Vunilagi v The Queen

The appeal concerned the constitutional validity of a provision inserted into the *Supreme Court Act 1933* (ACT) in response to the COVID-19 pandemic. The appellant, Vunilagi, was convicted of offences under the *Crimes Act 1900* (ACT) following a trial by judge alone, ordered under the impugned provision. Vunilagi argued that this provision, by allowing the Supreme Court of the Australian Capital Territory to order a trial by judge alone for previously excluded indictable offences without the accused's consent, impaired the institutional integrity of Territory courts and thus contravened Chapter III of the Constitution.

The High Court was required to determine two principal legal issues. Firstly, whether the impugned provision, s 68BA(4) of the *Supreme Court Act 1933* (ACT), substantially impaired the institutional integrity of Territory courts, rendering it incompatible with their role as repositories of federal jurisdiction. Secondly, the Court considered whether ss 54 and 60 of the *Crimes Act 1900* (ACT), under which the appellant was convicted, constituted "laws of the Commonwealth" for the purposes of s 80 of the Constitution, which guarantees trial by jury for such offences. This involved examining whether laws enacted by the ACT Legislative Assembly, as a subordinate legislature, could be considered Commonwealth laws in this context, and whether the decision in *R v Bernasconi* (1915) 19 CLR 629 should be revisited.

The High Court held that s 68BA(4) did not substantially impair the institutional integrity of Territory courts. The Court reasoned that the provision was a temporary measure enacted to ensure the orderly and expeditious discharge of court business during a public health emergency, and that the "judge alone" trial mechanism was a legitimate form of case management that did not fundamentally alter the nature of the court's judicial function. Regarding the second issue, the Court found that ss 54 and 60 of the *Crimes Act 1900* (ACT) were not laws of the Commonwealth for the purposes of s 80 of the Constitution. The Court affirmed that while Territory courts exercise federal jurisdiction, laws enacted by a Territory legislature, even if picked up and applied by Commonwealth law, do not become "laws of the Commonwealth" in the sense contemplated by s 80. Consequently, the guarantee of trial by jury under s 80 did not apply to these offences.

The appeal was dismissed.