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Common(wealth) Knowledge #83: Cases we missed in 2023

Wrapping up the year that was in law and government coverage on 6 News.

2023 has been a busy year for Common(wealth) Knowledge, with the first full year of the series. It’s also been a very busy year for the High Court of Australia, and there are many cases that we didn’t get to cover this year. But, continuing our annual tradition, it’s time to look back on some honourable mentions.

6 News has extensively covered the ‘Big Three’ immigration/citizenship cases of Benbrika v Minister for Home Affairs, Jones v Commonwealth, and NZYQ v Minister for Immigration, with all three discussing the separation of powers.

Whereas those three cases dealt with judicial checks on executive power, Davis v Minister for Immigration considered legislative checks on executive power.

Section 351 of the Migration Act 1958 (Cth) allows the Minister for Immigration to override decisions by the Administrative Appeal Tribunal and make decisions that are more favourable towards immigrants seeking to challenge a decision made against them by the Tribunal.

However, the Minister for Immigration authorised departmental officers to review Section 351 applications and determine the outcome, with only cases involving “unique or exceptional circumstances’ being heard by the Minister personally.

The applicant sought to challenge this policy, arguing that it went beyond the powers conferred under Section 351, which was a legislative check on executive power.

The High Court, with only Justice Steward dissenting, agreed with Davis. They focused on sub-section (3), which stated that this power must be exercised personally.

Justices Gordon and Jagot, in separate judgments, mentioned the Carltona principle from Carltona Ltd v Commissioner of Works [1943], which allows senior government officials to delegate tasks to lower government officials.

However, an express provision requiring a personal decision overrode any such discussion, and Justice Gordon pointed out that, even when tasks like this could be delegated, officials can compile summaries and evaluations for the Minister, but cannot exercise the decision-making power.

Chief Justice Kiefel and Justices Gageler and Gleeson, the leading judgment of the majority, came to similar conclusions. They referred to Section 61 of the Australian Constitution, which states that the purpose of the executive branch is the “execution and maintenance … of the laws of the Commonwealth,” and that because Parliament expressly prohibited officials from using this power, doing so went beyond the ‘laws of the Commonwealth.’

After being made to pay $3,181.82 under the ‘Goods and Services Tax’ to the Commonwealth government following the auctioning of a government car, Hornsby Shire Council brought a case against the Commonwealth government, arguing that this was a “tax on property … belonging to the State of New South Wales, which is prohibited under Section 114 of the Constitution.

As the Constitution does not refer to local government bodies, state governments have complete legislative authority over them, under Sections 106-108 of the Constitution. Check out Common(wealth) Knowledge #62 for more.

The High Court disagreed., agreeing with the Commonwealth and the States that ‘notional GST,’ where local government entities pay GST in return for government funding, is not a tax for the purposes of Section 114, which focused on non-consensual taxation between State and Commonwealth governments.

Although Commonwealth funding could be pulled if a local government entity refused to pay notional GST, the arrangement between the Commonwealth and the States began as a voluntary agreement before being implemented into law.

The High Court, which handed down a unanimous judgment, concluded by saying that “much of the factual basis relied upon for the Council’s argument departed from the agreed facts of the special case and could not even be justified as a permissible inference from those agreed facts.”

The concept of Territory rights is one that this series has touched on before, in Common(wealth) Knowledge #3 and #33. This case revisited that issue, considering how the Constitution applied to the Territories.

As explored in those two articles, the High Court has held that constitutional protections and rights don’t apply to the Territories, and the self-governing Territories, the ACT and NT, only have legislative powers that the Commonwealth government gives them, per Section 122.

In this case, the ACT government amended the Supreme Court Act 1933 (ACT) to allow judges to suspend jury trials for the duration of the Covid-19 pandemic, over health and safety concerns.

Section 80 of the Constitution protects the right to trial by jury for indictable offences, but only if Parliament chooses to make an offence an indictable one. However, judicial precedent states that this does not apply to the Territories, due to Section 122.

The High Court upheld the legitimacy of Section 68BA of the Supreme Court Act 1933 (ACT), which the amendment had inserted into the Act, relying on Section 122.

The court was also asked to consider if it violated the separation of powers, under Kable v Director of Public Prosecutions (NSW) (1996), with Parliament ordering the court to act in a certain way that violated the rights of the Territory’s residents.

Justices Gordon and Steward emphasised that it was a discretionary power. Section 68BA(3) only allowed orders to suspend a jury trial in a case if the judge was satisfied that it “would ensure the orderly and expeditious discharge of the business of the Court and that it was in the interests of justice.”

They agreed that although those purposes were phrased in a way to simply ensure that trials were processed quickly, a question which other jurisdictions also grappled with, they cited Chief Justice Latham in Newell v The King (1936), who said that trial by jury is a key right, not merely a procedural issue.

However, Section 68BA(4) required the judge to inform the parties in writing of their decision, and granted the parties 7 days to make submissions to the court about why a trial by jury was necessary. They concluded that this provision balanced the right to trial by jury with the need for procedural efficiency during the pandemic, and so did not violate the right to trial by jury.

A discretionary power that balances the trial by jury and pandemic-related concerns therefore did not violate Kable.

Of these three cases, Vunilagi is the one most likely to be brought up again in 2024. In Yunupingu v Commonwealth [2023], the Full Court of the Federal Court of Australia ruled that constitutional rights and protections can apply to native title in the Northern Territory, and the High Court will hear the Commonwealth government’s appeal next year.

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Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.

Newell v The King (1936) 55 CLR 707; [1936] HCA 50.


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