
In four separate judgments, the High Court unanimously dismissed the appeal.
Although the primary focus of this article is on the Court’s reasoning regarding s 80, the Court’s disposition of the Kable ground is also considered below.
The Kable ground
The Kable principle is that ‘because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid’ (at [12] (plurality); see also [82] (Gordon and Steward JJ)).
The ACTSC is capable of exercising the judicial power of the Commonwealth in the exercise of jurisdiction conferred on it by laws made by Commonwealth Parliament. It was not in issue, and each of their Honours accepted, that the Kable principle applied in the ACT. (See at [12] (plurality); [60] (Gageler J); [82] (Gordon and Steward JJ); [139], [174] (Edelman J).)
Relevantly, s 68BA(3) of the SCA provided that the court may order a trial by judge alone if satisfied that the order ‘will ensure the orderly and expeditious discharge of the business of the court’ and ‘is otherwise in the interests of justice’. Before making this order, s 68BA(4) required the court to give the parties ‘written notice of the proposed order’ and, in that notice, ‘invite the parties to make submissions about the proposed order within 7 days after receiving the notice’. (See at [5] (plurality), [77] (Gordon and Steward), [136] (Edelman J).)
The appellant asserted that the ‘constitutional flaw’ with the ‘gatekeeping function’ given to a judge under s 68BA(4) ‘lay in the power to select arbitrarily from a relevantly identical class of accused persons to whom the s 68BA(3) criteria were prima facie applicable’ (at [15]-[16] (plurality), [141] (Edelman J)).
The Court held that, properly construed, s 68BA did not infringe the Kable principle (at [17]-[24] (plurality), [60] (Gageler J), [85]-[92] (Gordon and Steward JJ), [130], [142]-[145] (Edelman J)). Kiefel CJ, Gleeson and Jagot JJ, with whom Gageler J agreed, held that by characterising the function under s 68BA(4) as a ‘gateway’ one, the appellant incorrectly construed it as separate from (and in some respects as governing) the exercise of power under s 68BA(3). Properly construed, ss 68BA(3)-(4) operated together, with s 68BA(4) being facilitative of and ancillary to s 68BA(3)), and their function was more in the nature of case management enabling the Court to manage its criminal caseload during a public health emergency whilst ensuring that the interests of justice were served. The evident purpose of s 68BA(4) was to provide procedural fairness, which conforms to the Kable principle. (See at [17], [19], [23].)
Gordon and Steward JJ held that s 68BA contained a single operative power for ordering a trial by judge alone, and there was no separate ‘gatekeeping’ or ‘screening’ power. The giving of notice and hearing of submissions whether express (under s 68BA(4)) or implied (in the absence of s 68BA(4)) were ‘necessary for the power in s 68BA(3) to conform with the Kable principle’. (See at [85], [88].)
Edelman J considered that it was incorrect to submit that s 68BA provided ‘no discernible criteria’ to determine whether an order for a judge alone trial would be proposed, because the ACT Legislative Assembly must be taken to have intended that cases would be considered for proposed judge alone trials by reference to case management considerations. Section 68BA(4) is based on a presupposition that the ACTSC will consider in each case whether to propose to order a judge alone trial. (See at [130], [140]-[142], [145].)
Section 80
Section 80 of the Constitution (which appears in Ch III) provides relevantly that ‘[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury’. Section 122 of the Constitution provides relevantly that the Commonwealth Parliament ‘may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth’.
In 1909, the area which is now the ACT was surrendered by NSW and accepted as a territory by the Commonwealth. From 1911 until 1989, the ACT was administered by the Commonwealth directly under ss 61 and 122 of the Constitution. During that period, the Crimes Act 1900 (NSW) (NSW Crimes Act) was picked up and applied as a surrogate federal law.
From 11 May 1989, the ACT was established as a body politic under the Crown by a Commonwealth Act, namely s 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). From 28 May 1992, the ACT Legislative Assembly enacted the Crimes Legislation (Status and Citation) Act 1992 (ACT) (Status and Citation Act), providing that the NSW Crimes Act 'as amended and in force immediately before the commencement of’ the Status and Citation Act, ‘shall be taken to be, for all purposes, a law made by the Legislative Assembly as if the provisions … had been re-enacted’, and may be cited as the Crimes Act 1900 (ACT). The expression ‘as if’ invoked a statutory fiction to achieve the substantive legal effect of re-enactment of the text of the NSW Crimes Act as then applied in the ACT without repeating that text.
Each member of the Court observed that insofar as it was said in Bernasconi that Ch III does not apply to the territories, this is ‘now considered to be incorrect’ ([54] (plurality)); that this ‘no longer accords with the doctrine of the Court’ ([62] (Gageler J)); that this ‘was based on a now discredited view’ ([96] (Gordon and Steward JJ)); and that this was ‘unprincipled and contrary to the stream of authority and precedent in this Court’ ([170] (Edelman J)).
To the extent that Bernasconi had been understood to decide that the requirements of s 80 of the Constitution do not apply to s 122, the Court (with the exception of Edelman J) considered that it was not necessary to distinguish or re-open Bernasconi because the laws of self-governing territories are not the laws of the Commonwealth Parliament (at [55] (plurality), [62] (Gageler J) and [98] (Gordon and Steward JJ)). Edelman J held that the logically anterior question to interpreting the meaning of the words of s 80 was whether s 80 was applicable at all, and that Bernasconi was manifestly wrong, that it was contrary to the stream of authority and precedent, and that it ought be re-opened and its reasoning rejected (at [132], [151], [172], [178], [220]). Edelman J also held that as ss 54 and 60 of the Crimes Act 1900 (ACT) were not laws of the Commonwealth (at least from 28 May 1992 when the Status and Citation Act was enacted – see [2] below), it was not necessary to consider whether a similar approach could re-explain the result in Bernasconi (at [222]-[223]).
The key matters held by the Court were as follows:
‘law of the Commonwealth’ in s 80 of the Constitution refers to laws made by the Commonwealth Parliament under its legislative powers, and not those of the ACT Legislative Assembly (at [51], [55]-[57] (plurality); [66] (Gageler J); [98], [126] (Gordon and Steward JJ); [133], [218]-[219] (Edelman J)). The converse would appear to result in the laws of a territory legislature prevailing over inconsistent State laws pursuant to s 109 of the Constitution, and the Commonwealth potentially being obliged to execute and administer the laws of a territory legislature pursuant to s 61 of the Constitution (at [52] (plurality) and [127] (Gordon and Steward JJ); see also [207] (Edelman J)); and
at least from 28 May 1992 when the Status and Citation Act was enacted, the impugned provisions of the Crimes Act 1900 (ACT), which applied to the appellant, were laws of the ACT Legislative Assembly and not laws of the Commonwealth (at [50] (plurality); [73] (Gageler J); [120] (Gordon and Steward JJ); [209], [219], [222] (Edelman J)).
Consequences
Accordingly, a law of a self-governing territory legislature is not a ‘law of the Commonwealth’ for the purpose of s 80 of the Constitution.
However, a question remains as to whether the outcome in Bernasconi can continue to be accepted on the basis that, as a matter of construction, ‘any law of the Commonwealth’ in s 80 of the Constitution should be read as if they were followed by the words ‘other than a law made under s 122’. As Gageler J said, ‘[t]hat question would arise for consideration were we concerned with the trial on indictment of an offence created by a Commonwealth law enacted by the Commonwealth Parliament under s 122 of the Constitution. As will be seen, we are not’ (at [62]). To similar effect, the plurality observed that ‘regardless of’ the decision in Bernasconi, ‘by granting territories self‑government the Commonwealth created new bodies politic the laws of which are distinct from the laws of the Commonwealth Parliament’ (at [55]). In the words of Gordon and Steward JJ, ‘[t]he threshold question is whether the offences for which the appellant was tried and convicted – ss 54 and 60 of the Crimes Act 1900 (ACT) – fell within the meaning of "offence[s] against any law of the Commonwealth’ in s 80 of the Constitution. As will be explained, they did not. It is unnecessary for this Court to consider distinguishing or reopening Bernasconi’ (at [98]).
Consequently, to the extent that Bernasconi has been understood to decide that the power in s 122 is not subject to the requirements of s 80, it is likely that a case will need to arise involving a trial on indictment of an offence enacted by the Commonwealth Parliament under s 122 for a majority to consider whether Bernasconi ought to be distinguished or re-opened. Given that this would appear to involve the Commonwealth Parliament enacting an indictable offence provision that is not applicable consistently throughout Australia, such a vehicle may not be immediately forthcoming.
Bharan Narula is a barrister at Wardell Chambers, Sydney.
Suggested citation: Bharan Narula, ‘Section 80 and the Territories: Vunilagi v The Queen [2023] HCA 24’ (9 October 2023) <https://www.auspublaw.org/blog/2023/10/section-80-and-the-territories-vunilagi-v-the-queen-2023-hca-24>