Vunilagi v The Queen

[2023] HCA 24

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

SIMON VUNILAGI  APPELLANT

AND

THE QUEEN & ANOR  RESPONDENTS

Vunilagi v The Queen

[2023] HCA 24

Date of Hearing: 8 & 9 February 2023
Date of Judgment: 8 August 2023

C13/2022

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Australian Capital Territory

Representation

B W Walker SC with J S Stellios for the appellant (instructed by Hugo Law Group)

K L McCann with K V Lee for the first respondent (instructed by Office of the Director of Public Prosecutions (ACT))

P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, and H Younan SC with A M Hammond for the second respondent (instructed by Government Solicitor for the Australian Capital Territory)

S P Donaghue KC, Solicitor General of the Commonwealth, with B K Lim and C Ernst for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

N Christrup SC, Solicitor-General for the Northern Territory, with L S Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Vunilagi v The Queen

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in Territory courts – Institutional integrity of Territory courts – Where s 68BA inserted into Supreme Court Act 1933 (ACT) in response to COVID-19 pandemic – Where s 68BA(3) allowed Supreme Court of Australian Capital Territory ("ACT") to make order for trial by judge alone for previously excluded indictable offences if satisfied order would ensure orderly and expeditious discharge of Court business and in interests of justice – Where s 68BA(4) required judge to provide written notice of proposed order under s 68BA(3) – Where no requirement for election or consent by accused – Where Justice of Supreme Court proposed to and did order trial by judge alone despite appellant's submissions opposing order – Where appellant tried and convicted under ss 54 and 60 of Crimes Act 1900 (ACT) – Whether s 68BA(4) substantially impaired institutional integrity of Territory courts as function conferred incompatible with position of Territory court as repository of federal jurisdiction.

Constitutional law (Cth) – Trial by jury – Where prior to self-government Crimes Act 1900 (NSW) picked up and applied in ACT as surrogate federal law – Where following self-government Commonwealth law provided Crimes Act 1900 (NSW) shall be taken to be enacted by ACT Legislative Assembly and may be amended and repealed – Where subsequent ACT law provided Crimes Act 1900 (NSW) to be treated as an Act passed by ACT Legislative Assembly – Where ss 54 and 60 of Crimes Act 1900 (ACT) were indictable offences – Whether ss 54 and 60 were laws of the Commonwealth within meaning of s 80 of Constitution – Whether "any law of the Commonwealth" within meaning of s 80 of Constitution includes laws of ACT Legislative Assembly as "subordinate legislature" – Whether miscarriage of justice as trial on indictment was not by jury contrary to s 80 of Constitution – Whether R v Bernasconi (1915) 19 CLR 629 should be re-opened or overruled.

Words and phrases – "amend or repeal", "case management", "Ch III court", "COVID‑19 emergency period", "gatekeeping function", "independent body politic", "institutional integrity", "interests of justice", "judge alone trial", "Kable principle", "law of the Commonwealth", "overruling constitutional precedent", "peace, order and good government of the Territory", "picked up and applied", "plenary power", "proposed order", "prudential approach", "self-government", "statutory fiction", "subordinate legislature", "taken to be an enactment", "trial on indictment".

Constitution, Ch III, ss 80, 111, 122.
ACT Self-Government (Consequential Provisions) Act 1988 (Cth), s 12.
Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 7, 8, 22, 34.

Crimes Act 1900 (ACT), ss 54, 60.
Crimes Legislation (Status and Citation) Act 1992 (ACT), s 3.
Supreme Court Act 1933 (ACT), ss 68A, 68B, 68BA, 116.

1. KIEFEL CJ, GLEESON AND JAGOT JJ.   The appellant, with three co-accused, was charged with offences against ss 54 and 60 of the Crimes Act 1900 (ACT) ("the Crimes Act (ACT)"). His trial in the Supreme Court of the Australian Capital Territory was listed to commence on 7 September 2020. On 13 August 2020, Murrell CJ made an order under s 68BA(3) of the Supreme Court Act 1933 (ACT) that the proceeding be tried by judge alone. Following that trial, her Honour found the appellant guilty and convicted him of seven counts of sexual intercourse without consent, contrary to s 54, and one count of an act of indecency without consent, contrary to s 60[1].

   [1]R v Vunilagi [No 2] [2020] ACTSC 274.

2. The background to the enactment of s 68BA and the order made by Murrell CJ was the onset of the COVID‑19 pandemic and the requirements of public health emergency declarations, which had an impact on jury trials. In late March 2020, the Supreme Court directed that jury trials would proceed in limited numbers and subject to social distancing requirements[2], but subsequently directed that jury trials would not proceed until further notice[3].

   [2]Supreme Court of the Australian Capital Territory, Practice Direction 1 of 2020: Special Arrangements in response to COVID 19, 23 March 2020.

   [3]Supreme Court of the Australian Capital Territory, Practice Direction 1 of 2020: Special Arrangements in response to COVID 19, 7 April 2020 at [23].

3. In April 2020, the Legislative Assembly of the Australian Capital Territory enacted the COVID-19 Emergency Response Act 2020 (ACT) ("the Emergency Response Act"), which inserted provisions that had the effect of extending the circumstances in which a criminal trial could be heard by a judge alone. It commenced on 8 April 2020.

4. Prior to the commencement of the Emergency Response Act, s 68A of the Supreme Court Act provided that criminal proceedings were to be tried by jury, except as otherwise provided by Pt 7 of that Act. Section 68B provided for an offence, other than an excluded offence, to be tried by a judge alone if the accused person elected in writing to be tried in that manner. The Emergency Response Act inserted a provision[4] that applied the section to excluded offences.

   [4]COVID-19 Emergency Response Act 2020 (ACT), Sch 1 [1.65]; Supreme Court Act 1933 (ACT), s 68B(3A).

5. Relevant to this appeal, the Emergency Response Act added s 68BA, which was in part in these terms:

   "(1)This section applies to a criminal proceeding against an accused person for an offence against a territory law if the trial is to be conducted, in whole or in part, during the COVID-19 emergency period.

   (2)      To remove any doubt, this section applies—

   (a)      to a criminal proceeding—

   (i) that begins before, on or after the commencement day; and

   (ii) for an excluded offence within the meaning of section 68B(4); and

   (b)whether or not an election has been made by the accused person under section 68B, including before the commencement day.

   (3)The court may order that the proceeding will be tried by judge alone if satisfied the order—

   (a)will ensure the orderly and expeditious discharge of the business of the court; and

   (b)      is otherwise in the interests of justice.

   (4)Before making an order under subsection (3), the court must—

   (a)give the parties to the proceeding written notice of the proposed order; and

   (b)in the notice, invite the parties to make submissions about the proposed order within 7 days after receiving the notice."

6. The "COVID-19 emergency period" was the period from 16 March 2020 and ending on 31 December 2020[5].

   [5]Supreme Court Act 1933 (ACT), s 68BA(5) (Republication No 59).

7. The Explanatory Statement to the Emergency Response Act gave as two of the purposes of s 68BA: the protection of the right of a person charged with a criminal offence to be tried without unreasonable delay; and avoiding putting members of a jury at unnecessary risk[6]. It noted as important that the discretion in s 68BA could only be exercised once the parties to the proceedings had the opportunity to consider whether the trial should be by judge alone and make any submissions to the Court[7]. That was clearly enough a reference to the purpose of s 68BA(4).

   [6]Australian Capital Territory, Legislative Assembly, COVID-19 Emergency Response Bill 2020, Explanatory Statement at 19.

   [7]Australian Capital Territory, Legislative Assembly, COVID-19 Emergency Response Bill 2020, Explanatory Statement at 18.

8. On 9 July 2020, s 68BA was repealed[8], but by s 116[9] of the Supreme Court Act the Court could continue to make an order under s 68BA(3) if a notice had been given under s 68BA(4) prior to the repeal of the provision.

   [8]COVID-19 Emergency Response Legislation Amendment Act 2020 (No 2) (ACT), s 36.

   [9]Inserted by COVID-19 Emergency Response Legislation Amendment Act 2020 (No 2) (ACT), s 37.

9. On 18 June 2020, notice was given to the appellant and his co-accused (under s 68BA(4)), who were then invited to make submissions because Murrell CJ proposed to make an order under s 68BA(3). The appellant made submissions and opposed the order. By the time of the hearing, his co-accused supported the making of the order. Her Honour found that it was in the interests of justice that the trial proceed before a judge alone[10] and, as noted at the outset of these reasons, made an order accordingly. In relation to the matter stated in s 68BA(3)(a), her Honour found that the trial could not proceed as a jury trial in accordance with social distancing requirements given, in particular, the number of legal representatives. The length of the trial rendered greater the likelihood of delays being caused as a result of COVID‑19 testing requirements and constraints. Her Honour considered that it was in the interests of the complainant, the witnesses and the accused that the matter be resolved expeditiously, noting that three accused were detained in custody.

   [10]R v Vunilagi (2020) 354 FLR 452 at 456-457 [27]-[31], 457-458 [40].

10. Following his conviction, the appellant appealed to the Court of Appeal. He argued that his trial miscarried on the basis that s 68BA was invalid. The Court of Appeal dismissed the appeal[11]. The grounds for the appeal to this Court are that the Court of Appeal was wrong to hold: (1) that s 68BA, in its continuing operation, did not contravene the limitation derived from this Court's decision in Kable v Director of Public Prosecutions (NSW)[12]; and (2) that the section is not inconsistent with the requirement in s 80 of the Constitution that the appellant's mode of trial be by jury.

    [11]Vunilagi v The Queen (2021) 17 ACTLR 72.

    [12](1996) 189 CLR 51.

11. Neither ground is made out. The appeal should be dismissed.

    Ground 1: The Kable principle

12. It is not in issue that laws enacted by the Legislative Assembly for the Australian Capital Territory which affect the functions and processes of the courts are subject to the Kable principle[13]. The principle for which Kable stands, being the same for the courts of a Territory as it is with respect to courts of the States, 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"[14].

    [13]North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569.

    [14]Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 424 [40] (footnotes omitted). See also Kuczborski v Queensland (2014) 254 CLR 51 at 98 [139]; Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 245-246 [55].

13. The appellant's case is that the function given to the Supreme Court by s 68BA(4) impaired its institutional integrity by departing to a significant degree from the processes which characterise the exercise of judicial power[15]. As noted above, the appellant focuses only upon what was involved in the process prescribed by sub-s (4). The appellant does not challenge the process undertaken under s 68BA(3).

    [15]Kuczborski v Queensland (2014) 254 CLR 51 at 98 [140].

14. The appellant accepts that s 68BA(3) required conditions in the nature of jurisdictional facts to be satisfied. The discretion which then arose under that provision involved a regular exercise of judicial power that was to be discharged judicially. The appellant accepts that it involved the usual incidents of the judicial process, including an open and public enquiry, procedural fairness and the giving of reasons.

15. The constitutional flaw which the appellant identifies in s 68BA, as relevant to the Kable principle, was in the "gatekeeping function" given to a judge under s 68BA(4) to determine the persons, from a relevantly identical class, to be subject to the exercise of the judicial function under sub-s (3). By contrast to the function under sub-s (3), the application of the gatekeeping function in sub-s (4) was inscrutable, the appellant submits. It exposed some, but not all, persons to the risk of losing a jury trial. This latter submission appears to be based upon an incorrect premise that s 80 confers something in the nature of a personal right to a trial by jury[16], but this may be put to one side.

    [16]Brown v The Queen (1986) 160 CLR 171 at 197, 202, 214.

16. The differential treatment of persons, which the appellant says is contrary to the precept of "equal justice", is said to be brought about because the gatekeeping function of s 68BA(4) was relevantly arbitrary. It was arbitrary because there was no duty to consider whether a notice should be given and the Supreme Court was not required to give reasons for proposing an order under sub‑s (3). There were no criteria and no discernible test which might be applied by the Court. In this regard it cannot be said that those criteria were supplied by s 68BA(3).

17. It may first be observed that in characterising the function under s 68BA(4) as a "gatekeeping" one, the appellant construes it as separate from, and in some respects as governing, the exercise of power under sub-s (3). Neither approach to the construction of s 68BA is correct.

18. Section 68BA was general in its application. By s 68BA(1) and (2) it applied to all criminal proceedings where the trial was to be conducted during the COVID‑19 emergency period. Section 68BA(3) was central to the section and its purpose. It provided the power for the Supreme Court to determine if a criminal proceeding was to be tried by a judge alone. It was expressly subject to satisfaction of the two conditions that such an order: (a) would ensure the orderly and expeditious discharge of the business of the Court; and (b) was otherwise in the interests of justice. Section 68BA(4) added a further condition to the exercise of that power. It required that before an order for a judge alone trial was made: (a) a notice be given to the parties of the proposed order; and (b) the parties be invited to make submissions about the proposed order.

19. Properly construed, sub-ss (3) and (4) operated together. Far from operating as a "gatekeeping" function, sub-s (4) is to be understood as facilitative of and ancillary to the power which was to be exercised under sub-s (3). The function of the sub-sections was more in the nature of case management. The appellant does not deny this. By these means the Court was able to manage its criminal caseload during a public health emergency whilst at the same time ensuring that the interests of justice were served.

20. The second error made by the appellant as to the construction of s 68BA concerns the scheme of the section and the place of sub-s (4) in it. The appellant's assumption, that sub-s (4) encompassed a decision‑making process about who was to be the recipient of a notice under sub-s (4) and therefore the subject of a decision under sub-s (3), finds no support in the text of sub-s (4). The scheme of s 68BA was to provide the Supreme Court with the power to order that a criminal proceeding be tried by judge alone if the conditions in s 68BA(3) were met. It left it to the Supreme Court to propose which proceedings might be the subject of those considerations and therefore the notice under sub-s (4). It is unremarkable that a court might act on its own motion in such circumstances.

21. The appellant understandably makes no challenge to Murrell CJ's proposal that his and his co-accused's proceedings be considered under the sub-s (3) power or to the process leading to it. That process may well have involved considering the requirements of sub-s (3). However, sub-s (4) has nothing to say about such considerations or that decision.

22. The function involved in 68BA(4) was not one to consider which criminal proceedings might be a candidate for an order under sub-s (3). It did not involve any assessment or evaluation of that kind. Its sole criterion was the circumstance that an order under sub-s (3) was proposed. As soon as such a proposal was made the Court came under a duty to provide the notice and the invitation referred to in sub-s (4).

23. The evident purpose of s 68BA(4), as the Explanatory Statement confirms, was to provide procedural fairness to any person who might be affected if the order proposed to be made under sub-s (3) was made. It ensured that no accused person would have their mode of trial altered without first being given notice of that proposal and the opportunity to be heard with respect to it. The appellant accepts that procedural fairness is required if a court's procedure can be said to conform to the Kable principle.

24. No reasons can be said to have been required in connection with the giving of a notice under s 68BA(4). There was no decision made under s 68BA(4) in respect of which reasons would be required. The reason for the giving of the notice is apparent from the terms of sub-s (4) itself – it is that an order under s 68BA(3) was proposed.

    Ground 2: Section 80 of the Constitution

25. Section 80 of the Constitution, which appears in Ch III, provides in relevant part that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury ...". The offences in question here were against ss 54 and 60 of the Crimes Act (ACT). The first question which arises with respect to s 80 of the Constitution, the appellant accepts, is whether they are laws of the Commonwealth. The appellant also raises a second and alternative question. It is whether the reference in s 80 to "any law of the Commonwealth" includes a law made by the legislature of a territory. The answer to both questions is "no".

    Background

26. The geographic area which is the Australian Capital Territory was surrendered by the State of New South Wales and accepted as a territory by the Commonwealth in 1909[17]. The language of the statutes effecting its establishment reflects that of s 111 of the Constitution.

    [17]Seat of Government Surrender Act 1909 (NSW), s 6; Seat of Government Acceptance Act 1909 (Cth), s 3.

27. Section 122 of the Constitution provides that the Commonwealth Parliament "may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth ...". The power conferred by s 122 has been described as a plenary power, which is sufficiently wide both to enable the passing of laws providing for the direct administration of a territory, and to create an autonomous government for such a territory[18].

    [18]Berwick Ltd v Gray (1976) 133 CLR 603 at 607.

1. Prior to 1989 and self‑government, the Australian Capital Territory was subject to laws which applied to it as a territory by force of Commonwealth statute. That was the case respecting the provisions of the Crimes Act 1900 (NSW)[19] ("the Crimes Act (NSW)"), which was picked up and applied as a surrogate federal law[20]. It was then true to say that offences under the New South Wales statute were laws of the Commonwealth for the purpose of s 80.

   [19]Seat of Government Acceptance Act 1909 (Cth), s 6(1); Seat of Government (Administration) Act 1910 (Cth), s 4.

   [20]Pinkstone v The Queen (2004) 219 CLR 444 at 456 [29], 458‑459 [38]‑[41]; Mok v Director of Public Prosecutions (NSW) (2016) 257 CLR 402 at 431 [84], 435 [99].

2. Section 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Self-Government Act") established the Territory as a body politic under the Crown[21]. It created a Legislative Assembly for the Territory and, by s 22, gave it "power to make laws for the peace, order and good government of the Territory". Sections 1 and 2 of the Self‑Government Act commenced on 6 December 1988, the day of Royal Assent. The remaining provisions were to commence on a day to be proclaimed[22]. Section 7 was proclaimed to commence on 11 May 1989[23]. Section 34, to which attention will now be directed, was proclaimed to commence on the same day[24].

   [21]There followed the transfer of responsibility for courts of the Australian Capital Territory (ACT Supreme Court (Transfer) Act 1992 (Cth)) and the creation of a government service (Public Sector Management Act 1994 (ACT)).

   [22]Australian Capital Territory (Self‑Government) Act 1988 (Cth), s 2(2).

   [23]Commonwealth of Australia Gazette, S164, 10 May 1989.

   [24]Commonwealth of Australia Gazette, S164, 10 May 1989. Cf s 34(8), which commenced on a different day.

3. Section 34 of the Self-Government Act was headed "Certain laws converted into enactments". Section 34(4) provided that:

   "A law (other than a law of the Commonwealth) that, immediately before the commencing day:

   (a)      was in force in the Territory; and

   (b)was an Ordinance, an Act of the Parliament of New South Wales or an Imperial Act;

   shall be taken to be an enactment, and may be amended or repealed accordingly."

4. A "law" was defined in s 34(1) to include "a provision of a law". An "enactment" was defined by s 3 to mean: "(a) a law (however described or entitled) made by the Assembly under this Act; or (b) a law, or part of a law, that is an enactment because of section 34".

5. Section 34(5) provided that sub-s (4) did not apply to a law specified in Sch 3 to the Self-Government Act. At that time the Crimes Act (NSW) was listed in Sch 3 Pt 2 as an Act of the Parliament of New South Wales in force in the Territory. The ACT Self-Government (Consequential Provisions) Act 1988 (Cth) provided[25] that on 1 July 1990 any laws specified in s 12(5) of that Act which had not been omitted from Sch 3 to the Self-Government Act were now omitted from that schedule "by force of this subsection and shall be taken to be enactments and may be amended or repealed accordingly". From that point s 34(4) took effect with respect to the provisions of the Crimes Act (NSW).

   [25]ACT Self-Government (Consequential Provisions) Act 1988 (Cth), s 12(2).

6. The Legislative Assembly of the Australian Capital Territory also enacted the Crimes Legislation (Status and Citation) Act 1992 (ACT) ("the Status and Citation Act"), the source for which was clearly enough s 22 of the Self-Government Act. Its long title read:

   "An Act to provide for the Crimes Act, 1900 of the State of New South Wales in its application in the Territory to be treated as an Act passed by the Legislative Assembly and to be cited accordingly, and for related purposes".

7. Section 3(1) of the Status and Citation Act provided:

   "The applied State Act shall be taken to be, for all purposes, a law made by the Legislative Assembly as if the provisions of the applied State Act had been re-enacted in an Act passed by the Assembly and taking effect on the commencement of this Act."

8. The "applied State Act" was defined to mean "the Crimes Act, 1900 of the State of New South Wales in its application in the Territory as amended and in force immediately before the commencement of this Act"[26]. The Status and Citation Act was repealed in 1999[27] but was continued in its effect[28].

   [26]Crimes Legislation (Status and Citation) Act 1992 (ACT), s 2.

   [27]Law Reform (Miscellaneous Provisions) Act 1999 (ACT), s 5(1), Sch 2.

   [28]Law Reform (Miscellaneous Provisions) Act 1999 (ACT), s 5(2); Interpretation Act 1967 (ACT), s 42; Legislation Act 2001 (ACT), ss 88, 301(2).

9. Apart from a provision respecting the re‑numbering of the offence provisions[29], amendments which s 34(4) contemplated were made to ss 54 and 60 by statutes enacted by the Legislative Assembly of the Territory in 2008[30], 2011[31] and 2022[32]. The 2008 and 2011 amendments respectively altered the fault element of "recklessness" for each of the offences under ss 54 and 60. The 2011 and 2022 amendments concerned the penalty for the offences. In 2013, the definition of "sexual intercourse" in s 50(1) of the Crimes Act (ACT) was amended in a manner that affected the scope of s 54. The amending Act was the Crimes Legislation Amendment Act 2013 (ACT). Additionally, the Court was informed by the second respondent, the Attorney-General for the Australian Capital Territory, that there were other amendments to the Crimes Act (ACT) at earlier points, but the Court was not referred to them.

   [29]Crimes Legislation Amendment Act 2001 (ACT), s 43.

   [30]Justice and Community Safety Legislation Amendment Act 2008 (No 3) (ACT), Sch 1 [1.11]-[1.13], which amended s 54 of the Crimes Act 1900 (ACT).

   [31]Crimes Legislation Amendment Act 2011 (ACT), ss 5-7 and Criminal Proceedings Legislation Amendment Act 2011 (ACT), ss 4-5, which amended s 60 of the Crimes Act 1900 (ACT).

   [32]Family Violence Legislation Amendment Act 2022 (ACT), ss 32-33 (which amended s 54 of the Crimes Act 1900 (ACT)) and ss 40-41 (which amended s 60 of the Crimes Act 1900 (ACT)).

   The appellant's primary contention

10. Given the terms of s 34(4) and the enactment of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth) it could be argued that from 1 July 1990 the Crimes Act (NSW) became a statute of the Australian Capital Territory. The appellant's primary contention is that s 34(4) did not alter the source of authority for the continued operation of the Crimes Act (NSW). Sections 54 and 60 of that Act continued to be given direct force by the Commonwealth Parliament pursuant to s 122 of the Constitution.

11. The appellant relies on what was said in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[33] and Eastman v The Queen[34] to support this contention. Mr Eastman was charged with and convicted of an offence against s 18 of the Crimes Act (NSW). In Ex parte Eastman[35], Gummow and Hayne JJ said that the criminal liability in respect of which he was tried and convicted "owed its existence to the laws made by the [Commonwealth] Parliament". Similar statements were made in Eastman v The Queen[36]. The two decisions, the appellant says, identify the Commonwealth law as the source of the offence.

    [33](1999) 200 CLR 322.

    [34](2000) 203 CLR 1.

    [35]Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 342 [44].

    [36](2000) 203 CLR 1 at 51 [159], 65 [196].

12. The offence for which Mr Eastman was convicted was committed in January 1989[37]. It was no doubt correct to say that at that time ss 54 and 60 had their direct source in Commonwealth law. At that time, the substantive provisions of the Self‑Government Act, including s 34, had not come into effect. And as earlier mentioned, s 34 did not operate with respect to the Crimes Act (NSW) until 1 July 1990.

    [37]Eastman v The Queen (2000) 203 CLR 1 at 19 [51].

13. More to the point was what their Honours had to say about what occurred after s 34 took effect. Earlier in the passage cited by the appellant[38], Gummow and Hayne JJ spoke of the offence provision being "transmuted into an enactment subject to amendment or repeal by the Legislative Assembly for the Australian Capital Territory" and said that "[t]his state of affairs was brought about by the operation of s 34 of [the Self‑Government Act]". Later in their reasons, they spoke of the effect of the identical phrase in s 34(2) of the Self‑Government Act[39], that a specified law "shall be taken to be an enactment, and may be amended or repealed accordingly". Their Honours said that the phrase was directed to the Assembly and had the substantive operation of conferring on an existing law applying in the Territory "the status of a law made by the Assembly" and that it thereby became an enactment.

    [38]Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 342 [44].

    [39]Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 351 [75].

14. Far from supporting the proposition for which the appellant contends, the reasons in Ex parte Eastman provide support for the view that the Crimes Act (NSW) became a statute of the Legislative Assembly of the Territory from 1 July 1990. Those reasons would also appear to provide an answer to the contrary of the appellant's assumption, made with respect to the balance of his argument, that because s 34(4) is a deeming provision a law does not become an enactment of the Assembly. It is merely capable of being amended or repealed.

15. It will be recalled that ss 54 and 60 had been the subject of amendment with respect to an element of the offences. The appellant, however, submits that for the character of a law to cease to operate as a law of the Commonwealth Parliament it was necessary that the Legislative Assembly had repealed it. If the Assembly merely amended a provision, s 34(4) continued to operate as the legislative force for the provision, albeit with an altered legal meaning picking up textual changes made. In substance, the alterations to ss 54 and 60 were only amendments.

16. The appellant submits that s 34(4) uses the words "amend" and "repeal" in their ordinary sense. This is said to provide a means of "drawing the line" between the continuing authority of the Commonwealth Parliament and the new separate authority of the Legislative Assembly. The appellant relies on what was said in Attorney‑General (WA) v Marquet[40], namely that the central meaning of "amend" is to alter the legal meaning of an Act or provision, short of entirely rescinding it; and the central meaning of "repeal" is to rescind the Act or provision in question.

    [40](2003) 217 CLR 545 at 564 [46].

17. The distinction which the appellant seeks to draw is not as clear as he suggests. In Marquet[41] itself, it was acknowledged that the words "amend" and "repeal" may be used in ways in which there appears to be some overlapping in their meanings. In the case to which reference was made in Marquet in that regard, Kartinyeri v The Commonwealth[42], it was said that to speak of a clear distinction between amendment and repeal is to assume a false dichotomy. Given that the ordinary usage of amendment of a statute means to alter its legal meaning, it may take the form of and include a repeal. By way of illustration, if a section is deleted it can be said that it is repealed whilst the statute itself has been amended.

    [41]Attorney‑General (WA) v Marquet (2003) 217 CLR 545 at 564 [46].

    [42](1998) 195 CLR 337 at 375-376 [66]-[68].

18. The real difficulty in applying the ordinary meaning of "amend" and "repeal" to s 34(4) is that it does not involve a process of construction. Nothing in the text or context of s 34(4) suggests that it is intended to operate differently on laws which might generally be said to amend a law and those which repeal it. The words "and may be amended or repealed accordingly" appearing after "shall be taken to be an enactment" may be better understood to convey a single idea about the changes which may be made to a statute which the Legislative Assembly of the Territory is to treat as its own.

19. The position for which the appellant contends also produces a rather strange result. Taking the 2008 and 2011 amendments as examples, the appellant would say that ss 54 and 60 of the Crimes Act (ACT) remain sourced in Commonwealth law albeit that the text is changed. This appears to comprehend a law which is mixed or hybrid. The appellant does not explain how this state of affairs was to come about by force of s 122 of the Constitution.

20. In any event it is not necessary to determine the question as to whether the offences were Commonwealth or Territory laws on the basis of whether the Crimes Act (NSW) became an enactment of the Territory Legislative Assembly on 1 July 1990 or whether later amendments had that effect. It is not necessary because the first question is answered by the Status and Citation Act. It puts the matter beyond doubt.

21. The Status and Citation Act notably dealt with just one topic: the Crimes Act (NSW). Its long title stated that, in its application in the Territory, the Crimes Act (NSW) was to be treated as an Act passed by the Legislative Assembly and cited accordingly. Section 3(1) provided that the Crimes Act (NSW) shall be taken "for all purposes" to be a law made by the Assembly as if its provisions "had been re‑enacted in an Act passed by the Assembly". In its terms s 3(1) effected an implied repeal of the Crimes Act (NSW) and re-enactment of the law as a law of the Territory. Its intention is clear.

22. Contrary to the appellant's contention, the Status and Citation Act dealt with more than overcoming cumbersome citation conventions. So much is evident from its terms. The relevant extrinsic materials confirm that the Status and Citation Act "asserts the status of the Crimes Act as a law of the ACT by providing that the Crimes Act is to be treated as an Act passed by the Legislative Assembly"[43]. A note which later appeared in the Statute Law Amendment Act 2001 (No 2) (ACT) also recorded that "[t]he Crimes Act 1900 became an Act of the Legislative Assembly because of the [Status and Citation Act]"[44].

    [43]Australian Capital Territory, Legislative Assembly, Crimes Legislation (Status and Citation) Bill 1992, Explanatory Memorandum at 2.

    [44]Statute Law Amendment Act 2001 (No 2) (ACT), Sch 2 [2.77].

23. It may be concluded that at all times relevant to this appeal ss 54 and 60 of the Crimes Act (ACT) were laws of the Australian Capital Territory and that was the case even though s 34(4) had its source in Commonwealth law.

    The appellant's secondary contention

24. The appellant nevertheless contends that s 80 continues to apply. He submits that "any law of the Commonwealth" in s 80 includes a law made by a subordinate legislature of a territory. The contention denies that the term "law of the Commonwealth" refers to a law made by the Commonwealth Parliament itself under the legislative powers of the Commonwealth[45]. In Re Colina; Ex parte Torney[46], this was regarded as having been settled by a long line of authority.

    [45]Re Colina; Ex parte Torney (1999) 200 CLR 386 at 397 [25].

    [46](1999) 200 CLR 386 at 397 [25].

25. The contention would also appear to have the rather startling consequence that a law passed by a territory legislature would prevail over inconsistent State laws, by reason of s 109 of the Constitution. Additionally, s 61 of the Constitution might be thought to impose an obligation on the part of the Commonwealth to execute and administer laws of a separate and independent body politic.

26. The appellant's contention is directly contrary to the decision of this Court in R v Bernasconi[47] so far as it concerns s 80. In that case the accused was tried without a jury of an offence which, by ordinance of the Legislative Council of the Territory of British New Guinea, was made a law applying to that Territory. Objection was taken to the mode of trial on account of s 80 of the Constitution. The first question, identified by Griffith CJ[48], was whether the offence for which Mr Bernasconi was convicted was an offence against a law of the Commonwealth. The ultimate question[49] was whether s 80 had any application to the local laws of a territory, whether enacted by the Commonwealth Parliament or by a subordinate legislature set up by it. The answer was that it did not[50].

    [47](1915) 19 CLR 629.

    [48]R v Bernasconi (1915) 19 CLR 629 at 632.

    [49]R v Bernasconi (1915) 19 CLR 629 at 634.

    [50]R v Bernasconi (1915) 19 CLR 629 at 635, 637-638, 640. See also Spratt v Hermes (1965) 114 CLR 226 at 275.

27. It was also said in Bernasconi[51] that Ch III of the Constitution has no application to territories, a view which is now considered to be incorrect. This is not relevant for present purposes. So far as concerns s 80, Bernasconi has been understood to decide that, regardless of whether the power in s 122 of the Constitution "is exercised directly or through a subordinate legislature"[52], it is not restricted by the requirement in s 80 that trial be by way of jury.

    [51]R v Bernasconi (1915) 19 CLR 629 at 635.

    [52]Spratt v Hermes (1965) 114 CLR 226 at 244, see also 275. See also Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 332-333 [9]; Northern Territory v GPAO (1999) 196 CLR 553 at 616 [169].

28. For the appellant to have any prospect of success with respect to his secondary contention it would therefore be necessary for him to obtain leave to re‑open Bernasconi and have it overruled. The appellant may face some difficulty in doing so given that, as long ago as 1965 in Spratt v Hermes[53], the decision in Bernasconi was considered to be one of long standing which should not be disturbed. Consideration should in any event not be given to whether to re-visit Bernasconi given the prudential approach of this Court to providing no more than is necessary by way of answer to constitutional questions[54]. It is not necessary to do so because, regardless of the decision in Bernasconi, the appellant's contention cannot be reconciled with the proposition, for which there is good authority, that by granting territories self‑government the Commonwealth created new bodies politic the laws of which are distinct from the laws of the Commonwealth Parliament.

    [53](1965) 114 CLR 226 at 244, 275.

    [54]Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219 at 247-249 [56]-[60].

29. In Capital Duplicators Pty Ltd v Australian Capital Territory[55], Brennan, Deane and Toohey JJ[56] said that the Legislative Assembly of the Territory "has been erected to exercise not the Parliament's powers but its own, being powers of the same nature as those vested in the Parliament". Their Honours observed[57] that the Commonwealth Parliament had no powers under the Self-Government Act of disallowance of a duty imposed by the Legislative Assembly and no power to repeal or amend the enactment.

    [55](1992) 177 CLR 248 at 282.

    [56]Gaudron J agreeing at 284.

    [57]Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 283.

30. The view expressed in Capital Duplicators was further explained in Svikart v Stewart[58]. There Mason CJ, Deane, Dawson and McHugh JJ said that a legislature created to confer self‑government upon a territory "must be regarded as a body separate from the Commonwealth Parliament, so that the exercise of its legislative power, although derived from the Commonwealth Parliament, is not an exercise of the Parliament's legislative power"[59]. More recently this explanation was applied in North Australian Aboriginal Justice Agency Ltd v Northern Territory[60], where Gageler J spoke of the exercise of "a distinct legislative power" by the Legislative Assembly of the Northern Territory[61] and Keane J referred to the law‑making power conferred by the equivalent to the Self‑Government Act as "an independent and unqualified law‑making power"[62].

    [58](1994) 181 CLR 548.

    [59]Svikart v Stewart (1994) 181 CLR 548 at 562. See also Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 352-353 [79]‑[80].

    [60](2015) 256 CLR 569.

    [61]North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 613 [105].

    [62]North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 633 [171].

    Orders

1. The appeal should be dismissed.

2. GAGELER J.   The appeal must be dismissed. The consequence is that the appellant's conviction for offences against the Crimes Act 1900 (ACT) following his trial on indictment in the Supreme Court of the Australian Capital Territory before Murrell CJ sitting without a jury must stand.

3. On the question whether the now repealed s 68BA of the Supreme Court Act 1933 (ACT) as inserted by the COVID-19 Emergency Response Act 2020 (ACT) infringed the limitation derived from Ch III of the Constitution commonly associated with Kable v Director of Public Prosecutions (NSW)[63], I agree with Kiefel CJ, Gleeson and Jagot JJ that it did not and have nothing to add to their Honours' reasoning in support of that answer.

   [63](1996) 189 CLR 51.

4. On the question whether that provision, and the trial before Murrell CJ sitting without a jury, were inconsistent with the requirement of s 80 of the Constitution that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury", I agree with Kiefel CJ, Gleeson and Jagot JJ that they were not. My reasoning to that answer can be expressed without undue repetition of anything their Honours have written.

5. The acceptance in North Australian Aboriginal Legal Aid Service Inc v Bradley[64] of the proposition that courts created under s 122 of the Constitution can answer the description of "such other courts as [the Commonwealth Parliament] invests with federal jurisdiction" in s 71 of the Constitution, so as to be subject to the Kable limitation, is sufficient to demonstrate that the statement of Griffith CJ in R v Bernasconi[65] that "the power conferred by sec 122 is not restricted by the provisions of Chapter III of the Constitution, whether the power is exercised directly or through a subordinate legislature", no longer accords with the doctrine of the Court. Whether the outcome in Bernasconi can nevertheless continue to be accepted on the basis that the case can be taken to establish that "as a matter of construction, the words 'any law of the Commonwealth' in s 80 should be read as if they were followed by the words 'other than a law made under s 122'"[66] need not be addressed. That 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.

   [64](2004) 218 CLR 146 at 162-163 [27]-[28].

   [65](1915) 19 CLR 629 at 635.

   [66]See Northern Territory v GPAO (1999) 196 CLR 553 at 590-591 [88], quoting Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 605-606. See also Spratt v Hermes (1965) 114 CLR 226 at 244.

6. The question of any inconsistency of s 68BA of the Supreme Court Act as applied to the trial in the Supreme Court of the Australian Capital Territory of offences against the Crimes Act 1900 (ACT) with the requirement of s 80 of the Constitution that is raised in the present case can and should be seen to turn on the correct contemporary answer to a somewhat narrower and logically antecedent question expressly left unaddressed by Griffith CJ in Bernasconi. That question, in the language then used by Griffith CJ[67], is "whether a law passed by the legislature of a territory under the authority of a law passed by the Parliament of the Commonwealth can properly be regarded as a law of the Commonwealth in any sense".

   [67](1915) 19 CLR 629 at 634.

7. The appellant properly accepts that "law of the Commonwealth" in s 80 can have no different meaning from the meaning it has elsewhere in the Constitution. Throughout the Constitution, including in ss 61 and 109 as in s 80, the expression is used consistently to refer to legislation enacted by the Commonwealth Parliament[68]. On the theory that legislation once enacted operates as "the expression of the continuing will of the Legislature"[69], the expression encompasses delegated legislation the force and effect of which are dependent on legislation enacted by the Commonwealth Parliament.

   [68]See The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 431. See also Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 547-548.

   [69]Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 102.

8. In the specific context of s 80's reference to "any offence against any law of the Commonwealth", the expression "law of the Commonwealth" refers to the legislation enacted by the Commonwealth Parliament (and delegated Commonwealth legislation subordinate to legislation enacted by the Commonwealth Parliament) which has created, and which continues at the time of trial to sustain, criminal liability for the offence to be tried on indictment. The expression does not refer to the ultimate source of power to enact that legislation.

9. Capital Duplicators Pty Ltd v Australian Capital Territory[70] established that the power conferred on the Legislative Assembly by s 22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Self-Government Act") "to make laws for the peace, order and good government of the Territory", being a legislative power conferred in the exercise by the Commonwealth Parliament of its power under s 122 of the Constitution to "make laws for the government of any territory", is a legislative power distinct from and of the same "plenary" nature as that vested in the Commonwealth Parliament itself. A law enacted by the Legislative Assembly in the exercise of that power is not, in any sense, a law of the Commonwealth; it is a law of the Territory.

   [70](1992) 177 CLR 248 at 281. See also Svikart v Stewart (1994) 181 CLR 548 at 562; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 613 [105]-[106], 633-634 [170]-[171].

10. Section 34(4) of the Self-Government Act, in referring to a law which is "taken to be an enactment" being able to "be amended or repealed accordingly", confirms the capacity of the Legislative Assembly to amend or repeal the law in the exercise of the power conferred by s 22. Section 34(4) is not a separate source of legislative power. Rather, s 34(4) is an amplification of the power conferred by s 22.

11. There is no need for present purposes to canvass the view taken by Gummow and Hayne JJ in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[71] as to the status of a provision of the Crimes Act 1900 (NSW) as applied by s 6 of the Seat of Government Acceptance Act 1909 (Cth) and s 4 of the Seat of Government (Administration) Act 1910 (Cth) in its application to an offence found to have been committed on 10 January 1989. There is no need to examine the status of any provision of the Crimes Act 1900 (NSW) in application to offences committed before it was "taken to be an enactment" by force of s 34(4) of the Self-Government Act through the operation of s 12(2) of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth) taking effect from 1 July 1990. There is no reason to consider whether a change in the status of the Crimes Act 1900 (NSW) may have been brought about simply by the deeming force of s 34(4) of the Self-Government Act in combination with the plenary capacity of the Legislative Assembly to amend or repeal in the exercise of the legislative power conferred by s 22. And there is no need to trace the detailed history of the amendment of the provisions which bear on the offences for which the appellant was tried and convicted.

    [71](1999) 200 CLR 322 at 342 [43]-[44].

12. Enough for present purposes is to focus on the operation of the Crimes Legislation (Status and Citation) Act 1992 (ACT) ("the Status and Citation Act") as enacted by the Legislative Assembly under s 22 of the Self-Government Act with effect from 28 May 1992 and as continued in effect by the Legislative Assembly under s 22 of the Self-Government Act after the repeal of the Status and Citation Act by s 5 of the Law Reform (Miscellaneous Provisions) Act 1999 (ACT).

13. The Status and Citation Act, as was indicated by both its short title and its long title, was not concerned to effect a formal change in the citation of the Crimes Act 1900 (NSW) as then taken to be an enactment by force of s 34(4) of the Self-Government Act. The purpose of the Status and Citation Act was to effect a substantive change in the ongoing status of that enactment.

14. By defining "applied State Act" to mean "the Crimes Act, 1900 of the State of New South Wales in its application in the Territory as amended and in force immediately before the commencement of this Act", s 2 of the Status and Citation Act picked up the text of the Crimes Act 1900 (NSW) in the form in which that text, as then amended, was at that time taken to be an enactment by force of s 34(4) of the Self-Government Act. By providing that "[t]he applied State Act shall be taken to be, for all purposes, a law made by the Legislative Assembly as if the provisions of the applied State Act had been re-enacted in an Act passed by the Assembly and taking effect on the commencement of this Act", s 3(1) of the Status and Citation Act then operated to give the totality of that text the status of a law enacted by the Legislative Assembly with effect from 28 May 1992. The expression "as if" was evidently employed in the drafting of s 3(1) as "a convenient device for reducing the verbiage of an enactment"[72]. Although the expression invoked a statutory fiction[73], its fictional effect should not be taken further than is necessary to achieve its legislative purpose[74]. The purpose was to achieve the substantive legal effect of re-enactment of the text identified in s 2 as a law of the Legislative Assembly without repetition of that text. It was the text identified in s 2 as re-enacted by s 3(1) as a law made by the Legislative Assembly which s 4 thereafter permitted to be cited as the "Crimes Act 1900" (ACT).

    [72]R v Hughes (2000) 202 CLR 535 at 551 [24].

    [73]Re Macks; Ex parte Saint (2000) 204 CLR 158 at 203 [115]; Williams v Wreck Bay Aboriginal Community Council (2019) 266 CLR 499 at 535 [101].

    [74]Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 at 447 [51].

15. Through the exercise of the plenary legislative power conferred on it by s 22 of the Self-Government Act, the Legislative Assembly brought about what was in legal substance, and within the terminology of s 34(4) of the Self-Government Act, a "repeal" followed immediately by a re-enactment.

16. The result is that, with effect from at least 28 May 1992, the Crimes Act 1900 (ACT) and each of its provisions has operated substantively as a law of the Legislative Assembly, enacted in the exercise of the legislative power conferred by s 22 of the Self-Government Act, and not as a law of the Commonwealth.

17. GORDON AND STEWARD JJ.   In February 2020, the appellant was committed to stand trial in the Supreme Court of the Australian Capital Territory ("the ACT") for the offences of sexual intercourse without consent (multiple counts) and an act of indecency without consent, contrary to ss 54 and 60 of the Crimes Act 1900 (ACT). The Crown filed a joint indictment against four co‑accused, all charged with offences alleged to have been committed on 3 November 2019 against the same complainant.

18. Under s 68A of the Supreme Court Act 1933 (ACT), criminal proceedings must be tried by a jury, except as otherwise provided by Pt 7 of that Act. Section 68B(1), in Pt 7, permitted a person facing criminal prosecution for an offence, other than an "excluded offence", to elect to be tried by judge alone. Sections 54 and 60 of the Crimes Act 1900 (ACT) were both excluded offences[75].

    [75]Supreme Court Act, s 68B(4) and Sch 2, Pt 2.2, items 11 and 18.

19. On 16 March 2020, the Minister for Health of the ACT declared a public health emergency under the Public Health Act 1997 (ACT) in response to the health risks posed by the COVID-19 pandemic. On 7 April 2020, the Supreme Court of the ACT issued a practice direction that jury trials would not proceed until further notice. The following day, the COVID-19 Emergency Response Act 2020 (ACT) commenced. It amended s 68B of the Supreme Court Act to permit an accused to elect for a judge alone trial for an excluded offence during the "COVID‑19 emergency period". And, relevantly for this appeal, s 68BA was introduced to empower the Supreme Court to order a trial by judge alone during the "COVID-19 emergency period", with no requirement of election or consent by the accused[76].

    [76]"COVID-19 emergency period" was defined as the period beginning on 16 March 2020 and ending on 31 December 2020 or, if another day was prescribed by regulation, the prescribed day: Supreme Court Act, ss 68B(4), 68BA(5). The amendments to s 68B, and the whole of s 68BA, were expressed to expire 12 months after commencement: Supreme Court Act, ss 68B(5), 68BA(6).

20. Section 68BA of the Supreme Court Act, headed "Trial by judge alone in criminal proceedings – COVID-19 emergency period", relevantly provided:

    "(1)This section applies to a criminal proceeding against an accused person for an offence against a territory law if the trial is to be conducted, in whole or in part, during the COVID-19 emergency period.

    (2)      To remove any doubt, this section applies –

    (a)      to a criminal proceeding –

    (i)that begins before, on or after the commencement day; and

    (ii)for an excluded offence within the meaning of section 68B(4); and

    (b)whether or not an election has been made by the accused person under section 68B, including before the commencement day.

    (3)The court may order that the proceeding will be tried by judge alone if satisfied the order –

    (a)will ensure the orderly and expeditious discharge of the business of the court; and

    (b)      is otherwise in the interests of justice.

    (4) Before making an order under subsection (3), the court must –

    (a)give the parties to the proceeding written notice of the proposed order; and

    (b)in the notice, invite the parties to make submissions about the proposed order within 7 days after receiving the notice."

21. On 18 June 2020, the appellant and his co-accused received notice from the Supreme Court under s 68BA(4) of a proposed order for a judge alone trial.

22. On 9 July 2020, the ACT Legislative Assembly repealed s 68BA of the Supreme Court Act[77], prompted by the Supreme Court's decision to recommence the conduct of jury trials[78]. Transitional provisions were inserted into the Act to allow for s 68BA to continue to apply to persons to whom a notice had been given under s 68BA(4)[79].

    [77]COVID-19 Emergency Response Legislation Amendment Act 2020 (No 2) (ACT), s 36. 

    [78]Australian Capital Territory, Legislative Assembly, COVID-19 Emergency Response Legislation Amendment Bill 2020 (No 2), Explanatory Statement at 3-4. See also Australian Capital Territory, Legislative Assembly, Parliamentary Debates (Hansard), 18 June 2020 at 1310.

    [79]COVID-19 Emergency Response Legislation Amendment Act 2020 (No 2) (ACT), s 37, inserting Supreme Court Act, Pt 12.

23. On 13 August 2020, the Supreme Court made an order for the joint trial of the appellant and his co-accused to proceed by judge alone[80]. In their written submissions in response to the notice, the appellant and the Crown had opposed the making of the order. The three other co‑accused had supported the making of the order. The appellant did not make an application for reconsideration of the s 68BA(3) order prior to or at the time of his trial[81], nor did he seek leave to appeal the order by way of an interlocutory appeal. The trial proceeded, and the appellant was convicted of sexual intercourse without consent (seven counts) and act of indecency without consent (one count).

    [80]R v Vunilagi (2020) 354 FLR 452.

    [81]cf R v UD [No 3] (2020) 352 FLR 286.

24. In this Court, the appellant raised two grounds of appeal challenging the constitutional validity of s 68BA of the Supreme Court Act. The first was whether s 68BA was invalid for infringing the Kable principle[82]. The second was whether s 68BA was invalid in its application to the appellant because s 80 of the Constitution required his trial to be by jury. For the following reasons, both grounds should be dismissed.

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

    Ground 1 – Kable principle

25. The Supreme Court of the ACT is a Ch III court that is capable of exercising the judicial power of the Commonwealth in the exercise of jurisdiction conferred on it by laws made by the Commonwealth Parliament[83]. It follows that the Kable principle applies to the ACT Supreme Court and to the ACT Legislative Assembly[84]. Accordingly, the ACT Legislative Assembly cannot, consistently with Ch III of the Constitution, confer on the ACT Supreme Court a function or power that is incompatible with, or substantially impairs, its institutional integrity[85].

    [83]See North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [28].

    [84]See North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 595 [41] ("NAAJA"), citing Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 425 [42]. See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 363 [81]; Bradley (2004) 218 CLR 146 at 163 [29]; South Australia v Totani (2010) 242 CLR 1 at 49 [72]; NAAJA (2015) 256 CLR 569 at 616-618 [115]-[122], 625 [148], 637 [182]-[183].

    [85]See NAAJA (2015) 256 CLR 569 at 594-595 [39(6)], citing Wainohu v New South Wales (2011) 243 CLR 181 at 210 [46]. See also Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 245-246 [55], 274-275 [138]-[140], 292 [189].

26. The appellant accepted that the power to order a judge alone trial under s 68BA(3) of the Supreme Court Act was a power that can, and indeed must, be exercised judicially. The appellant accepted that the criteria in s 68BA(3)(a) and (b) were susceptible of judicial application[86]. The appellant also accepted that the power in s 68BA(3) attracted the usual incidents of the judicial process, including the essential features of procedural fairness, an open and public inquiry, and the giving of reasons[87]. The appellant did not challenge the power in s 68BA(3) under which the order for a judge alone trial was made. Rather, the appellant's argument for invalidity turned on s 68BA(4) – the obligation to give notice of a proposed order.

    [86]See Hogan v Hinch (2011) 243 CLR 506 at 551 [80]; Vella (2019) 269 CLR 219 at 234 [20], 259-260 [86]-[89], 283-284 [161]-[162], 292 [187]-[189].

    [87]See Wainohu (2011) 243 CLR 181 at 208-209 [44]; Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 71 [67].

27. The appellant contended that s 68BA(4) was an "antecedent gatekeeping function" – calling for a "screening" and "ex parte" decision – that conferred on the Supreme Court an arbitrary power to select an accused person, from a relevantly identical class of accused persons, to be exposed to the risk of losing a jury trial. The appellant submitted that s 68BA(4) was arbitrary – requiring unequal treatment of accused persons – because there was no duty to give all accused persons a notice and there were no criteria for the Court to decide which accused persons to give a notice. The appellant argued that the process for selection under s 68BA(4) was inscrutable, because there was no requirement to give reasons and the order was made on the Court's own motion.

28. In a challenge to the validity of legislation, the correct starting point is the legal and practical operation of the impugned legislation, discerned as a matter of statutory construction[88]. Ground 1 can be dealt with briefly. That is because, once s 68BA of the Supreme Court Act is properly construed, the appellant's argument falls away. Section 68BA contained a single operative power for ordering a trial by judge alone. There was no separate "gatekeeping" or "screening" power.

    [88]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 498-499 [53]; Coleman v Power (2004) 220 CLR 1 at 21 [3], 68 [158]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 553 [11]; NAAJA (2015) 256 CLR 569 at 581 [11], 603 [70]-[71]; Brown v Tasmania (2017) 261 CLR 328 at 428-429 [307], 433-434 [326], 479-480 [485]-[486], 481 [488]; Comcare v Banerji (2019) 267 CLR 373 at 434 [136]-[138]; Vella (2019) 269 CLR 219 at 229 [1], 269-270 [116]; LibertyWorks Inc v The Commonwealth (2021) 274 CLR 1 at 49 [125]; Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655 at 672 [64]-[65], 682 [124], 697 [219]; 403 ALR 1 at 17, 30, 51.

1. The conclusion that, as a matter of the interpretation of s 80 of the Constitution, ss 54 and 60 of the Crimes Act have not been laws of the Commonwealth for decades concerns the smaller issue of interpretation that was raised, but not decided, in R v Bernasconi. It is not necessary to consider whether a similar application could re-explain the result in R v Bernasconi, which would have the effect that the result in R v Bernasconi would not be overruled. The application of this smaller issue of interpretation to the facts of R v Bernasconi would require a close analysis of the nature of the offence provision under which Mr Bernasconi was convicted[293], adopted as law in the Territory of Papua by the Criminal Code Ordinance of 1902 (No 7 of 1902) (British New Guinea), and a consideration of whether the continuance of that Ordinance by the Papua Act 1905 (Cth) had the effect that Mr Bernasconi was tried for an offence against a law of the Commonwealth. It may be that such an issue is only a matter of historical interest.

   [293]Criminal Code (Qld), s 339.

2. The appeal should be dismissed.