CONSTITUTIONAL CASES

As the Australian Government’s primary provider of constitutional advice and assistance, the Australian Government Solicitor has acted in numerous significant cases in the High Court. In recent years, this work has included the following:

Combet v Commonwealth: The High Court rejected a challenge to the expenditure from a departmental appropriation of money on advertisements to provide information about and promote the Government's workplace relations reforms.

XYZ v Commonwealth: The High Court upheld the validity of provisions in the Crimes Act 1914 (Cth) which create offences relating to sexual conduct against children committed overseas. The provisions were held to be within the external affairs power (s 51(xxix) of the Constitution).

Dalton v NSW Crime Commission: The High Court decided that s 76 of the Service and Execution of Process Act 1992 (Cth) validly authorised the inter-state service of a summons issued by a State tribunal performing investigative functions (the NSW Crime Commission). Section 76 was validly enacted under the service and execution of process power (s 51(xxiv) of the Constitution).

Theophanous v Commonwealth: The High Court upheld the validity of the forfeiture provisions in the Crimes (Superannuation Benefits) Act 1989 (Cth) in their application to the superannuation benefits of a former member of the Commonwealth Parliament convicted of a corruption offence. The Act did not contravene s 51(xxxi) of the Constitution (acquisition of property on just terms).

Koroitamana v Commonwealth: This case decided that the aliens power (s 51(xix) of the Constitution) extends to a child born in Australia whose parents are foreign nationals, even if the child has not acquired foreign nationality.

Vasiljkovic v Commonwealth: The High Court upheld the validity of administrative detention of a person under the Extradition Act 1988 (Cth) for the purposes of extradition.

Forge v ASIC & Commonwealth: Judgment is reserved in these proceedings in the High Court which involve a challenge based on Chapter III of the Constitution to the validity of the appointment of an acting judge to the NSW Supreme Court. A further issue concerns the validity of transitional provisions in the Corporations Act 2001 (Cth).

Work Choices challenges: Seven proceedings commenced in the High Court’s original jurisdiction raised numerous constitutional challenges to the validity of the amendments made to the Workplace Relations Act 1996 (Cth) by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The constitutional issues include the scope of the corporations power and the conciliation and arbitration power. The proceedings were heard together over 6 days in May 2006. Judgment is reserved.

APLA Ltd v Legal Services Commissioner (NSW): This judgment upheld the validity of Part 14 of the Legal Profession Regulation 2002 (NSW), which prohibits advertising by lawyers for personal injury claims. The grounds of challenge included the implied freedom of political communication, limits on legislative power said to arise from the rule of law and Chapter III of the Constitution in order to protect access to the courts and legal advice, section 92 of the Constitution (freedom of interstate trade, commerce and intercourse) and inconsistency under section 109 of the Constitution as the state prohibition was said to undermine various Commonwealth laws which create rights and liabilities and confer jurisdiction on courts.

Ruddock v Taylor: An action for false imprisonment was brought following High Court decisions including in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 which quashed administrative decisions to cancel the respondent’s visa.The High Court held that the action failed as the respondent had been lawfully detained under section 189 of the Migration Act 1958 (Cth) which requires detention of a person ‘reasonably suspected’of being an unlawful non-citizen.

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Ame: This judgment upheld the validity of the withdrawal of Australian citizenship from persons who became citizens of Papua New Guinea on the grant of independence in 1975 and held that those persons were ‘aliens’ within the meaning of section 51(xix) of the Constitution.

Air Link Pty Ltd v Paterson; Agtrack (NT) Pty Ltd v Hatfield: These appeals were heard together.The High Court held that where an action under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) had not been ‘brought’within the two-year limitation period prescribed by that Act, the right to bring an action was extinguished and state and territory laws that allow pleadings to be amended to add a time-barred cause of action could not be relied on.

Also see Constitutional law, Constitutional overview, and Machinery of government.