State and Federal Courts on Constitutional Law in 2024

G+T Centre of Public Law Constitutional Law Conference 2025, Sydney

The Hon Justice Angus Stewart^*

A. Overview

In the preparation of this paper, I have sought to identify all cases decided in 2024 in the State, Territory and Federal superior courts that raise a constitutional issue. From those, I have selected the cases that appear to have more than a marginal significance in relation to constitutional law.

I have sought to discuss the cases in groups according to common themes, although where a case raises more than one constitutional theme I have elected to discuss all those themes when I first discuss the case.

B. Ch III – NZYQ constitutional limit on executive detention

Background

The background to this series of cases is the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 in late 2023. The decision imposed a limit on executive detention under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable, ie it is not constitutionally permissible if and for so long as there is no real prospect of the non-citizen’s removal from Australia becoming practicable in the reasonably foreseeable future: NZYQ at [55].

Following that, in ASF17 v Commonwealth of Australia [2024] FCA 7, Colvin J held that a non-citizen’s refusal to cooperate in taking steps to facilitate their removal – steps that are open and available for them to take such as signing necessary paperwork – does not make their removal from Australia impractical in the relevant sense; ongoing detention in such circumstances does not exceed the constitutional limit. The appeal against that decision that was removed from the Full Court to the High Court was dismissed: ASF17 v Commonwealth of Australia [2024] HCA 19.

HSCK v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 313 (Button J)

Two months before the decision in NZYQ, the Administrative Appeals Tribunal (AAT) affirmed the decision of a delegate of the relevant Minister to cancel the applicant’s visa on character grounds. On review of that decision, the applicant contended that the decision of the AAT was affected by jurisdictional error, in that the Tribunal’s conclusion that the continuing indefinite detention of the applicant was justified by the protection of the Australian community was not open to it, as it was contrary to the decision in NZYQ.

Before the Tribunal the Minister noted that the threats faced by the applicant in South Sudan (his receiving country) meant it was “very unlikely” that he would voluntarily return there and conceded that the prospects of finding another country willing to receive the applicant were poor, and that there were only limited prospects of either of the Minister’s personal discretion options being engaged. On that basis the Tribunal determined that it was likely that the applicant would remain in indefinite detention without any clear prospect for release if the cancellation of his visa were not revoked.

Justice Button accepted the Minister’s submission that the constitutional limit in NZYQ was not engaged ([31]). This was because it was not established that there was no real prospect of the applicant being removed from Australia in the reasonably foreseeable future ([35]). The Minister’s concessions before the Tribunal did not establish the necessary facts for three reasons. First, the concessions were to be understood having regard to the context in which they were made, which included the factual reality that NZYQ had not yet been handed down, and so the concessions could not be construed as pre-figuring characterisations of fact that the High Court had yet to make ([34]). Secondly, the applicant had not yet exhausted his domestic review and appeal rights which meant that the occasion had not yet arrived to make enquiries and see whether he could be removed to a third country or what timeframes were involved ([34]). Thirdly, and relatedly, the Minister’s concessions were made in the context of the Tribunal having to consider the legal consequences of the decision under review so they merely identified the prospect of indefinite detention as a possible consequence ([34]).

For those reasons there was no error by the AAT. Her Honour nevertheless went on to consider whether any error would have been material. Her Honour did not accept the Minister’s submission that the error was not material because it had been made entirely in the applicant’s favour – the Tribunal had counted the prospect of indefinite detention as weighing heavily in favour of revoking the cancellation of the applicant’s visa (see [38]). Rather, her Honour reasoned that the Tribunal would have been presented with a different set of circumstances to assess, different potential outcomes to compare, and could have reached a different decision ([43]).

The appeal against the decision of Button J is listed for hearing before the Full Court in the first week of March.

AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103 (Murphy, Stewart and McEvoy JJ)

This case is similar to the previous one, but the argument on review was put differently which may account for the different result. The Minister set aside an AAT decision to grant the appellant a protection visa and refused the visa in “the national interest” under s 501A(2)(e) of the Migration Act, having regard to the appellant’s history of domestic violence. The Minister’s decision was made before judgment in NZYQ and the challenge to the decision was made after NZYQ. Justice Kennett dismissed the application for judicial review of the decision: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130.

The appeal succeeded on a ground that was not argued before the primary judge but in respect of which leave was granted. It asserted that the Minister made a jurisdictional error of law in making his decision on the basis of the law as it was then understood to be – as proclaimed by the High Court in Al-Kateb v Godwin [2004] HCA 37 – whereas the law as later proclaimed with retrospective effect in NZYQ was different. The Minister’s erroneous understanding of the law was that if the appellant’s protection visa application was refused and the appellant was granted no other visa, the appellant would remain in immigration detention until he could be removed to another country, if and when that occurred.

Because of non-refoulement obligations being engaged, the poor prospects of the appellant’s removal to a third country and the terms of the Act, at the time of the Minister’s decision he understood the legal consequences of the Act likely included “indefinite detention”. That was an erroneous conclusion as to the consequences of the decision because of an erroneous understanding of the Act and its operation which amounted to an error of law ([34]).

The Full Court found that the Minister’s reasons were imbued and infused with the error which was thus material ([49]). That was in particular because the Minister believed that, upon refusal of a visa, the appellant would remain in detention until removed from the country, meaning that refusal would have had a protective effect for the community from any risk of violence by the appellant. However, had the Minister appreciated that the appellant might not remain in detention, he might have come to a different decision.

ABF17 v Commonwealth of Australia [2024] FCA 694 (Horan J)

This case and the next involves an application of the constitutional limit on executive detention as held in NZYQ in the context of an application for habeas corpus. The applicant, a detained Iranian national, was not cooperating with steps in the administrative process to facilitate his removal to Iran. The Commonwealth had not been able to remove the applicant to Iran, on the asserted basis that the Iranian government will not issue travel documents for “involuntary” return of its nationals. The applicant sought an order in the nature of habeas corpus directed to the respondent together with a declaration that his ongoing detention is unlawful which raised the question whether the applicant’s current and continuing detention was authorised by ss 189 and 196 of the Migration Act 1958 (Cth).

On the facts, Horan J found that it was within the power or capacity of the applicant to cooperate with the steps that were practically available to be taken in the administrative processes necessary to facilitate his removal to Iran, which could realistically be predicted to result in the applicant’s removal to Iran in the reasonably foreseeable future ([8]). There was at least a real prospect that the applicant would be issued with a travel document enabling him to enter Iran if he were to cooperate with the steps necessary to make an application to the Embassy, the immediate barrier being the applicant’s lack of cooperation and assistance ([128]).

CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 (Wheelahan J)

Although this case concerns the application of the principle established in NZYQ, contrary to NZYQ which applied the constitutional limitation on executive detention to removal of the detainee under s 198 of the Migration Act, Wheelahan J found that as an unauthorised maritime arrival in respect of whom the Minister had exercised the power in s 46A(2) to lift the bar to applying for a visa, the applicant’s removal was governed by s 198AD which required the transfer of the applicant to a regional processing country “as soon as reasonably practicable” ([83], [84], [219]). His Honour held that the same expression of the constitutional limitation applied to such detention and removal, which meant that the issue for determination was with regard to whether there was a real prospect of removal to a regional processing centre becoming practicable in the reasonably foreseeable future ([282]).

On the evidence, Wheelahan J did not have an affirmative state of satisfaction that there existed a real prospect of the transfer of the applicant under s 198AD becoming practicable in the reasonably foreseeable future ([282]). That was essentially because the evidence was “scant to non-existent” ([281]). The Commonwealth had proceeded on the assumption that removal to Iran or Iraq under s 198 was applicable, rather than transfer under s 198AD ([281]). On that basis, his Honour ordered the release of the applicant from detention.

In the light of conflicting authority on whether ss 198 or 198AD applied, his Honour also considered whether there was a real prospect of the applicant being removed to Iran or Iraq becoming practicable in the reasonably foreseeable future such that the applicant’s continuing detention breached the constitutional limit in NZYQ ([87]ff). His Honour found that there was a real prospect that in the reasonably foreseeable future the Iraqi authorities would determine that the applicant is a citizen of Iraq and that if that occurred, it was likely that the removal of the applicant to Iraq would become practicable shortly thereafter ([180], [187]).

On 30 January 2025, the Full Court found that the primary judge was correct to conclude that s 198AD rather than s 198 applied, and that Wheelahan J did not err in finding that the applicant had discharged his evidential onus of proving that his detention was unlawful. The appeal was dismissed: Secretary, Department of Home Affairs v CRS20 [2025] FCAFC 3.

C. Ch III – Lim and punishment being an exclusively judicial function

Background

The next case to discuss is a significant case dealing with the extended application of the Lim principle to cessation of citizenship. That principle is that the “the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt”: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27, and as applied in cases such as Alexander v Minister for Home Affairs [2022] HCA 19, Jones v Commonwealth [2023] HCA 34 and Minister for Home Affairs v Benbrika[2023] HCA 33.

To understand the case, it is necessary to consider the context of the High Court cases on deprivation of citizenship that it followed.

Section 36B(1) of the Australian Citizenship Act 2007 (Cth) relevantly provided that the Minister could determine in writing that a person aged 14 or older ceased to be an Australian citizen if the Minister was satisfied that: (a) the person engaged in conduct specified in s 36B(5) (which included “engaging in foreign incursions and recruitment”) while outside Australia; (b) the conduct demonstrated that the person had repudiated their allegiance to Australia; and (c) it would be contrary to the public interest for the person to remain an Australian citizen.

Section 36D(1) was essentially the same as s 36B(1) save that it required that the person had been convicted of one or more specified offences in respect of which they had been sentenced to a specified period or periods of imprisonment. That is to say, s 36B(1) applied in respect of conduct outside Australia and s 36D(1) applied in respect of conduct for which the person had been convicted in Australia.

In Alexander, the High Court held that s 36B(1) was invalid as it reposed in the Minister the exclusively judicial function of punishing criminal guilt, thereby offending the Lim principle. In Benbrika, the High Court came to the same conclusion in respect of s 36D(1).

Section 34(2)(b) of the Citizenship Act reposed in the Minister the power to revoke Australian citizenship if, relevantly, the person had, at any time after making their application to become an Australian citizen, been convicted of a specified serious offence (para (b)(ii)) and the Minister was satisfied that it would be contrary to the public interest for the person to remain an Australian citizen (para (c)).

In Jones the High Court held by majority that s 34(2)(b)(ii) was valid in its application to the plaintiff in that case, essentially because the provision was reasonably capable of being seen as necessary for a legitimate non-punitive purpose, being the protection of the integrity of the naturalisation process. In circumstances where it was a precondition to the grant of a certificate of citizenship that the Minister be satisfied that the person was “of good character” and where conviction of a serious offence was relevant to the ministerial assessment of that precondition, the Court held that it was not contrary to Ch III of the Constitution to confer on the Minister a power to revoke citizenship if the person was subsequently convicted of a serious offence that had been committed before the grant of citizenship.

Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 146 (Burley, O’Callaghan and Horan JJ)

Now, in the case under consideration, the appellant challenged the revocation of his Australian citizenship under s 34(2)(b)(ii) of the Citizenship Act. The revocation was based on the appellant’s conviction for rape for which he was sentenced to a term of imprisonment for five years. The offence was committed before the appellant was granted citizenship and he was not charged or convicted until years after he had become a citizen. Importantly, the appellant was a child both at the time of the offence and when he became a citizen.

Unlike in Jones, the appellant did not obtain his citizenship by application himself as an adult, but rather he was included in his mother’s citizenship application as dependent child under the age of 16 years. Under the relevant provisions, it was a requirement of his mother’s application that the Minister be satisfied that she was a person of good character, but that was not a requirement that applied to the appellant as a minor.

In considering the appellant’s challenge to the constitutionality of s 34(2)(b)(ii) in its application to him, the Full Court emphasised that in Jones a majority of the Court held that the power conferred on the Minister by s 34(2)(b)(ii) to revoke the plaintiff’s citizenship was not a power to punish criminal guilt and was not otherwise exclusively judicial, because it was reasonably capable of being seen as necessary for the non-punitive purpose of protecting the integrity of the naturalisation process ([87]). In reaching this conclusion, the majority of the High Court had emphasised the statutory precondition to the grant of a certificate of Australian citizenship that required the Minister to be satisfied that the person was of “good character” ([87]). In other words, the revocation power was “to permit what had been considered and done administratively to be reconsidered and undone administratively if at any time later a criminal conviction were to demonstrate the original decision to have been made on materially incorrect or incomplete information”: Jones at [51].

As that precondition did not apply to the appellant as a minor at the relevant time, the justification that the provision protects the integrity of the naturalisation process was absent. In granting citizenship, the Minister had not been required to assess the minor person’s character as a precondition. Removal of that citizenship based on a subsequent conviction for prior serious criminal conduct could not reasonably be seen as necessary for the protection of the integrity of the naturalisation process ([127]). The Full Court thus concluded that the power to revoke citizenship granted to a minor in the manner in which the appellant gained citizenship was punitive in nature, such power being conferred on the Minister contrary to Ch III of the Constitution ([127]). Section 34(2)(b)(ii) was therefore invalid in its application to the appellant.

Notably, the appellant initially attempted to remove the case from the Federal Court to the High Court under s 40 of the Judiciary Act 1903 (Cth) but was unsuccessful. The High Court noted it was not an appropriate circumstance, particularly where the Full Court was yet to consider the application of Jones. No special leave application has been filed and the time for doing so has passed.

Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 790 (Shariff J)

This was an application for judicial review of a decision of the AAT to reaffirm the Minister’s non-revocation decision. The applicant was convicted of several counts of domestic violence which led to the cancellation of his visa.

The applicant contended that the relevant provisions of Direction 90, which required the delegate of the Minister and the Tribunal to take account of any conviction for domestic violence as a primary consideration in favour of a cancellation decision, exceeded the Minister’s power under s 499 of the Migration Act by contravening the Lim principle in being punitive in nature. The applicant also contended that the decision of the Tribunal adjudicated and punished prior criminal conduct so that the cancellation of the applicant’s visa and subsequent deportation of the applicant would amount to re-punishment of conduct for which the applicant had already been punished, being also prohibited by Ch III of the Constitution ([11]).

Justice Shariff noted that in Falzon v Minister for Immigration and Border Protection [2018] HCA 2, the majority held that the exercise of a power to cancel, or not renew, a visa by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power ([27]). On this view the power to cancel a visa that is informed by a person’s prior offending is not inherently judicial in character. Such a power operates on the person’s prior offending as a status and objective fact for the making of an administrative decision ([30]). The applicant’s contentions were therefore rejected.

The appeal from the decision is listed for hearing next month but it does not appear that the constitutional issue is pressed on appeal.

D. Ch III – Kable and judicial independence

Crawford v State of Western Australia [2024] FCA 222 (Perram J)

The applicant was dually appointed as a magistrate of the Magistrates Court of Western Australia and as a magistrate of the Children’s Court of Western Australia, sitting full time in the Children’s Court from 2012 to 2021. On 1 March 2022, Pts 2 and 3 of the Courts Legislation Amendment (Magistrates) Act 2022 (WA) came into operation which inserted new provisions into the Children’s Court of Western Australia Act 1988 (WA).

The effect of those provisions enabled the President of the Children’s Court to give a notice having the effect of changing the working capacity of magistrates, with the consent of the Chief Magistrate of the Magistrates Court. Pursuant to those provisions, the applicant was directed to stop sitting full time in the Children’s Court and instead sit part time in both the Magistrates and Children’s Courts. This was followed by a later direction which had the effect of reducing the applicant’s sittings in the Children’s Court to nil except for the possibility of ad hoc sittings.

The applicant challenged the constitutional validity of the inserted provisions. This was on the basis that the provisions offend the Kable principle by limiting the independence or security of tenure of dually appointed magistrates, thus being contrary to Ch III of the Constitution by impairing or detracting from the independence or institutional integrity of the Court(s).

Justice Perram rejected the challenge directed at judicial independence on the basis that the legislation should be read down so as not to allow the exercise of the power for improper purposes. His Honour noted that the terms of s 11 seemed to pose no limitation on what reasons the President could rely on to issue a direction modifying the duties of a Children’s Court magistrate ([84]–[85]); yet, this did not mean there was an unfettered discretion ([86]). Any purpose of the President’s not having “a rational connection with the efficient distribution of the resource” of dually appointed magistrate would be ultra vires s 11(4) ([91], [93]–[94]).

Justice Perram also rejected the challenge directed at institutional integrity, which relied in particular on a provision that deemed a resignation from one commission to be a resignation from both. His Honour then reasoned that “once one accepts that ss 11(4) and 12A(1) can only be used in ways which are consistent with judicial independence, it is difficult to see how the independence of magistrates is threatened merely because a dually appointed magistrate can only resign both offices together rather than each one separately” ([107]). The provisions read in this light were “orthodox administrative efficiency provisions” ([97]).

The judgment on the appeal to the Full Court is currently reserved.

E. Ch III – s 75(v) and the entrenched review jurisdiction

Deripaska v Minister for Foreign Affairs [2024] FCA 62 (Kennett J)

Background

The applicant in the case was Oleg Deripaska, described as “an oligarch and prominent businessman with close personal ties to President Putin” of Russia. On 17 March 2022, the Minister for Foreign Affairs designated the applicant for targeted financial sanctions and declared him as a person banned from travel to Australia under the Autonomous Sanctions Regulations 2011 (Cth), brought into effect by the Autonomous Sanctions (Designated Persons and Entities and Declared Persons — Russia and Ukraine) Amendment (No 7) Instrument 2022 (Cth) issued under the regulations. By way of background, these measures were a consequence of the escalation of the Russian war against Ukraine in early 2022, with the applicant being one of a number of Russian nationals relevantly sanctioned.

The restrictions put on the applicant were very broad in nature. In particular, regs 14 and 15, respectively, had the effect of prohibiting persons from dealing with (by making, directly or indirectly, assets “available to, or for the benefit of” a designated person) or dealing with a “controlled asset” (being an asset owned or controlled by a designated person). The only way for a person to avoid committing a strict liability offence was to obtain a permit under reg 18 from the Minister allowing dealing in assets which would otherwise contravene regs 14 or 15.

Applicant’s case

The applicant sought judicial review of the Minister’s administrative decision to place sanctions upon him. However, the applicant also pressed a number of constitutional arguments challenging the validity of the regulations under which the Instrument was issued.

The constitutional arguments were that: (a) the regulations were wholly invalid by reason of inconsistency with Ch III of the Constitution; and (b) the regulations were wholly invalid because they infringed the implied freedom of political communication. For both these arguments, the applicant pointed to the effect of the regulations. It was not in dispute that a designated person would be prevented by operation of the regulations from remunerating an Australian lawyer to act for them. It was also the case that such a lawyer would be unable in practice to effectively represent that person without dealing with “controlled assets” (as this could extend to legal documents belonging to the designated person). Further, the lawyer would not be able to make available their own “assets” such as notes or intellectual property when representing the designated person. The applicant argued that the regulations rendered access to legal representation a matter for Executive discretion, thus infringing Ch III or the implied freedom.

Minister’s case

As mentioned, the Minister agreed that regs 14 and 15 had these restrictive effects on access to legal representation. However, the Minister argued that the regulations were nonetheless valid, in a qualified way. The qualification was that regs 14 and 15 could not, and did not, exclude access to constitutional remedies of prohibition, mandamus or injunction guaranteed under s 75(v) of the Constitution. This was because it was accepted that s 75(v) confers an “entrenched” jurisdiction ensuring a “minimum provision of judicial review” which could not be legislatively ousted. The Minister thus argued that regs 14 and 15 ought to be read as excluding actions taken for the purpose of s 75(v) judicial review, rather than struck out entirely. A permissible action in this context would therefore include engaging and instructing Australian legal representation to run a s 75(v) judicial review application.

Decision

Justice Kennett accepted that the regulations could and should be read down to preserve judicial review by way of s 75(v) ([73]). Such a reading down would not seem to radically alter the scheme of the Act ([62]). There was nothing to suggest that the provisions were intended to not have any operation at all if the prohibitions could not fully apply ([64]). Some indeterminacy in the meaning of the provisions created by reading down did not mean that it was impossible to do ([70]–[72]).

As an adjunct to this conclusion, Kennett J made an interesting observation. His Honour noted the situation in which a designated person might be affected by a Commonwealth decision made under other, non-sanctions related, legislation and who might then wish to have that decision reviewed via s 75(v). Regulations 14 and 15 would render those other proceedings very difficult to maintain – would this also be a source of invalidity ([75])? This was not necessary to answer in light of regs 14 and 15 being read down so as to preserve s 75(v) jurisdiction, but his Honour did note that this left open a “wide field for argument in future cases concerning the scope of the constitutional limitation” ([77]).

Conversely, Kennett J rejected a novel point which suggested that there might be a general restriction on legislation which could compromise the exercise of federal jurisdiction, ie for heads of jurisdiction other than s 75(v) ([85]). Put another way, this was an argument that there was a general right to invoke federal jurisdiction and there needed to be protected access to legal representation for that purpose. His Honour noted there was no authority to suggest that the principle around s 75(v) could be “writ large” in this way ([84]). The need to read down regs 14 and 15 came solely from the existence of an irreducible core of s 75(v) judicial review ([87]).

Implied freedom point

The parties agreed there was a burden of some kind on freedom of communication ([89]). Justice Kennett considered there was, however, a legitimate purpose to the regulations in serving Australia’s foreign policy objectives by aiming sanctions at targets in relation to matters of international concern ([101]). The regulations also passed the proportionality analysis of suitability and necessity ([102], [110]). A less restrictive alternative measure to regs 14 or 15 which would allow the engagement of professional advisers by the applicant would have really had no ameliorating effect on the burden placed on political communication with the Australian public, as a person the subject of a designation was nevertheless free to speak on political matters in their personal capacity, using social media and other channels ([111]). In any event, the alternative measures would be less effective in achieving the purpose of the regulations ([110]). The regulations were also adequate in their balance in light of the modest burden ([111]–[112]).

Appeal

The hearing on the appeal from Justice Kennett’s judgment was heard by the Full Court in November. Judgment is reserved.

Indara Inbuilding Solutions Pty Ltd v Australian Communications and Media Authority [2024] FCAFC 117 (Sarah C Derrington, Banks-Smith and Kennett JJ)

This appeal concerned the assessment of the Telecommunications Industry Levy (TIL) under the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) (the TCPSS Act). Section 45(1) of the Act enabled the respondent (ACMA) to issue written determinations setting out procedures for the ascertainment of “eligible revenue” for the TIL. The relevant determination in force was the Telecommunications (Eligible Revenue) Determination 2015 (Cth) (TER Determination). The appellant (Indara) contended that the ACMA erred and departed from the TER Determination in assessing its revenue for the purposes of calculating TIL by including certain revenue earned by a related party called Axicom Pty Ltd (APL).

The constitutional issue that arose was a preliminary issue of jurisdiction. Section 58 of the TCPSS Act provides that “[t]he validity of an assessment under this Division is not affected by a contravention of this Division”. As the Full Court observed, it functions similarly to s 175 of the Income Tax Assessment Act 1936 (Cth) (ITAA) by limiting the extent to which judicial review for jurisdictional error can occur for technical non-compliance with formalities in the Act ([45]). The difference between the TCPSS Act regime and the ITAA regime is that in the ITAA, s 175 operates subject to Pt IVC, which provides for mechanisms by which a dissatisfied taxpayer can object to an assessment ([47]). Conversely, the TCPSS Act has no equivalent such that, read literally, the TIL assessment can be insulated from review ([48]). On this construction, there was a question of whether this would be inconsistent with s 75(v) of the Constitution ([48]).

Both parties took the view that s 58 of the TCPSS Act would not save the impugned assessment from invalidity if it involved a failure to assess eligible revenue in accordance with the relevant provisions of the TER Determination ([51]). ACMA said, in particular, that where s 58 refers to an “assessment under this Division”, that does not speak of an assessment involving jurisdictional error – and to err by issuing an assessment not in accordance with the TER Determination would be jurisdictional in nature ([51]). The Full Court accepted this, noting that while this was a “strained” reading of the text of the provision, it needed to be read down to avoid being contrary to the Constitution ([53]). Further, there was some support for this view in the extrinsic material and surrounding provisions, while a strict construction would render much of the Division otiose ([54]).

Harkness v Banks (No 2) [2024] VSC 709 (Richards J)

The plaintiff sought judicial review of the State Director of Public Prosecution’s decision to withdraw criminal charges in the Magistrates Court of Victoria. Although accepting that as a single judge of the Supreme Court of Victoria, her Honour was bound by the “great weight of Australian authority for the proposition that prosecutorial decisions are insusceptible to judicial review” ([67]), Richards J raised some reservations as to the correctness of that position ([68]).

First, Richards J observed that a principle of non-reviewability appears incompatible with the constitutionally protected supervisory jurisdiction of a State Supreme Court to review the exercise of statutory power for jurisdictional error, eroding one of the “defining characteristics” of a State Supreme Court ([69]). Secondly, there is nothing unusual about a State Supreme Court undertaking judicial review of an executive decision made by reference to complex policy and public interest considerations, given that the distinction between legality and merits reflects the separation of powers between the executive and the judiciary ([71]). Thirdly, the principle of non-reviewability shields decisions affected by jurisdictional error from judicial review ([76]). Fourthly, the principle has the effect that the Director is an “island of power immune from supervision and restraint” of the kind described by the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1, noting that the Director has no political accountability ([77]).

F. Ch III – Burns v Corbett and federal jurisdiction

Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87 (Buss P, Mitchell and Hall JJA)

Background

The High Court’s decision in Burns v Corbett [2018] HCA 15 made clear that State legislatures cannot confer federal judicial power, such as that identified in ss 75 and 76 of the Constitution, on State tribunals. This case involved the issue of whether a corporation (incorporated pursuant to the Corporations Act 2001 (Cth)) being party to a dispute in the State Administrative Tribunal of Western Australia would be sufficient to move that dispute outside of that Tribunal’s jurisdiction; and, even if not, whether advancing a genuine argument to that effect was a matter arising under the Constitution or involving its interpretation, having the same effect.

The appellant was the builder of an apartment complex which had a number of defects. The respondent strata company applied to the Building Commissioner to recover the cost of remedying the relevant defects. Due to the amount of this claim, the Building Commissioner sought the consent of the Tribunal for the transfer of the application to it. The respondent strata company was the joint applicant on the transfer application. The appellant then applied to the Tribunal for an order that the claim be dismissed on the basis that the Tribunal did not have jurisdiction to hear the matter, making the aforementioned arguments. The application was dismissed, prompting the appellant to appeal to the Western Australian Court of Appeal.

Decision

The Court rejected both contentions. Dealing with the corporations submission, the Court did not consider the corporate status of a party to the dispute, reliant on the Corporations Act in order for a remedy given by the Tribunal to be enforceable against it, as being indicative of the rights in issue being dependent upon federal law for enforcement (cf [76]). That a corporation might per se attract federal jurisdiction in this way had been contemplated by Lee J in obiter in Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [16], but the issue had not been settled one way or another in subsequent years, with single judge decisions having varying views on the matter.

As the judgment went on to note ([88]), most recently, the Victorian Court of Appeal in Krongold Constructions (Aust) Pty Ltd v Thurin [2023] VSCA 191 at [111]–[113] had (also in obiter) disagreed, taking the view that the mere fact of a matter involving a corporation would not make it one arising under a Commonwealth law. The Corporations Act instead was merely “lurking in the background” or an “incidental consideration” rather than the subject of the dispute owing existence to Commonwealth law. The Western Australian Court of Appeal agreed with the Victorian approach in Krongold for the same reasons ([94]).

The Court added that while some of the enumerated classes of “matter” in ss 75 and 76 referred to the class of participants (eg, diversity jurisdiction between residents of different States in s 75(iv)), s 76(ii) was not such a class of matter ([100]). The rights at issue in the Tribunal did not depend on federal law for their existence or enforcement, since they came into being from a State Act ([101]); the fact that a body was established by federal law did not mean it was immune from the application of State law such as the Act governing the Tribunal ([102]).

Dealing with the genuine jurisdictional argument point, the Court drew a distinction between “jurisdictional” and “substantive” controversies ([54]). The former concerned “the authority of a court or tribunal to adjudicate on a substantive controversy which is the subject of proceedings before that court or tribunal”, while the latter concerned “the validity of a law … [and] the substantive rights, duties and liabilities at issue between the parties” ([60]). This distinction mattered because while a “matter” arising under the Constitution or involving its interpretation (ie, s 76(i)) could exist under both kinds of controversies, only substantive controversies would have the automatic consequence of characterising the whole proceeding as a s 76(i) matter ([60]).

If it were otherwise, any genuinely raised jurisdictional argument would have the consequence of bringing the proceeding into federal jurisdiction in a “self-fulfilling” way, even if plainly incorrect ([61]). The substantive matter – the building rectification dispute – did not have any federal dimension. The jurisdictional matter potentially having that dimension did not serve to characterise the substantive matter; rather, just the jurisdictional matter would be capable of being a constitutional matter separately ([125]–[128]). Hence, once the jurisdictional argument had been disposed of in the negative, the proceeding as a whole had continued as a purely State-law based matter.

A separate, additional point raised by the appellant was that the making of orders by the Building Commissioner for remediation to occur was judicial in character and thus outside their remit. This was rejected on the basis that remedial orders from the Commissioner did not have the effect of finally determining the parties’ rights, having an administrative character incapable of registration or enforcement as a judgment of a court ([116]).

Special leave was refused by the High Court on 5 December 2024 ([2024] HCASL 320) on the basis that the appeal “lacks sufficient prospects of success and it cannot be said that the administration of justice, either generally or in this particular case, supports the grant of special leave”. The consequence is that this case is (for now) the dispositive word of an intermediate appellate court on the issue of whether a corporation incorporated under the Corporations Act being party to a dispute renders that dispute one attracting federal jurisdiction.

Two other tribunal jurisdiction cases: s 75(iii)

2024 saw other cases addressing similar issues of State tribunal jurisdiction.

In some of these the jurisdictional challenge arose on the ground that a Commonwealth statutory corporation was named as the respondent. In both An v Australian Broadcasting Corporation [2024] VSC 518 and Albyn QLD Pty Ltd v Australian Postal Corporation [2024] VSC 584 (both decisions of Harris J) questions of law arose regarding the jurisdiction of the Victorian Civil and Administrative Tribunal, on the basis that if the “Commonwealth” was party to the dispute for the purposes of s 75(iii) of the Constitution, the Tribunal would lack jurisdiction to determine the dispute.

In An, Harris J accepted that “Commonwealth” could capture a corporation which is an agency or instrumentality of the Commonwealth ([24]), having regard to the characteristics of that corporation demonstrated in the establishing legislation ([25]). Those characteristics included (a) the nature of the activities undertaken and (b) the legal relationship between the entity and the Commonwealth executive, including degree of control ([27]–[28]).

The Australian Broadcasting Corporation (ABC), of course, is a statutory corporation constituted under the Australian Broadcasting Corporation Act 1983 (Cth) (ABC Act). From the outset her Honour adopted the view expressed in Re Copyright Act 1968 [1982] FCA 272 where the Full Court observed that broadcasting and television services were not, as it were, ordinary government functions: at 443 (Bowen CJ and Franki J), 456 (Sheppard J) ([39]–[40]). Nevertheless, the ABC Act also provided that the broadcasting functions were to be performed having regard to objectives distinct from private sector activity, such as the requirement to broadcast educational content and also programs contributing to national identity ([41]). In addition, the Act allowed the Minister to give directions to the ABC in the national interest ([65]) and the ABC was funded from consolidated revenue ([75]). Even so, the ABC had considerable independence from the executive in the composition of its Board, appointment of employees and the formulation of policy ([50]–[70]); further, it was not subject to audit by the Auditor-General ([74]).

Weighed evaluatively, Harris J concluded that the ABC was not the “Commonwealth” for the purposes of s 75(iii) in light of its overall independence ([81]). Of interest too, is the conclusion that the jurisdictional issue being raised did not mean the dispute was nevertheless a constitutional “matter” for the reasons given in Hanssen Pty Ltd v Owners of Strata Plan 58161 (as just discussed) from which a trial judge would not ordinarily depart ([106]–[108]).

In Albyn, Harris J also rejected the respondent’s objection to jurisdiction, applying the same evaluative test to the characteristics of Australia Post as constituted under the Australian Postal Corporation Act 1989 (Cth). The respondent relied on the fact that it carried out governmental functions and was subject to a significant degree of government direction and involvement ([35]). The applicant accepted this but submitted that it was important to consider the broader and non-governmental commercial operations of Australia Post ([64]).

In contrast to An, Harris J accepted that the provision of postal services, by dint of historical continuity and mandated universal delivery (regardless of commerciality), supported a governmental characterisation ([68]–[69]). Yet this only extended to the narrow band of statutorily “reserved” services; other services including parcels, courier services, newspapers, document exchange and bulk postage could be carried on commercially ([70]–[71]). Even so, it did not mean that these commercial functions were inherently non-governmental, since Australia Post could be a vehicle through which the Government had elected to pursue government business activity ([73], [76]). Hence, this tended to the view that Australia Post was ultimately a government instrumentality ([77]). This was also supported by the direct control by the executive over: the pricing of certain postage services ([88]); the payment of capital to the Commonwealth ([88]); appointment of directors to the Board ([91]); and the making of ministerial directions to the Australia Post Board ([100]). Australia Post, unlike the ABC, is also subject to audit by the Auditor-General ([101]); and also had some immunities from State and Territory laws (albeit not as extensive as those of the Crown) ([105]–[106]).

This all drove the conclusion that Australia Post was the “Commonwealth” in the sense of s 75(iii).

Australian Society of Otolaryngology Head and Neck Surgery Ltd v Australian Health Practitioner Regulation Agency [2024] FCA 995 (Perry J)

One case is mentioned as an illustration of the importance of the identification of constitutional “matters” under Ch III of the Constitution which arises from time to time. In this case, the representative body for specialist Otolaryngology Head and Neck surgeons (ENTs) sought declaratory relief from the Federal Court to the effect that practitioners being described as “otolaryngologist and facial plastic surgeons” would not violate the Health Practitioner Regulation National Law, as applied by the Health Practitioner Regulation National Law (ACT) Act 2010 (ACT). The respondent had opposed such labelling, contending that this would contravene the provisions in relation to restrictions on use of specialist titles and misleading advertising.

A significant jurisdictional issue that arose before Perry J was whether there was relevantly a “matter” for the purposes of ss 75 and 76 of the Constitution ([74]ff). In the absence of such a matter, being an “immediate right, duty or liability to be established by the determination of the Court”, the Court would be giving an advisory opinion without res judicata consequences ([77]–[78]). Justice Perry concluded that in the circumstances of the case there was no such matter rising to a justiciable controversy ([89]ff). It was unclear if there was even genuinely a dispute in the sense contended for in the declaratory language ([89]). Further, the declarations were framed in terms of hypothetical conduct by hypothetical members of a class of individuals, without specific facts against which the declarations could be tested ([90]). Nor would the Australian Health Practitioner Regulation Agency be the actual entity carrying out a prosecution for any breach of the National Law ([91]).

All this is to say that the identification of a justiciable “matter” in constitutional terms is a crucial prerequisite for the exercise of federal jurisdiction: for more see, eg, the recent discussion by the New South Wales Court of Appeal in Zurich Australian Insurance Ltd v CIMIC Group Ltd [2024] NSWCA 229 at [516]–[530].

G. Implied freedom of political communication

Faruqi v Hanson (evidence rulings) [2024] FCA 225 (Stewart J) and Faruqi v Hanson [2024] FCA 1264 (Stewart J)

I handed down final judgment in this proceeding last year. Senator Mehreen Faruqi alleged that Senator Pauline Hanson, by posting a tweet in terms that included telling her to “piss off back to Pakistan”, engaged in offensive, insulting, humiliating or intimidating conduct because of Senator Faruqi’s race, colour or national or ethnic origin that is unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) (RDA).

Two constitutional issues arose in the proceeding. The first was relatively minor and arose in the evidentiary rulings stage, regarding the means by which constitutional facts could be established. The purpose for establishing such constitutional facts was the second constitutional issue, namely Senator Hanson’s alternative defence that s 18C of the RDA was invalid for infringing upon the implied freedom of political communication. The Commonwealth Attorney-General intervened in the proceeding to defend the constitutionality of s 18C.

Proof of constitutional facts

In my earlier evidence ruling, I accepted the submissions of the Attorney-General that constitutional facts may be proved more flexibly than adjudicative facts, and that there is significant High Court dicta to the effect that the rules of evidence do not apply to proof of constitutional facts ([15]) (most recently in Vanderstock v Victoria [2023] HCA 30 at [153] (Kiefel CJ, Gageler and Gleeson JJ), [407] (Gordon J, dissenting)). In any event, the Full Court in Minister for Home Affairs v Lee [2021] FCAFC 89 at [51] held to the same effect, which I was bound to apply. I also noted that autobiographical affidavits could go towards establishing constitutional facts, being the effects of the experience of racism on individuals in society ([58]).

Constitutional challenge to s 18C

Senator Hanson contended that s 18C read with s 18D was constitutionally invalid for being in conflict with the implied freedom of political communication as recognised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and ensuing High Court authorities. This raised the question of the validity of the entirety of Pt IIA of the RDA, as the other provisions in that part all have a bearing on ss 18C and 18D ([308]).

The same question was decided in favour of constitutional validity by Hely J in Jones v Scully [2002] FCA 1080 at [239]–[240]. Senator Hanson accepted that to make out her contention she was required to persuade me that Hely J was plainly wrong, although I did bear in mind both the fact that the constitutional argument in Jones was made by an applicant without legal representation, as well as the development of the High Court’s implied freedom jurisprudence in the 22 years since Jones was decided, in coming to my own view on the question.

At the first stage of the inquiry, Senator Hanson submitted (and the Attorney-General accepted) that, as Hely J had found in Jones, Pt IIA effectively burdened the implied freedom, while Senator Faruqi submitted it did not ([322]). I accepted Senator Hanson’s submission that Australian political debate includes discourse that deliberately causes offence, can be exaggerated and angry, and commonly appeals to fear and prejudice, and that therefore restrictions on those forms of political communication effectively burden the implied freedom ([331]). However, I found that the burden is slight, with Pt IIA imposing a burden at the outer edges of political communication and only regulating the way certain ideas may be expressed ([332]). I also noted that a law can burden the implied freedom (the first stage of the inquiry), yet ultimately serve to enhance the freedom of communication by creating space for the participation of voices that might not otherwise be heard. I reasoned that that is a point relevant to the third inquiry whether the legislation is reasonably appropriate and adapted to serve a legitimate end ([328]).

On the second stage of the inquiry, I adopted the Attorney-General’s identified statutory purpose of Pt IIA to deter and eliminate, and thus protect members of the public from, racial hatred and discrimination ([342], [345]). That is consistent with what Hely J identified in Jones, and I did not understand there to be any serious dispute that that purpose is compatible with the system of representative and responsible government in that it does not impede the functioning of that system and all it entails ([346]).

In line with recent High Court authority (eg McCloy v New South Wales [2015] HCA 34, Brown v Tasmania [2017] HCA 43), the third stage of the inquiry involved three sub-inquiries which combine as an analytical tool for the assessment of whether the law is reasonably appropriate and adapted to serving a legitimate end ([348]). The first was relatively uncontroversial – there could be little doubt that there was a rational connection between Pt IIA and its purpose of deterring and eliminating racial hatred ([350]) and that therefore the law was suitable for its purpose.

On the second sub-inquiry, whether the law was necessary, Senator Hanson submitted that Pt IIA could achieve its purpose by simply excluding political communication from the ambit of the provision, and that this would be an alternative measure which was equally practicable in regard to its purpose but less restrictive of the freedom ([351], [354]). However, I concluded that given the slight burden that Pt IIA imposes, Senator Hanson’s alternative would not impose a “significantly” lesser burden, and further that part of the purpose of Pt IIA was to protect the public from racial discrimination in the political space, in order to prevent such conduct limiting one’s ability to participate freely in political communication ([355]); indeed, both Senator Faruqi’s evidence and the expert evidence in the case indicated that the kind of conduct proscribed by Pt IIA could restrict the ability of people to engage in political communication ([356]–[357]). As such, the necessity inquiry was satisfied ([360]).

Finally, the third sub-inquiry concerned whether the law was adequate in its balance, which is satisfied unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom ([361]). I accepted the Attorney-General’s submissions on this point, which emphasised the importance of Pt IIA’s proscription of harmful racist conduct, given that racial vilification and discrimination remains a real problem in Australia, as borne out in numerous reports from various Royal Commissions and Parliamentary Inquiries over the years ([363]ff), and that such vilification has harmful effects at both individual and societal levels, which was established by the evidence in the case ([369]). Further, the importance of the objects pursued by ss 18C and 18D were reinforced by the fact that many other jurisdictions have enacted legislation aimed at the same mischief ([372]), while the object pursued by PT IIA also arises from Australia’s ratification of the 1965 Convention on the Elimination of all Forms of Racial Discrimination, indicating the importance of the object on the international plane ([373]).

I also accepted the Attorney-General’s submissions as to the nature and extent of the burden, which emphasised that Pt IIA does not prohibit people from expressing ideas or having beliefs, but rather regulates the effects of conduct ([375]), and that further, contrary to the submissions of Senator Hanson, the terms of Pt IIA are not so uncertain or vague as to render them inadequate in their balance. The reasoning in Brown which discussed notions of vagueness and uncertainty had to be understood in the specific statutory context dealt with there, and it is clear from Brown that vagueness or uncertainty is not otherwise a free-floating criterion of validity in Australia, unlike in the United States ([377]).

As such, I concluded that Pt IIA is reasonably appropriate and adapted to serving the legitimate end of deterring and eliminating racial hatred and discrimination. In the result, I was not satisfied that Hely J was plainly wrong in Jones, and I agreed with his Honour’s conclusion that Pt IIA does not infringe the implied freedom of political communication and is not unconstitutional. I note that a notice of appeal from my decision has been filed. The appeal will likely be heard by the Full Court in its August sittings this year.

The Game Meats Company of Australia v Farm Transparency International Ltd [2024] FCA 1455 (Snaden J)

Later last year, Snaden J heard another case raising issues regarding the implied freedom, albeit in a less direct way. Members of an NGO called “Farm Transparency International”, whose objective it is to educate members of the public about matters of animal exploitation at commercial slaughter operations, attended an abattoir in Eurobin, Victoria on several occasions. On each occasion those persons installed and later retrieved covert video recording equipment. It was not in contest that they were trespassing. The footage obtained depicted what the NGO described as instances of animal cruelty. The footage was shared with Channel Seven and published on the internet.

The applicant, the owner of the abattoir, sought injunctions to remove the footage from the internet, which were granted. The owner then sought permanent injunctive relief and other orders for payment. The respondent relied on the implied freedom of political communication to resist the applicant’s case for permanent injunctive relief. However, Snaden J concluded that the applicant was not entitled to that relief in any event; consequently, the constitutional issue did not fall for determination ([219]). Nevertheless, his Honour made some observations regarding the implied freedom. He noted that the respondent maintained that the rules of equity were required to conform to the Constitution, and that they argued injunctive relief in exercise of the equitable jurisdiction of the Court could not be exercised in a way which would be constitutionally impermissible if attempted by legislative or executive action ([222]).

However, his Honour rejected the notion that, if an entitlement to injunctive relief in tort or any other cause of action arose, there would be anything in the Constitution which would prevent that course. The power of the court was not incompatible with representative democracy established in the Constitution. He accepted the applicant’s submissions to the contrary that injunctions would not pose any real or substantial burden on the respondent’s ability to engage in political discourse regarding its areas of interest, being animal rights. The respondent could have had recourse to materials obtained without surreptitious trespass to make its case. Had it been necessary to do so, Snaden J would have rejected the constitutional defence ([223]–[225]).

Howard v Code of Conduct Panel [2024] TASSC 64 (Blow CJ)

The applicant, the mayor of Dorset in Tasmania, applied for judicial review of two decisions by the respondent in which it was determined that the applicant had breached the Council’s Code of Conduct provisions or engaged in conduct with the potential to bring the Council into disrepute.

The challenge was on the basis that the applicant’s impugned conduct was protected by the implied freedom of political communication. The conduct in question included a letter to the editor of a newspaper in response to an article published concerning the financial affairs of the Council and words spoken by the applicant at a council meeting to a member of the public. In considering whether provisions in the Local Government Act 1993 (Tas) relating to codes of conduct for councillors (ss 28S(1)(f) and (g)) breached the implied freedom, Blow CJ focused on whether those provisions effectively burdened the freedom of communication on government and political matters. This involved considering matters of relevance to the system of representative and responsible government at a federal level ([30]).

Following Wotton v Queensland [2012] HCA 2, the Chief Justice observed that the implied limitation applies to statutes, but not to the exercise of statutory power pursuant to statutes ([23]). While provisions of the Act might lead to the creation of codes of conduct imposing restrictions on the matter or form of a political communication, neither provision itself burdens political communication ([32]).

Furthermore it was not established how provisions concerning the behaviour of councillors would have any significance in relation to federal politics, thereby “bear(ing) on the choice that the people have to make in federal elections or in voting to amend the Constitution” or on “their evaluation of the performance of federal Ministers and their departments” as the High Court noted in Lange at 571 ([33]).

The case is another example of how the implied freedom operates as a limitation on legislative power but does not confer private rights.

H. Melbourne Corporation principle

Briefly stated, the Melbourne Corporation principle is that limits on the scope of express Commonwealth legislative powers are implied from the federal character of the Constitution. The limits are, or may include, that the Commonwealth may not discriminate against the States, or a particular State, and it may not exercise its powers so as to threaten the continued existence of the States or their capacity to function. Thus, the legislative powers of the Commonwealth “cannot be exercised to destroy or curtail the existence of the States or their continuing to function as such”: see Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 227 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), referring to Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 56, 60 (Latham CJ), 66 (Rich J), 74 (Starke J) and 82 (Dixon J).

Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCA 317 (Horan J)

Background

This case was the most salient exploration of the Melbourne Corporation principle in 2024 at the level of the State, Territory and Federal courts. The key constitutional issue was whether restrictions in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) on the Victorian State Secretary to the Department of Energy, Environment and Climate Action’s ability to perform statutory functions under the Forests Act 1958 (Vic) offend the principle. Although appealed in totality (see [2024] FCAFC 134), the constitutional point was not pressed on appeal and the Full Court otherwise upheld the primary judge on all grounds.

The factual background is topical as matter of environmental law. The Secretary intended to conduct planned fuel management burns in Strathbogie State Forest pursuant to the Victorian Government’s bushfire risk management program. The applicant contended that the planned burns involved a “controlled action” under the EPBC Act on the basis that they were likely to have a significant impact on the Southern Greater Glider, a marsupial animal listed as endangered under the Act. Accordingly, the applicant contended that the burns required the approval of the Commonwealth Minister for the Environment under Pt 9 of the EPBC Act in the absence of which the applicant was entitled to an injunction to prevent the Secretary from carrying out the burns. There was no dispute that the areas marked for burning included habitat suitable for the Glider, and that some were likely to be in situ.

The proceeding (and the appeal referred to above) turned principally on the impact that the planned burns would have on the Glider and whether any exemptions applied under the EPBC Act ([4]). However, the Secretary as part of its defence raised a constitutional argument – that the application of s 18(3) of the EPBC Act to the functions and activities of the Secretary under s 62(2) of the State Forests Act, or to the conduct of the planned burns, offended the Melbourne Corporation principle and was to that extent invalid ([4(c)]. The Attorney-General of Victoria intervened under s 78A of the Judiciary Act 1903 (Cth) to make submissions in support of the Secretary’s Melbourne Corporation defence ([7]).

Section 18(3) of the Commonwealth EPBC Act provides:

Endangered species

(3) A person must not take an action that:

(a) has or will have a significant impact on a listed threatened species included in the endangered category; or

(b) is likely to have a significant impact on a listed threatened species included in the endangered category.

Civil penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

Section 62(2) of the State Forests Act provides:

(2) Despite anything to the contrary in any other Act or law, the Secretary must carry out proper and sufficient work in State forests, national parks and on protected public land—

(a) for the immediate prevention and suppression of fire; and

(b) for the planned prevention of fire.

Insofar as fuel management burns were said to be part of the performance by the Secretary of their duties under s 62(2) and more broadly a duty to protect lives and property in Victoria, the efficacy in a factual sense of such burns was not in dispute ([7]).

Applicant’s case

The applicant submitted that s 18(3) imposed a minimal burden on the State as it constituted a “procedural requirement to obtain approval rather than an absolute prohibition on planned burning”, such that the continuing function of the State as a polity was not affected. In any event, the applicant contended that s 18(3) could not be triggered by actions undertaken for “the immediate prevention and suppression of fire under s 62(2)(a)” and that planned burns under s 62(2)(b) by contrast involved sufficient time for the action to be referred for approval to the Commonwealth. It was therefore a minimal burden falling short of constitutional invalidity.

State’s case

At trial the Secretary relied on the submissions made by the Attorney-General in relation to the constitutional point. The Attorney-General identified that s 18(3) did not impose a special disability or burden on the State, but that the provision infringed the Melbourne Corporation principle in its application to the fire-related works envisaged by the Secretary under s 62(2). The provision “curtail[ed] the exercise of an essential function of the State government”, since planned burning in discharge of s 62(2) was “an important aspect of the manner in which the State protects against loss or life and property caused by bushfires”. Section 18(3) could not be characterised as a mere procedural requirement, with Pt 9 of the EPBC Act having an extensive regime for exemptions of specified persons or excepted actions. “The fundamental purpose of a body politic is to maintain peace and order and to protect its people from harm”, and the States in a federation had principal responsibility for doing this vis-à-vis bushfires and other natural disasters.

Decision

Justice Horan concluded that s 18(3) of the EPBC Act validly applied to the Secretary in the conduct of works for the prevention of fire including fuel reduction burns ([498]). In his view, it was “doubtful that the conduct by the Secretary of works for the planned prevention of fire, including planned burning, in State forests, national parks and on protected public land can properly be characterised as a ‘core constitutional function’ of the State” ([494]). While the EPBC Act involved a substantial measure of Commonwealth control over whether and how hazard reduction actions took place ([499]), it could not amount to an “interference with the capacity of the State to perform its constitutional or governmental functions” ([500]). His Honour drew (at [501]) from the majority’s statement in Western Australia v Commonwealth (1995) 158 CLR 373 at 477 that:

If the power prima facie available to support a Commonwealth law is such that the law may govern a particular act, matter or thing, the fact that a State exercises or has been accustomed to exercise legislative or executive power to govern the same act, matter or thing does not establish either discrimination against the State or an impermissible interference with the State's performance of its constitutional functions.

Although the duty in s 62(2)(b) arose in the general context of protection of people and property in Victoria, the immediate context of the duty was “in relation to the responsibility of the State for public land from which there might arise a risk of fire impacting on lives and property, for example, in adjoining lands” ([495]). Even if maintenance of peace and order was an essential function of State government, this was not an exclusive function ([496]). To say that the State had primacy in one area was redolent of the discredited reserved powers doctrine ([497]). The key question was therefore what the effect of the Commonwealth law was, rather than who had principal responsibility for the protection of lives and property in Victoria ([497]).

In Horan J’s view, Western Australia v Commonwealth stood for a more general proposition that compliance with Commonwealth legislative requirements by a State did not offend the Melbourne Corporation principle if it did not “substantially impair the machinery of government through which the State discharges its essential functions and exercises its constitutional powers” ([505]). That is, infringement did not arise “simply because the State’s liberty to make choices about how to perform its functions or exercise its powers is constrained” ([505]).

No exceptions under the EPBC Act applied, including one general for emergency responses to bushfires ([492]). In his Honour’s view, it was unnecessary to determine to what extent s 18(3) might apply to actions taken by the State without permission but in the context of immediate prevention or suppression of fire – such a question would be best left for a future case ([493]).

Ross on behalf of the Cape York United #1 Claim Group v Queensland and Another (No 24) (Olkola Determination) [2024] FCA 740 (Mortimer CJ)

That is not to say a restriction on a State’s liberty to make choices about the exercise of its powers could not ever offend the Melbourne Corporation principle. This was something Mortimer CJ contemplated in the same year in the course of a native title consent determination, where there was uncertainty whether the “State of Queensland” being named as a respondent, rather than the relevant “Minister”, was non-compliant with the Native Title Act 1993 (Cth) ([53]ff). The Chief Justice endorsed the view that it was open to a State to bring a proceeding in any sense it chooses, whether it identifies as a Minister, a State, or another organ ([84]–[87]). To restrict these “significant and central political and legal choices” might very well be an interference with the exercise of State constitutional powers or capacities ([88]).

I. Section 61 executive power

Azimitabar v Commonwealth [2024] FCAFC 52 (Rangiah, Anderson and Button JJ)

This case concerned the executive authority to spend under s 61, but also addressed the broader conceptual question of whether it is a condition of the lawfulness of executive action that any underlying expenditure of public monies be lawful. It will likely be recalled that the first instance proceeding ([2023] FCA 760) was discussed by Justice Walker in last year’s edition of this presentation.

Essentially, a ministerial delegate purported to approve certain hotels as places of immigration detention in reliance on the definition of “immigration detention” in s 5(1)(b)(v) of the Migration Act. The provision stated that “immigration detention” meant being held by, or on behalf of, an officer in “another place approved by the Minister in writing”. The Commonwealth consequently expended monies on maintaining those hotels as places of immigration detention. The appellant was a person who had been held in two such hotels – the Mantra Bell City Hotel and the Park Hotel, both in Victoria. He challenged the lawfulness of this detention on the basis that there was no power to detain him other than in a place constituting “immigration detention”, and that the hotels were not such places.

Part of the appellant’s case at first instance was that the Act did not authorise the Commonwealth to contract and spend public monies on creating and operating the hotels as places of immigration detention, and that s 61 of the Constitution did not have this effect. Consequently, he argued that his detention was unlawful. The primary judge concluded to the contrary: where expenditure is not expressly authorised by legislation, s 61 of the Constitution operates to authorise the expenditure when it is “reasonably incidental” to the execution and maintenance of a statute ([128]). The point was taken up again on appeal.

The Full Court held that the primary judge did not err in concluding that the appellant’s detention was authorised, even if the expenditure on the hotels may not have been. In this sense, the appellant’s argument that the lawfulness of a decision is tied to the lawfulness of an underlying monetary appropriation was rejected ([88], [126]). As a result, it was not necessary to explore whether s 61 authorised the expenditure ([88]). While this case does directly concern the scope of s 61, it does confirm that the lawfulness of executive action must always be considered on its own statutory terms, rather than looking to external factors such as the lawfulness of expenditure ([126]).

J. Section 51 – Heads of legislative power

Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (Bromwich J)

Background

This case relevantly concerned the constitutional validity of the gender identity discrimination provisions in the Sex Discrimination Act 1984 (Cth) (SDA). The applicant, Roxanne Tickle, a transgender woman whose female sex is recognised by an official updated birth certificate, was prevented from using a social media application (the Giggle App) that was marketed for social communication between women. Ms Tickle subsequently sued the owner of the Giggle App, Giggle for Girls Pty Ltd (Giggle), and its CEO, Sally Grover (the respondents) for alleged unlawful gender identity discrimination in the provision of services, contrary to s 22 of the SDA. She alleged that the respondents imposed an unlawful condition on access to the app, namely that a participant be a cisgender woman or be determined by the respondents as having cisgendered female physical characteristics.

In substance, the respondents denied that any unlawful gender identity discrimination took place, arguing that an individual’s sex is unchangeable from birth and therefore that any discrimination against Ms Tickle was on the basis of her sex (which the respondents considered to be male), not her gender identity. Justice Bromwich found that those arguments conflicted with longstanding law as to how sex should be understood in the SDA as well as the gender identity provisions of the SDA. The evidence supported the conclusion that indirect gender identity discrimination had taken place, as Ms Tickle was excluded from the use of the Giggle App because she did not look sufficiently female, according to the respondents.

The respondents also raised two constitutional questions:

(1) Whether s 22 of the SDA, read with s 5B, was beyond the scope of Commonwealth legislative power, to the extent that it prohibited gender identity discrimination; and

(2) Whether s 24 of the Births, Deaths and Marriages Registration Act 2003 (Qld) (BDMRA) (the provision allowing Ms Tickle to change her registered sex) was invalid for inconsistency with the SDA under s 109 of the Constitution.

Part II of the SDA Act prohibits “discrimination” against people in various contexts on a variety of different grounds. Discrimination against a person on grounds of, relevantly, their sex or gender identity in providing services or making facilities available is rendered unlawful by s 22.

Section 5 provides that discrimination on grounds of sex occurs where a person is discriminated against by reason of their sex, a characteristic that appertains generally to persons of their sex or a characteristic that is generally imputed to persons of their sex. “Sex” is not defined.

Section s 5B provides that discrimination on grounds of gender identity occurs where a person is discriminated against by reason of their gender identity, a characteristic that appertains generally to persons who have the same gender identity as them or a characteristic that is generally imputed to persons who have the same gender identity as them. “Gender identity” means “the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

For both ss 5 and 5B, discrimination occurs if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantage in persons who have the same sex or gender identity as the aggrieved person (see ss 5(2) and 5B(2)). This is referred to as “indirect” discrimination. Section 7B provides that discrimination does not occur if the imposition of the relevant condition requirement of practice is “reasonable in the circumstances”. Also, s 7D provides that a person may take “special measures” for the purpose of achieving substantive equality between men and women or people who have different gender identities.

The Sex Discrimination Commissioner was granted leave under s 46PV of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to appear as amicus curiae and make submissions on four topics, which included both of the constitutional issues. Ms Tickle largely adopted the Commissioner’s submissions with little addition, while the respondents opposed them ([13]–[15]).

For obvious reasons, the case was pleaded and advanced on the basis of gender identity discrimination and not sex discrimination. Justice Bromwich found on the facts that there was no direct discrimination against Ms Tickle on the basis of her being a transgender woman because it was not established that Ms Grover knew that about Ms Tickle (undoubtedly, however, had Ms Grover known she would have excluded Ms Tickle for that reason) ([131]). Rather, there was indirect discrimination by the imposition of a condition that an applicant for access appear to be a cisgender female in photographs required to be submitted to be given access ([134]).

Constitutional challenge to the SDA

While the amended s 78B notice filed by the respondents actually challenged the validity of s 5B, Bromwich J thought it appropriate to deal with the constitutional challenge in the manner that it arose on the facts, which was whether s 22, read with s 5B, went beyond Commonwealth legislative power to the extent that it prohibited discrimination on the ground of gender identity in the provision of services ([152]). The Commissioner argued that s 22 was supported by s 51(xx) (the trading aspect of the corporations power) and s 51(xxix) (the external affairs power).

External affairs power

The external affairs power supports legislation that is reasonably capable of being considered appropriate and adapted to implementing Australia’s obligations under international instruments: Commonwealth v Tasmania (1983) 158 CLR 1 at 138 (Mason J), 172 (Murphy J), 231 (Brennan J), 259 (Deane J).

The Commissioner contended that s 22 read with s 5B was an enactment of Australia’s obligations under the 1979 Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), or, alternatively, as an enactment of Australia’s obligations under Art 26 of the 1966 International Covenant on Civil and Political Rights (ICCPR). The Commissioner contended that the word “women” in CEDAW includes transgender women and therefore s 22 read with s 5B was an enactment of the obligation in CEDAW to prohibit discrimination against women.

The respondents contended that CEDAW grants protections only to women, and that “women” in CEDAW means adults born of the female sex. The respondents further argued that gender identity (as defined in s 4 of the SDA) was too nebulous a concept to form a “political class”, which they asserted was necessary for it to be covered by ICCPR Art 26.

Regarding CEDAW, Bromwich J identified an anterior question, which was whether CEDAW was exclusively concerned with discrimination that places women in a less favourable position than men, and therefore did not address discrimination against a group of women (transgender women) that places them in a less favourable position than other women ([163]). His Honour concluded that CEDAW did not support the prohibition on gender identity discrimination to the extent such discrimination involved placing Ms Tickle in the same position as men, not a less favourable one. Justice Bromwich considered the reasoning of the Full Court in AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (per Kenny J, Gyles J agreeing) to be binding authority on the interpretation of this aspect of CEDAW, and correct in any event. His Honour found that the definition of discrimination against women in CEDAW Art 1 was concerned with sex discrimination against women, and that aside from specific protections for pregnant women, CEDAW does not support a prohibition on discrimination which results in a particular group of women being treated less favourably than other women ([178]). As such, it was not necessary to consider the broader question raised by the Commissioner whether references to “women” in CEDAW included transgender women ([180]).

As to the ICCPR, Bromwich J held that Art 26 includes a non-exhaustive list of personal characteristics protected by obligations to ensure equality under law and prohibit discrimination and found that it was intended to address kinds of discrimination that may change over time or vary depending on the situation of States Parties ([184]). His Honour found that gender identity was an “other status” subject to the non-discrimination as it was substantial yet potentially changeable, and also even less vague than some of the defined categories such as “political or other opinion”. Furthermore, Bromwich J relied on several Human Rights Committee communications which affirmed the view that gender identity was an “other status” protected under Art 26 ([186]–[188]). Thus, the prohibition on gender identity discrimination in the SDA is supported by the external affairs power in reliance on CEDAW.

Corporations power

The Commissioner also contended that s 22 was supported by the s 51(xx) of the Constitution, while the respondents argued that Giggle was not, on the evidence, a trading corporation, and that there was therefore no constitutional foundation for the application of the provisions to it or its director and officer, Ms Grover.

Justice Bromwich identified the characterisation question as being whether Giggle’s activities formed a sufficiently significant proportion of its overall activities as to merit a description as a trading corporation ([190]). The evidence established that income was received by Giggle and that profit and loss statements had been prepared by accountants for Giggle which indicated (modest) trading profits made from sales (of in-app purchases in the Giggle App) for the preceding four financial years. On the basis of the profit and loss statements alone, Bromwich J concluded that Giggle was properly characterised as a trading corporation ([192]). His Honour also made other factual findings supporting a conclusion that Giggle was a trading corporation ([193]–[196]).

In the result, the trading corporations power supports the relevant provisions of the SDA in their application to Giggle.

Constitutional challenge to the BDMRA

Part 4 (ss 22 to 24) of the BDMRA, dealt with changes to registered sex. Section 22 provided the change to a person’s sex after sexual reassignment surgery may be noted on the person’s entry in the register of births. Equivalent recognition was given to a reassignment of sex entered in a register maintained under a corresponding law of another State. A person who had such a reassignment entered under the BDMRA was, expressly, a person of the sex as reassigned: s 24(4). Although the BDMRA was repealed after the hearing of the proceeding while judgment was reserved, its replacement preserved the substance of the impugned provisions (see Births, Deaths and Marriages Registration Act 2023 (Qld) s 142).

The respondents argued that the provisions of the BDMRA dealing with changes to registered sex were inconsistent with the SDA and therefore invalid by operation of s 109 of the Constitution. That was said to be because the legal construct of “female” in s 24 of the BDMRA (which includes a person who has sexual reassignment registered) directly clashed with the provisions of the SDA.

Justice Bromwich agreed with and adopted the submissions of the Commissioner. His Honour found that there was no direct inconsistency given that the SDA did not define the word sex, and that prior definitions of “man” and “woman” in the SDA were repealed so that they would carry their ordinary meaning, which was informed by State and Territory legislation. Further, Bromwich J found that there was no indirect inconsistency as even if the SDA had created its own meaning of “sex” or “woman”, it could only intend to define those concepts for discrimination law and would not deal with the register and making of entries upon it, which was the concern of the BDMRA. While the BDMRA provisions may have an incidental impact upon the SDA gender identity provisions, it did not in terms address the matters with which the SDA is concerned ([202]).

As such, the respondents’ constitutional challenge to the BDMRA also failed.

Appeal

The respondents have filed a notice of appeal raising the same constitutional challenges to the SDA but not to the BDMRA. Ms Tickle has sought to file a cross-appeal that contends, amongst other things, that there was direct discrimination against her by reasons of her gender identity. No constitutional issues are raised by the proposed cross-appeal. The appeal is likely to be heard in the August sittings of the Full Court.

Peers v Fletcher [2024] VSC 427 (Watson J); Fidge v Medical Board of Australia [2024] VSC 471 (Quigley J)

These two cases concerned challenges to the validity of the Health Practitioner Regulation National Law, which is a uniform law scheme regulating medical practitioners in participating states, each of which has applied the national law as a law of their state through state legislation.

In Peers, the plaintiff submitted that the National Law was invalid for lack of Commonwealth legislative power, in order to set aside charges laid against her for violations of the National Law. This was on the basis that the States had not referred their powers to the Commonwealth under s 51(xxxvii) of the Constitution, ie matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States. She argued that “the States must not exercise their respective powers in a way which creates national consistency or to put it another way, unless they refer their powers to the Commonwealth, they must exercise their powers in such a way that there is inconsistency between their respective regimes”.

Justice Watson concluded “[t]here is nothing in this proposition” ([18]). No cases or constitutional text admitted this construction. The mere existence of the referral mechanism in s 51(xxxvii) did not mean that there was an implied limitation on the power of the States to enact cooperative legislation. Dr Peers sought to distinguish between cooperation between the States and Commonwealth and cooperation between States (the former being permissible, but the latter not). This was also rejected ([21]).

In Fidge, the Medical Board of Australia had imposed conditions on the plaintiff’s registration as a Health Practitioner, after he had made social media comments regarding the COVID-19 vaccine. Dr Fidge appealed this decision to VCAT, where the Tribunal substituted the board’s decision with a formal caution but refused Dr Fidge’s application to refer several questions of law to the Supreme Court. Dr Fidge appealed this decision, raising a number of constitutional arguments including that his services had been unlawfully “conscripted” by the Victorian and Australian governments contrary to s 51(xxiiiA) (ie the provision of, inter alia, “medical and dental services (but not so as to authorize any form of civil conscription)”), that the National Law was unconstitutional and invalid, and that VCAT failed to consider the implied freedom of political communication.

On the operation of s 51(xxiiA), Quigley J noted that the provision imposes no constraints on VCAT’s exercise of power. The head of legislative power for the Commonwealth does not operate to confer a personal right to not be conscripted by a State entity. Nor could it be said that s 178 of the National Law is invalid for inconsistency with s 51(xxiiA), as the National Law was State legislation ([82]–[83]). In any event, Dr Fidge failed to establish that he had been civilly conscripted for the Victorian Government’s COVID-19 vaccination programme ([87]).

On the constitutionality of the National Law more broadly, the Victorian Government had plenary power to make laws for Victoria, and the legislative arrangements made pursuant to cooperative federalism were not invalid, applying the reasoning in Peers ([137]–[138]). Finally, Quigley J held that even if the National Law burdened the freedom of communication about government matters, it was found to have a legitimate purpose in ensuring a national scheme for the regulation of health practitioners for the protection of the public, and the law was reasonably appropriate and adapted to serving that end by virtue of protections inherent in the power of the Board to take action ([100]–[108]).

Questions of Law Reserved (Nos 1 and 2 of 2023) (R v TB) [2024] SASCA 82 (Livesey A-CJ, Doyle and David JJA)

This appeal concerned the admissibility of evidence obtained by the Australian Federal Police (AFP) of communications made through the use of an encrypted communications application called “AN0M” that had been installed on a number of mobile devices. The prosecution had sought to rely on the evidence of these communications in criminal proceedings against the defendants. By way of background, the defendants were jointly charged with participating in a criminal organisation (the Comancheros) contrary to s 83E(1) of the Criminal Law Consolidation Act 1935 (SA) and various offences under the Firearms Act 2015 (SA).

Three of the questions of law reserved for the Court concerned whether certain of the offences with which the defendants had been charged were “State offences having a federal aspect”, within the meaning of ss 4AA(1)(a), (c) and/or (d) of the Australian Federal Police Act 1979 (Cth) (AFP Act). If this was the case, the evidence of the communications made using the AN0M application would have been rendered admissible by being excluded from the general inadmissibility of “protected information” under s 45(3) of the Surveillance Devices Act 2004 (Cth) (SD Act) ([3]). Only one of paras (a), (c) or (d) needed to be engaged to render the evidence admissible. The matter was decided on the basis of para (d) – that an investigation by the AFP of a State offence would be “incidental” to the investigation by the AFP of an offence in a Territory or of the Commonwealth.

The Court held that the word “incidental” in s 4AA(1)(d) drew expressly upon the authorities governing the scope of the Commonwealth’s express incidental legislative power in s 51(xxxix) of the Constitution, and that those authorities provided that s 51(xxxix) extends to all matters attending to or arising in the exercise of the executive power in s 61 to execute and maintain the laws of the Commonwealth ([345], [348], [354], [360]). The Court held that, in line with the authorities on s 51(xxxix), the word “incidental” did not require any state investigation to be necessary for, or conducive to the success of, the federal investigation; it was sufficient for merely a link or connection between the facts or subject matter to exist ([354], [361]).

On this view, s 4AA(1)(d) was plainly satisfied, as the AFP had been investigating Commonwealth offences involving importation and trafficking of controlled drugs and money laundering, and the suspicion of the commission of State offences by the defendants arose in the course of this existing AFP investigation ([363]ff).

K. Love v Commonwealth-related issues

The legal understanding of the term “aliens” in s 51(xix) of the Constitution underwent significant development following the decision of a majority of the High Court in Love v Commonwealth [2020] HCA 3. However, in addition to its immediate consequence for the scope of the aliens power, the Love decision has also in subsequent years prompted constitutional arguments, often novel, tied to the identification of and connection to Indigenous societies in Australia. That continued to be the case in 2024.

Kapeli v Secretary, Department of Home Affairs [2024] FCA 1246 (O’Bryan J)

The applicant, Mr Samiuela Kapeli, sought a writ of habeas corpus under s 23 of the Federal Court of Australia Act 1976 (Cth) requiring the Secretary of the Department of Home Affairs and the Minister for Home Affairs to release him from immigration detention. Mr Kapeli was detained pursuant to ss 189 and 196 of the Migration Act.

Mr Kapeli was born in Tonga and had Tongan citizenship. He obtained a permanent partner visa after arrival in Australia, marrying an individual identifying as an Aboriginal woman from the Kuku Yalanji Tribe in Far North Queensland. Following a conviction for assault occasioning actual bodily harm, the partner visa was mandatorily cancelled under s 501(3A) of the Act, and the applicant was placed in immigration detention. Around a month later, he was released, but following a further conviction for assault occasioning actual bodily harm he was placed in immigration detention once again after release from Cessnock Correctional Centre.

Two arguments were advanced, both based on recent developments in constitutional law. First, Mr Kapeli asserted he was not an “alien” within the meaning of s 51(xix) of the Constitution by reason of being an Aboriginal Australian, based on the reasoning in Love; consequently, s 189 of the Act was incapable of being applicable to him. Secondly, he argued there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future, ie the NZYQ limit was engaged, because of the need for continued investigations into whether he was an Aboriginal Australian. Mr Kapeli claimed to be an Aboriginal Australian because he identified as an Aboriginal man, having been initiated into the Worimi Tribe of the Forster/Tuncurry region of New South Wales, and that he had been recognised and accepted as Aboriginal by the Tribe, including its elders. He disputed that biological descent was necessary in such a case for the principle in Love to apply. But for these arguments, it was not in dispute that Mr Kapeli was an unlawful non-citizen without a visa.

The respondents’ position was that Mr Kapeli was not an Aboriginal Australian in the relevant sense. Specifically, the officer of the Department responsible for the detention decision relied on advice received from the Australian Government Solicitor to the effect that Mr Kapeli did not satisfy the first limb of the “tripartite test” for membership of an Aboriginal group of people stated by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1. That limb required biological descent from an Aboriginal member of the group. Nevertheless, it was accepted that Mr Kapeli met the second limb in subjectively identifying as a member of the Worimi Tribe, and that it was not open to the Department to reasonably suspect that Mr Kapeli did not meet the third limb (recognition of Mr Kapeli’s membership by the elders of the Worimi Tribe).

Justice O’Bryan dismissed the application. His Honour’s view was that the principle in Love operated by reference to the tripartite test in Mabo, necessarily requiring biological descent ([12]). Nothing in the statements of the majority in Love tended to the contrary; in fact they indicated that biological descent was a fundamental premise ([23]). On the evidence before the Court, Mr Kapeli was not, on the balance of probabilities, biologically descended from Aboriginal people, nor did Mr Kapeli ever claim to have had such ancestry ([12]), preferring to say that he did not know his ancestry ([98]). It was not sufficient for Mr Kapeli to rely on his identification as, and acceptance into, the Worimi Tribe to overcome this threshold constraint. To do so would constitute an extension to what had been said in Love ([232]). In any event, the NZYQ argument was inapplicable in the circumstances as the Minister had yet to determine whether to revoke the cancellation decision in effect at the time ([12]).

Applying Love, O’Bryan J stated “s 189 must be disapplied in so far as it purports to apply to Aboriginal people” ([60]). That, however, was qualified by Thoms v Commonwealth [2022] HCA 20, where s 189(1) was held to validly empower an officer to detain a person in immigration detention where that officer reasonably suspects the person to be a non-Aboriginal unlawful non-citizen, even if it turns out that they are indeed an Aboriginal person per the tripartite test ([61]). In the instant case, a reasonable officer would have concluded that Mr Kapeli was not such an Aboriginal person, particularly where he had answered “no” to the question of biological descent on the relevant forms ([113], [148]). The case reinforces the strict boundaries set by the biological descent requirement in Love.

This case’s significance further lies in being the first decision to consider the specific question of whether the biological descent requirement could be overcome through “adoption under the traditional laws and customs of an Aboriginal clan, group or community” ([272]). That had to be answered in the negative, particularly where the affirmative would conflict with the principle that a non-citizen could remain an alien notwithstanding their absorption into the Australian community ([282]).

Anderson v Indigenous Land and Sea Corporation [2024] NSWCA 9 (Kirk JA, Stern JA, Simpson AJA)

This case arose outside of the migration context. The first appellant was a member of the Ghurrie clan and the second appellant his wife. The respondent was a federal statutory corporation established under the Aboriginal and Torres Strait Islander Act 2005 (Cth) (ATSI Act). The parties’ dispute concerned possession of two rural stations in New South Wales and Queensland. The respondent was the registered proprietor of both, whereas the appellants lived on the properties and claimed ownership.

The respondent had sought at first instance orders for possession or an injunction to restrain trespass by the appellants. The appellants raised various defences, and the first appellant filed a cross-claim for possession and rectification of the register. The primary judge, Griffiths AJ, granted the orders for possession and dismissed the cross-claim ([2022] NSWSC 1650).

On appeal, the appellants raised a multitude of arguments. One argument was that parts of the ATSI Act, and perhaps the Native Title Act, were not supported by s 51(xxvi) of the Constitution (ie, the race power) ([4]). What was said to be invalid was not precisely defined. Consequently, the Court treated it as a challenge going to the entirely of Pt 4A of the ATSI Act ([88]). The appellants in oral submissions requested the Court to determine if “Aboriginal and Torres Strait Islanders peoples are a distinct race of people as distinct from all other ethnic human groups from the various parts of the globe”; if they were not, then it was claimed the Commonwealth lacked legislative power to establish a corporation such as the respondent.

The Court concluded that as a legal matter the concept of “the people of any race” as said in s 51(xxvi) was well-settled by the High Court as extending to special laws for Aboriginal Australians ([95]). The appellants argued, however, that the position had shifted following Love on the basis that Aboriginal Australians were “neither aliens nor citizens” ([96]). However, the Court did not consider there to be anything in Love which had altered the well-understood scope of s 51(xxvi) – in fact, language found in the majority judgments indicated the contrary and that the race power applies to Aboriginal Australians as a race ([96]).

Special leave to appeal to the High Court was refused ([2024] HCASL 157).

L. Responsible government; electoral law

CEU22 v Minister for Home Affairs [2024] FCAFC 11 (Wigney, Thawley and Wheelahan JJ)

This case raised a constitutional issue regarding ss 64 and 65 of the Constitution which stemmed from the “multiple ministries” saga in 2022. Section 64 provides for the appointment by the Governor-General of officers – referred to as Ministers of State – to administer Departments of State. Section 65 governs the number of Ministers of State.

The then Minister for Home Affairs, the Hon Karen Andrews, decided to cancel the appellant’s visa in December 2021. However, in March and May 2021, the Hon Ben Morton MP and subsequently the Hon Scott Morrison MP had been appointed by the Governor-General “to administer” the Department of Home Affairs, which the appellant argued had impliedly terminated Ms Andrews’ appointment as Minister for Home Affairs. The appellant contended that s 64 of the Constitution required, by implication, that the office of Minister could only be occupied by a single person, and that therefore Ms Andrews could not validly exercise the power to cancel his visa under s 501(3)(b) of the Migration Act following the appointment of Mr Morton and then Mr Morrison.

The Full Court dismissed the appeal and held that it is permissible for more than one Minister to be appointed to administer a Department of State ([104]) and therefore that the appointment of a second minister would not impliedly revoke an earlier appointment ([107]). This followed from the recent endorsement (in obiter) by the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 at [24] (Kiefel CJ, Keane and Gleeson JJ) that more than one person may be appointed to administer a Department of State ([97]). The Full Court noted that the Constitution is framed so as to avoid inflexibility and to permit development and adaptability, which tended against the implied limitation contended for by the appellant.

The Full Court observed that the instrument appointing Mr Morrison to administer the Department of Home Affairs did not direct Mr Morrison to hold any office, and that the Governor-General was exercising only the power in s 64 with that appointment, despite the instrument referencing s 65 ([106]). As such, given that Mr Morrison was not appointed as “Minister for Home Affairs” but merely to administer the Department of Home Affairs, the Full Court concluded that there was no basis to infer that Ms Andrews’ appointment had been impliedly revoked ([107]).

The appellant sought special leave to appeal to the High Court which was refused on 8 August 2024 ([2024] HCASL 190).

Attorney-General (Cth) v Patrick [2024] FCAFC 126 (Rangiah, Moshinsky and Abraham JJ)

The question raised by this appeal was: where a person requests access to an official document of a Minister under the Freedom of Information Act 1982 (Cth) (FOI Act), at what point (or points) in time is it to be determined whether the document is an “official document of a Minister”?

Rex Patrick, a former Senator, had requested briefing materials and advice sent by the Attorney-General’s Department to the Department of Prime Minister and Cabinet in relation to the administration of the Community Sport Infrastructure Grant Program by the former Minister for Sport, the Hon Bridget McKenzie.

Although the case dealt principally with provisions of the FOI Act, a similar constitutional issue concerning s 64 of the Constitution as that in CEU22 arose because one ground alleged that the primary judge had erroneously construed an office of a Minister as a perpetual, ongoing entity occupied by different individuals over time. To the contrary, the appellant argued, the office of a Minister is connected to the specific person appointed as a Minister and ends upon the cessation of their appointment as a Minister. The Attorney-General argued that while in practice an FOI request to a former Minister may be treated as a request to the new Minister, in law there is no continuation of the Ministerial office, ie that successive Ministers hold different offices.

The Full Court held that the time for assessing whether a document is an “official document of a Minister” is the time that the request for access is made, and only that time ([65]). However, the Full Court considered it unnecessary to resolve whether Ministers occupy a continuing “office” or whether there is a separate “office” upon each appointment. The Full Court found that s 20 of the Acts Interpretation Act 1901 (Cth) was dispositive of the issue, which provides that references in general terms to the holder of an office includes all persons who for the time being hold or occupy the office or perform the duties of the office. As such, it was unnecessary to decide the constitutional issue, and preferable not to do so ([96]).

M. Section 109 inconsistency with State law

Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Bist v Cyan Stone Clydesdale Estate 1 Pty Ltd [2024] FCA 1108 (Kennett J)

This case concerned the interrelationship between the indefeasibility underpinning Torrens title in State legislation and the remedies available in Commonwealth trade practices legislation.

The applicants entered into a contract in December 2020 to buy a lot in a new housing development at Marsden Park. The vendors were the first to sixth respondents (the Cyan Stone parties). The lot did not exist at the time of the contract, and would only come into being once a plan of subdivision was registered sometime in the future.

In 2024, the applicants became aware that the vendors had transferred the whole of the land on which their lot was to be developed to the seventh respondent (Astro Fort) for $85.5 million. The applicants sought urgent interlocutory relief to prevent dealings with lots in the development, which turned on whether the applicants had a prima facie case for final relief vindicating their asserted property interests. A major issue was that under s 42 of the Real Property Act 1900 (NSW) (RPA), Astro Fort’s title to the relevant land was indefeasible except where an exception was made out. While Astro Fort knew or should have known that the land it acquired was already under contract, this did not rise to the level of the specified fraud exception, while neither knowing receipt nor any personal equity could assist the applicants.

The applicants instead alleged statutory unconscionability on the part of the respondents under ss 242, 247 or 239 of the Australian Consumer Law (ACL). While it was recognised that indefeasibility of title could bar any remedial orders made under the ACL that might require Astro Fort to convey the land, the applicants contended that the statutory unconscionability regime may “cover the field” and limit the remedial restrictions posed by the in personam doctrine. This relied on the operation of s 109 of the Constitution, whereby the remedial provisions in the Competition and Consumer Act 2010 (Cth) (CCA) would prevail over s 42 of the RPA and create new, statutory exceptions to indefeasibility. The submission drew support from comments in an article by the Hon William Gummow AC.

However, Kennett J did not accept this. The better view according to his Honour was that the ACL operates as an applied law regime in both State and federal jurisdictions, without intending to cover the field or displace State legislative regimes (as demonstrated in s 131C of the CCA, a savings provision for State laws) ([26]). Thus, his Honour concluded that “it will be very difficult for the applicants to succeed on a claim for relief under the ACL” where orders requiring Astro Fort to execute particular dealings with the land were sought ([27]).

* I gratefully acknowledge the inestimable research and scholarly assistance of Raihana Haidary, Seung Chan Rhee and Varun Rao, my Associates at the Court, in the preparation of this paper. Any errors are my own.