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Case [2023] HCAB 4 19 May 2023

Appeal

Constitutional Validity

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High Court Bulletin

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High Court of Australia Library

[2023] HCAB 4 (19 May 2023)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court's original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused

1: Summary of New Entries

2: Cases Handed Down

Case	Title
Attorney-General (Cth) v Huynh & Ors	Constitutional Law
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor	Courts and Judges
BA v The King	Criminal Law
BDO v The Queen	Criminal Law

3: Cases Reserved

Case	Title
Bromley v The King	Criminal Law
Lang v The Queen	Criminal Law
McNamara v The King	Evidence
AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors	Immigration
Qantas Airways Limited & Anor v Transport Workers Union of Australia	Industrial Law

4: Original Jurisdiction

Case	Title
Rehmat & Mehar Pty Ltd & Anor v Hortle	Constitutional Law

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Tesseract International Pty Ltd v Pascale Construction Pty Ltd	Arbitration
Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks (ABN 13 051 694 963) & Anor	Constitutional Law
The King v Rohan (a pseudonym)	Criminal Law

7: Cases Not Proceeding or Vacated

8: Special Leave Refused

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the May 2023 sittings.

Constitutional Law

Attorney-General (Cth) v Huynh & Ors

S78/2022: [2023] HCA 13

Date of judgment: 10 May 2023

Coram: Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ

Catchwords:

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – State laws applicable to offenders convicted of Commonwealth offences – Where s 78(1) of Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act") permitted convicted person to apply to Supreme Court of New South Wales for inquiry into conviction or sentence – Where s 79(1)(a) of CAR Act permitted judge to direct an inquiry take place – Where s 79(1)(b) of CAR Act permitted judge to refer whole case to Court of Criminal Appeal to be dealt with as an appeal – Where convicted person applying under s 78(1) was convicted of Commonwealth offence – Whether ss 78 and 79 applied of own force to person convicted of Commonwealth offence – Whether s 68(1) of Judiciary Act 1903 (Cth) operated to apply ss 78(1), 79(1)(a) and 79(1)(b) of CAR Act to person convicted of Commonwealth offence – Whether ss 78(1) and 79(1)(b) of CAR Act could be applied independently of s 79(1)(a) without different legal operation – Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly conferred on judge of State court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: High Court Bulletin [2023] HCAB 4
Case: [2023] HCAB 4
Decision Date

CaseChat Overview and Summary

The High Court of Australia recently handed down several judgments in May 2023. In Attorney-General (Cth) v Huynh, the Court considered whether certain sections of the Crimes (Appeal and Review) Act 2001 (NSW) applied to a person convicted of a Commonwealth offence. The Court found that those sections did not apply to such a person, as they impermissibly conferred functions on a State court judge without consent and imposed administrative duties on a State statutory office without State legislative approval. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Court considered whether a judge's former role as Commonwealth Director of Public Prosecutions created a reasonable apprehension of bias in a visa cancellation case. The Court found that the judge's impartiality was not reasonably apprehended, and the appeal was dismissed. In BA v The King, the Court considered whether a co-tenant who had ceased paying rent had lawful authority to enter an apartment and assault the complainant. The Court found that the appellant had lawful authority to enter the premises and dismissed the appeal. In BDO v The Queen, the Court considered whether there was reasonable doubt as to whether the appellant was over 14 years of age at the time of the alleged offences. The Court found that there was reasonable doubt and allowed the appeal with respect to certain counts.

Orders