Rizeq v The State of Western Australia

The applicant, John Rizeq, sought bail pending the determination of his appeal against conviction. The respondent, the State of Western Australia, opposed the application. The matter came before the High Court of Australia.

The primary legal issue before the Court was whether the applicant had demonstrated exceptional circumstances warranting the grant of bail. This required consideration of the established test for bail pending appeal, which ordinarily requires strong grounds for concluding the appeal will be allowed and that the sentence would be substantially served by the time the appeal is heard. The applicant conceded he did not meet the second limb of this test, as a substantial portion of his sentence would remain unserved. Therefore, the Court was asked to determine if the strength of the appeal, coupled with the applicant's personal circumstances, constituted exceptional circumstances.

The applicant argued that his appeal had strong prospects of success because upholding his conviction would necessitate a change in established High Court authority. He contended that the conviction was based on a State law applied in federal jurisdiction, which, according to long-standing authority, should not occur of its own force. He further argued that if a State law is applied via a federal law, such as section 79 of the Judiciary Act, it operates as a federal law, creating a surrogate federal offence analogous to those considered in cases like *Pinkstone* and *Mok*. This, he submitted, would attract section 80 of the Constitution, requiring a unanimous verdict, which was not obtained. The respondent countered that the applicant's argument was novel and stretched existing authorities, arguing that section 79 of the Judiciary Act did not create offences and that State laws could apply in federal jurisdiction in certain contexts, citing *Pedersen v Young* and *Solomons v District Court of New South Wales*. The respondent also argued that the grant of special leave, based on the novelty of the constitutional question, did not equate to strong prospects of success, and that the applicant's personal circumstances were not exceptional.

The Court granted bail to the applicant, John Rizeq, on terms to be agreed between the parties.