AGS conducts the Australian Government's constitutional litigation.

The Australian Government can become involved in constitutional litigation in either of 2 ways. First, the Government may be a party in its own right, where proceedings have been commenced by or against it. Second, the Commonwealth Attorney-General has a right to intervene on behalf of the Government in cases raising constitutional issues.

The Judiciary Act 1903 (Cth) requires parties in such cases to give the Attorney-General notice of the constitutional issues (under section 78B) to allow a decision to be made on intervention by each Attorney-General (under section 78A).

In relation to possible interventions, AGS's role includes considering notices given under the Judiciary Act and, in consultation with the Commonwealth Solicitor-General and other interested agencies, advising the AGD on whether the Attorney-General should intervene. This year AGS reviewed 259 notices given under s 78B of cases raising constitutional law issues.

The Attorney-General intervened under s 78A at the hearing of 9 cases in the High Court and 1 case in each of the Family Court, Victorian Supreme Court and Western Australian Court of Appeal and was a respondent to an appeal to the High Court where he had intervened in the court below.

AGS also advises the Australian Government on all submissions on constitutional law issues that are put to courts on behalf of Commonwealth agencies. This is to ensure that these submissions are accurate and apply Commonwealth constitutional policy consistently.

AGS maintains a uniquely qualified team of lawyers with extensive experience covering constitutional litigation, led by David Bennett QC. Senior members of the Constitutional Litigation Unit include Andrew Buckland, David Lewis and Gavin Loughton.

Some of the more significant matters argued in the High Court during 2010–11 were:

  • Haskins v Commonwealth and Nicholas v Commonwealth, which upheld the validity of the Military Justice (Interim Measures) Act (No 2) 2009 (Cth). The Interim Measures Act was enacted in response to the High Court's decision in Lane v Morrison (2009) 239 CLR 230 that the Australian Military Court was not validly created. Under the Interim Measures Act, disciplinary sanctions were imposed on members of the Defence Force corresponding to punishments which had been invalidly imposed by the Australian Military Court. The High Court held that the Interim Measures Act did not contravene Ch III of the Constitution or involve an acquisition of property to which s 51(xxxi) of the Constitution would apply.
  • Rowe v Electoral Commissioner & Commonwealth, which decided on amendments to the Commonwealth Electoral Act 1918 (Cth). It reduced the time available to enrol to vote after the issue of the writs for a federal election or to transfer enrolment were invalid as infringing the constitutional requirement that members of the Parliament be 'directly chosen by the people'.
  • Dickson v The Queen, which held that an offence under Victorian law of conspiracy to steal was, in its application to property belonging to the Commonwealth, invalid under s 109 of the Constitution by reason of inconsistency with a conspiracy offence in the Commonwealth Criminal Code.
  • Roy Morgan Research Pty Ltd v Commissioner of Taxation & Commonwealth Attorney-General, which raises the validity of the Commonwealth's superannuation guarantee legislation under s 51(ii) of the Constitution.
  • Momcilovic v The Queen, which raises issues under Ch III of the Constitution about the validity of the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and in particular the role of courts under the Charter. It also raises (following the judgment in Dickson v The Queen) further issues under s 109 of the Constitution about the concurrent operation of Commonwealth and State criminal laws (here, concerning laws which create offences of trafficking in drugs).
  • Queanbeyan City Council v ACTEW Corporation Ltd, which concerns the validity under s 90 of the Constitution (duties of excise) of charges imposed by the ACT on ACTEW under the Utilities (Network FacilitiesTax) Act 2006 (ACT) and the Water Resources Acts 1998 and 2007 (ACT). A threshold issue is whether the charges amount to the imposition of taxation.

This is an extract from the 2010–11 AGS annual report