Litigation notes No. 14

Number 14
29 November 2006

This issue

The Work Choices decision

Constitutional validity of acting judges

The external affairs power and child sex tourism offences

Forfeiture of superannuation benefits

The constitutional meaning of 'alien'

Constitutional decisions in brief

The Work Choices decision

Andrew Buckland

Canberra
Andrew Buckland Senior Executive Lawyer
T 02 6253 7024
F 02 6253 7303
andrew.buckland@ags.gov.au

David Bennett

Canberra
David Bennett Deputy Government Solicitor
T 02 6253 7063
F 02 6253 7303
david.bennett@ags.gov.au

The High Court, by a 5:2 majority (Kirby J and Callinan
J dissenting), has upheld the constitutional validity
of the recent amendments to the Workplace Relations
Act 1996 (WRA) made by the Workplace Relations
Amendment (Work Choices) Act 2005 (Work Choices Act).

State of NSW v Commonwealth of Australia (Work Choices
Case)
High Court of Australia, 14 November 2006
[2006] HCA 52

In upholding the constitutional validity of the Work Choices
Act the Court has confirmed that the Commonwealth's
power with respect to trading, financial and foreign corporations
extends to:

  • the regulation of the activities, functions, relationships
    and the business of a corporation
  • the creation of rights, and privileges belonging to
    a corporation
  • the imposition of obligations on a corporation.

In respect of these matters, the corporations power also
extends to:

  • the regulation of the conduct of those through whom
    a corporation acts, its employees and shareholders
  • the regulation of those whose conduct is or is capable
    of affecting its activities, functions, relationships
    or business.

Background

Historically, Commonwealth laws regulating aspects of
industrial relations have relied on s 51(xxxv) of the Constitution,
which confers power on the Commonwealth Parliament to enact
legislation with respect to 'conciliation and arbitration
for the prevention and settlement of industrial disputes
extending beyond the limits of any one State'. In
more recent years, however, the Commonwealth has relied
on other heads of power, including s 51(xx), for some aspects
of its industrial relations legislation. Section 51(xx)
confers power on the Commonwealth Parliament to enact legislation
with respect to 'foreign corporations, and trading
or financial corporations formed within the limits of the
Commonwealth' (constitutional corporations).

Then in December 2005 the Commonwealth Parliament enacted
the Work Choices Act, which created a substantially new
federal industrial relations regime primarily in reliance
on the corporations power.1 Most significantly, the WRA
(as amended by the Work Choices Act) now directly regulates
the industrial rights and obligations of constitutional
corporations and their employees.

The states of New South Wales, Victoria, Queensland, South
Australia and Western Australia and two trade union organisations
challenged the constitutional validity of the WRA as amended
by the Work Choices Act. The Attorneys-General of Tasmania,
the Northern Territory and the Australian Capital Territory
intervened in support of the plaintiffs' challenge
to the constitutional validity of the law. The case was
argued over six days by a record 39 counsel.

According to the Explanatory Memorandum for the Work Choices
Act, use of the corporations power (together with the other
powers relied on) for the new regime 'would mean
that up to 85 per cent of Australian employees would be
covered by the federal system'. The principal issue
before the High Court was the validity of the extensive
use of the corporations power to support the new federal
regime.

The majority decision

Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ delivered
a joint judgment upholding the validity of the legislation.

Scope of corporations power

After discussing previous High Court authority on the
corporations power, developments in company and corporations
law in the 19th century, the Convention Debates,2 drafting
history and various failed referendums3 to amend both s
51(xx) and s 51(xxxv), the majority endorsed the statement
by Gaudron J in Re Pacific Coal Pty Ltd; Ex parte Construction,
Forestry, Mining and Energy Union (2000) 203 CLR 346
at 375 that the corporations power extends to:

the regulation of the activities, functions, relationships
and the business of a corporation described in that sub-section,
the creation of rights, and privileges belonging to such
a corporation, the imposition of obligations on it and,
in respect of those matters, to the regulation of the
conduct of those through whom it acts, its employees
and shareholders and, also, the regulation of those whose
conduct is or is capable of affecting its activities,
functions, relationships or business.

It follows that the power 'extends to laws prescribing
the industrial rights and obligations of corporations and
their employees and the means by which they are to conduct
their industrial relations': [178].

The plaintiffs had relied on three main lines of reasoning
to argue that the corporations power should not be construed
as supporting the WRA: [57].

  • First, the corporations power was said to extend only
    to regulating the dealings of corporations with persons
    external to the corporation and not its internal relationships.
    The relationship between a corporation and its employees
    was said to be part of its internal relationships.
  • Secondly, it was argued that the corporations power
    did not support a law merely because it conferred rights
    or imposed obligations on a corporation. Rather, 'the
    fact that the corporation is a foreign, trading, or financial
    corporation should be significant in the way in which
    the law relates to it': [140].
  • Thirdly, it was argued that the corporations power
    had to be read down because of the presence of s 51(xxxv).
    The consequence was said to be that the Commonwealth
    Parliament could enact laws dealing with the industrial
    relations between a corporation and its employees only
    under s 51(xxxv) and not under the corporations power.

The joint judgment rejected each of these asserted limitations
on the corporations power. Their Honours observed that
underlying each of them 'was a theme, much discussed
in the authorities on the corporations power, that there
is a need to confine its operation because of its potential
effect upon the (concurrent) legislative authority of the
States': [54], [183]–[196]. They regarded this
appeal to the 'federal balance' as carrying 'a
misleading implication of static equilibrium'.

The approach of the joint judgment was to determine the
content of the power to legislate 'with respect to' constitutional
corporations by applying settled principles of constitutional
interpretation, beginning with the decision in the Engineers' case
(Amalgamated Society of Engineers v Adelaide Steamship
Co Ltd (1920) 28 CLR 129). The Engineers' case discarded 'an
approach to constitutional construction that started in
a view of the place to be accorded to the States formed
independently of the text of the Constitution' although
it 'did not establish that no implications are to
be drawn from the Constitution': [194]. One of those
implications is that the Constitution requires the continued
existence of the states 'as separate bodies politic
each having legislative, executive and judicial functions':
[194]. However, the implication 'does not identify
the content of any of those functions'.

Their Honours emphasised at several points the need to
construe the constitutional text and said:

The general principles to be applied in determining
whether a law is with respect to a head of legislative
power are well settled. It is necessary, always, to construe
the constitutional text and to do that "with all
the generality which the words used admit". The
character of the law must then be determined by reference
to the rights, powers, liabilities, duties and privileges
which it creates. The practical as well as the legal
operation of the law must be examined. If a law fairly
answers the description of being a law with respect to
two subject-matters, one a subject-matter within s 51
and the other not, it is valid notwithstanding there
is no independent connection between the two subject-matters.
Finally, as remarked in Grain Pool of Western Australia
v The Commonwealth, "if a sufficient connection
with the head of power does exist, the justice and wisdom
of the law, and the degree to which the means it adopts
are necessary or desirable, are matters of legislative
choice". [142] (footnotes omitted)

It is apparent that their Honours did not regard the 'fundamental
and far-reaching legal, social, and economic changes in
the place now occupied by the corporation, compared with
the place it occupied when the Constitution was drafted
and adopted' as providing any basis for applying
different principles in construing the text of s 51(xx):
[67], see also [121]. The consequent extension in the range
of activities that Commonwealth laws could now reach was
a practical result of those changes but this fell well
short of establishing that 'the States could no longer
operate as separate governments exercising independent
functions'. The majority concluded that 'the
proposition, that a particular construction of s 51(xx)
would or would not impermissibly alter the federal balance,
must have content, and the plaintiffs made no attempt to
define that content': [196].

In rejecting the three particular ways in which the plaintiffs
sought to restrict the scope of the legislative power in
s 51(xx), the majority also reached the following conclusions.

First, the suggested division between external and internal
relationships found no support in the text of s 51(xx)
([94]–[95]), was 'a distinction of doubtful
stability' and, even if were to be adopted, 'there
seems every reason to treat relationships with employees
as a matter external to the corporation': [66], see
also [89]–[90].

Secondly, the majority held that s 51(xx) is not, as
some members of the Court had previously suggested, limited
to the trading activities of trading corporations and the
financial activities of financial corporations. That is
not what s 51(xx) says: [169]. To the extent that the WRA
prescribes norms regulating the relationship between constitutional
corporations and their employees, or is directed to protecting
constitutional corporations from conduct intended and likely
to cause loss or damage to them, it can be characterised
as a law with respect to corporations without needing to
satisfy any additional requirement that the nature of a
corporation (as a trading, financial or foreign corporation)
is significant as an element in the nature or character
of the law: [198].

Thirdly, there was no basis in the text and structure
of the Constitution, or in the historical context in which
s 51(xxxv) was included in the Constitution, for reading
down s 51(xx) by reference to s 51(xxxv). The majority
referred to the general principle that 'a law with
respect to a subject-matter within Commonwealth power does
not cease to be valid because it affects a subject outside
power or can be characterized as a law with respect to
a subject matter outside power': [219], see also
[204]. Although s 51(xxxv) confers power in relation to
particular means (conciliation and arbitration) for the
prevention and settlement of a particular class of industrial
disputes (interstate disputes), its text expresses the
scope of the power as a compound conception rather than
containing a positive prohibition or restriction upon what
would otherwise be within its scope. There was, then, no
reason to read s 51(xx) as subject to any such prohibition
or restriction: [203], [219]–[222].

WRA validly regulates industrial rights and obligations

As a result, the majority upheld the validity under the
corporations power of the provisions of the WRA that regulate
the industrial rights and obligations of constitutional
corporations and their employees. These include provisions
dealing with:

  • minimum terms and conditions of employment covering
    matters such as rates of pay, maximum hours of work,
    and leave entitlements, which together constitute the 'Australian
    Fair Pay and Conditions Standard' in Part 7 of
    the WRA ([246]), and other provisions relating to minimum
    entitlements of employees: [251]
  • the making of workplace agreements, in Part 8 of the
    WRA ([252]), including provisions:
    • prohibiting certain content from being included
      in the agreements and proscribing conduct in relation
      to prohibited content: [275], [416]
    • regulating industrial action to do with the making
      of collective Workplace Agreements in Part 9: [258]–[261]
  • the minimum entitlements of employees in relation
    to termination of employment set out in ss 637 and 643
    of the WRA ([278]), and the interim exclusion of certain
    corporations (small businesses) from state laws regarding
    redundancy pay effected by Part VIAAA : [270].4

The majority also upheld these provisions as supported
by the territories power (s 122) in so far as they apply
to employers incorporated in a territory, or employers
that carry on an activity in a territory so far as the
employer employs, or usually employs, an individual in
connection with the activity carried on in the territory:
[335]–[343].

Registration and accountability of organisations

Schedule 1 sets up a system of registration, incorporation
and regulation of industrial organisations (i.e. unions
and employer organisations). Registered organisations have
a range of rights and privileges under the WRA, including
to intervene in matters before the Australian Industrial
Relations Commission (AIRC), to be parties to collective
agreements and to seek certain relief under the Act. In
return for such rights and privileges, however, registered
organisations are required to comply with various standards
set out in Schedule 1.

The majority upheld the validity of Schedule 1, stating
that:

If it be accepted, as it should be for the argument
on this branch of the plaintiffs' case, that it
is within the corporations power for the Parliament to
regulate employer–employee relationships and to
set up a framework for this to be achieved, then it also
is within power to authorise registered bodies to perform
certain functions within that scheme of regulation. It
also is within power to require, as a condition of registration,
that these organisations meet requirements of efficient
and democratic conduct of their affairs. [322]

Excluding state and territory laws (s 16 of the Act)

Section 16 of the WRA deals with the exclusion of certain
state and territory laws. In particular, s 16(1) provides
that the WRA is intended to apply to the exclusion of the
state and territory laws identified in s 16(1)(a) to (e)
(such as 'a State or Territory industrial law',
a term defined in s 4(1)) so far as those laws would apply
in relation to an employee or employer. Section 16(4) then
provides for additional state and territory laws – that
the WRA is intended to apply to the exclusion of – to
be prescribed by regulation.5

The majority rejected an argument that s 16 of the WRA
is invalid as a bare attempt to exclude state laws. The
majority accepted the Commonwealth's argument that
s 16 validly indicated the 'field' that the
WRA covers, even though the Act does not make detailed
provision about every matter within that field which is
dealt with by state and territory law: [369]–[370].
Section 16 is not materially different from other Commonwealth
provisions that had been upheld in previous decisions of
the High Court: [372].

Other issues

A number of other challenges made by the plaintiffs to
the WRA were rejected, including to the following:

  • Broad regulation-making powers: The
    operation of several provisions in the WRA depends on
    the making of regulations, for example as to what content
    is prohibited from being included in workplace agreements
    (s 356),6 and what additional state and territory laws
    are excluded by s 16 (s 16(4)). The majority rejected
    arguments that these provisions involved an impermissible
    delegation of legislative power to the executive and
    thus were not 'laws': [375]–[376],
    [414]–[418], [420]. The majority did, however,
    state that the technique employed at least by s 356 was 'undesirable' (at
    [399]), and led to the ambit of the relevant regulation-making
    power being 'imprecise': [417].
  • Transitional arrangements for employees/employers
    leaving the federal system: Schedule 6 of
    the WRA provides transitional arrangements for non-federal
    system employers and employees, who were bound by
    federal awards made under the pre-reform WRA, but
    who are not within the new system established by
    the Work Choices Act. During a five-year transitional
    period those employers and employees remain bound
    by the relevant awards, which are continued in operation
    as 'transitional awards' and are maintained
    by the AIRC, but within the limits specified in Schedule
    6. The majority held Schedule 6 to be valid, including
    because it was part of the Commonwealth's staged
    dismantling of the previous system established pursuant
    to s 51(xxxv) of the Constitution: [307]–[308].
    The majority similarly upheld transitional arrangements
    in Schedule 1 for organisations which may no longer
    be eligible for registration: [327].
  • Rights of entry under state law: The
    plaintiffs attacked various provisions in Part 15 which
    prohibit certain persons from exercising a right under
    state law to enter premises for OH&S purposes, unless
    amongst other things the person also holds a permit under
    the WRA. Part 15 relevantly applies to a right to enter
    premises occupied or controlled by a constitutional corporation,
    or where the right relates to conduct of a constitutional
    corporation, or where the right relates to a contractor
    in so far as the contractor provides services to a constitutional
    corporation. In so applying, Part 15 is supported by
    the corporations power: [284]–[286].
  • Freedom of association: Part 16 proscribes
    certain conduct to ensure that employers, employees and
    independent contractors are free to become, or not become,
    members of industrial associations and are not victimised
    because they are, or are not, such members (s 778(1)).
    Part 16 is supported by the corporations power because
    it only applies to conduct by or against constitutional
    corporations, conduct whose ultimate purpose or effect
    is to cause harm to a constitutional corporation, and
    conduct affecting a person in his or her capacity as
    employee of, or contractor to, a constitutional corporation:
    [291]–[294].
  • Restraining state industrial authorities: Section
    117 confers power on the AIRC to make an order restraining
    a state industrial authority from dealing with a matter
    that is also the subject of proceedings before the AIRC.
    The majority rejected the plaintiffs' arguments
    that s 117 is contrary to s 106 of the Constitution (which
    provides for the continuation of the 'Constitution
    of each State'), or otherwise infringes what is
    known as the Melbourne Corporation doctrine, and held
    that s 117 is supported by the corporations power: [390]–[393].
    The interference with the functioning of a state which
    s 117 permitted is 'relatively minor'.

Dissenting judgments

Justices Kirby and Callinan each delivered strongly worded
dissenting judgments, drawing attention to the wide-ranging
consequences of a broad view of the corporations power,
given the role that corporations now play in modern life.
For example, Kirby J stated:

The States, correctly in my view, pointed to the potential
of the Commonwealth's argument, if upheld, radically
to reduce the application of State laws in many fields
that, for more than a century, have been the subject
of the States' principal governmental activities.
Such fields include education, where universities, tertiary
colleges and a lately expanding cohort of private schools
and colleges are already, or may easily become, incorporated.
Likewise, in healthcare, where hospitals (public and
private), clinics, hospices, pathology providers and
medical practices are, or may readily become, incorporated.
Similarly, with the privatisation and out-sourcing of
activities formerly conducted by State governments, departments
or statutory authorities, through corporatised bodies
now providing services in town planning, security and
protective activities, local transport, energy, environmental
protection, aged and disability services, land and water
conservation, agricultural activities, corrective services,
gaming and racing, sport and recreation services, fisheries
and many Aboriginal activities. All of the foregoing
fields of regulation might potentially be changed, in
whole or in part, from their traditional place as subjects
of State law and regulation, to federal legal regulation,
through the propounded ambit of the corporations power.
[539]

In light of this the dissenting judges considered that
s 51(xx) had to be read down in order to preserve the 'federal
balance' in the Constitution.7 Thus Callinan J stated:

There is nothing in the text or the structure of the
Constitution to suggest that the Commonwealth's
powers should be enlarged, by successive decisions of
this Court, so that the Parliament of each State is progressively
reduced until it becomes no more than an impotent debating
society. This Court too is a creature of the Constitution.
Its powers are defined in Ch III, and legislation made
under it. The Court goes beyond power if it reshape[s]
the federation. By doing that it also subverts the sacred
and exclusive role of the people to do so under s 128.
[779]

The dissenting judges then held that s 51(xx)8 should
be read down or restricted in its operation by reference
to s 51(xxxv), with the result that Parliament has, in
effect, no power to legislate with respect to the employment
relationship between a constitutional corporation and its
employees except pursuant to s 51(xxxv): [583], [913].

In reaching this conclusion, the dissenting judges also
referred to:

  • the history of failed referenda to amend the Constitution
    to confer power on the Commonwealth with respect to industrial
    matters more generally (Kirby J at [437], Callinan J
    at [707]–[735])
  • s 51(xxxv) as protecting industrial fairness (Kirby
    J at [519]–[531])
  • the assumption, by successive governments and courts,
    that s 51(xxxv) was the Commonwealth's only source
    of power to legislate with respect to industrial matters
    (Kirby J at [428]–[447]).

According to the dissenting judges, the core provisions
of the WRA as amended were laws with respect to industrial
disputes or industrial relations and were invalid for failing
to comply with the limitations in s 51(xxxv) concerning
conciliation and arbitration. Furthermore, as those core
provisions could not be severed from the balance of the
amendments, the entire Work Choices Act was invalid: [599],
[912]. Kirby J also held that Schedule 6 and various 'opaque' regulation-making
powers were invalid in their own right: [460].

Issues for the future?

Since the Work Choices Act several lower courts have had
to address whether various employers are constitutional
corporations and thus covered by the WRA. In the present
case, the majority emphasised that the question of what
is a constitutional corporation was not in issue in this
case, and that any debate about that question 'must
await a case in which [it] properly arise[s]' (see
e.g. [55], [58], [86], [158], [185]). Similarly, the majority
noted that no party had sought to reopen the Incorporation
case (NSW v The Commonwealth (The Incorporation Case) (1990)
169 CLR 482) and thus that there was no occasion to consider
further what it decided (namely that s 51(xx) does not
confer a general power to incorporate trading or financial
corporations): [137].

AGS lawyers advised on the constitutional basis of the
Work Choices Act and acted for the Commonwealth in the
High Court litigation. The Commonwealth's counsel
in the litigation included the Commonwealth Solicitor-General
David Bennett QC and AGS Chief General Counsel Henry Burmester
QC.

Text of the decision is available at:
<http://www.austlii.edu.au/au/cases/cth/HCA/2006/52.html>

Notes

  1. Parts of the WRA are also supported by other heads
    of power. Most notably, the operation of the WRA in Victoria
    is supported by a reference of power from that state
    pursuant to s 51(xxxvii) of the Constitution.
  2. In relation to which the majority expressed some caution,
    stating that 'the answer to [the] question [whether
    a law is within power] is not to be found in attempting
    to attribute some collective subjective intention to
    all or any of those who participated in the Convention
    Debates': [120].
  3. The majority concluded that 'There are insuperable
    difficulties in arguing from the failure of a proposal
    for constitutional amendment to any conclusion about
    the Constitution's meaning.': [131]–[135].
  4. Part VIAAA has since been replaced by the more general
    exclusion of state laws effected by s 16 of the WRA.
  5. According to the majority the kinds of laws that can
    be prescribed under s 16(4) are, however, limited by
    its statutory context: [361].
  6. Section 356 provides: 'The regulations may specify
    matters that are prohibited content for the purposes
    of this Act'.
  7. At [532]–[559] per Kirby J, and [774]–[797]
    per Callinan J.
  8. And other heads of power, except for the defence power
    (s 51(vi), [569], [797]), probably the external affairs
    power (s 51(xxix), [573], [797]) and perhaps the territories
    power (s 122, [573], [910]).

Constitutional validity of acting judges

Robyn Briese

Canberra
Robyn Briese Lawyer
T 02 6253 7077
F 02 6253 7303
robyn.briese@ags.gov.au

Andrew Buckland

Canberra
Andrew Buckland Senior Executive Lawyer
T 02 6253 7024
F 02 6253 7303
andrew.buckland@ags.gov.au

The High Court held that the appointment of an acting
judge to the NSW Supreme Court did not infringe Ch III
of the Constitution and upheld the validity of transitional
provisions in the Corporations Act 2001 (Cth).

Forge v Australian Securities and Investments Commission
High Court of Australia, 5 September 2006
[2006] HCA 44; (2006) 229 ALR 223

Background

Foster AJ, an acting judge of the NSW Supreme Court, found
the claimants to have breached their duties as directors
in respect of a number of transactions occurring in 1998.
The transactions were alleged to be in contravention of
the NSW Corporations Law at the time but, as the case was
heard in 2002, Foster AJ applied the transitional provisions
in the Corporations Act 2001 (Cth) to determine
the case under that Act.

The claimants challenged Foster AJ's decision in
the High Court on two bases:

  • that the appointment of acting judges to the NSW Supreme
    Court under s 37 of the Supreme Court Act 1970 (NSW)
    was constitutionally impermissible and, hence, that Foster
    AJ's appointments for successive 12-month terms
    were invalid
  • that the transitional provisions in the Corporations
    Act were invalid.

Chapter III of the Constitution and the appointment of
acting judges to state courts

The challenge to the appointment of acting judges to the
NSW Supreme Court was based on the decisions in Kable
v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
and North Australian Aboriginal Legal Aid Service Inc
v Bradley (2004) 218 CLR 146. The claimants submitted that
these cases established that Ch III requires state Supreme
Courts to be independent and impartial, and that in order
for judges to be independent and impartial they need to
have the same, or a substantially equivalent, level of
security of tenure and remuneration as provided for judges
of federal courts in s 72 of the Constitution.

The High Court held 6:1 (Kirby J dissenting) that s 37
of the Supreme Court Act and the acting appointments of
Foster AJ to the NSW Supreme Court were valid.

Ch III requires each state to maintain a Supreme 'Court' that
is independent and impartial

The majority judges accepted that Ch III of the Constitution
requires that there always be a court in each state which
answers the constitutional description 'the Supreme
Court of [a] State'. It is, therefore, beyond the
legislative power of a state to alter the constitution
or character of its supreme court such that it ceases to
be a 'court' within the meaning of Ch III.
Whilst it is not possible to define all the characteristics
of a 'court' (and simply calling a body a court
is not sufficient), a majority of judges accepted that,
for a body to answer the description of a 'court' it
must satisfy minimum requirements of institutional independence
and impartiality.

Independence and impartiality can be secured otherwise
than by appointing only permanent judges

All members of the High Court held that, for state courts,
the minimum requirements of independence and impartiality
are not those specified in s 72 of the Constitution. In
particular, it is not necessary that a state (or territory)
supreme court consist only of full time permanent judges
with security of tenure until a statutorily determined
age of retirement. Indeed, acting judges have been a feature
of the judicial systems of the states since before federation.

Furthermore, the majority justices held that terms regulating
tenure and security of remuneration until retirement are
not the only safeguards of judicial independence and impartiality.
This can legitimately be secured by a range of institutional
arrangements (including security of tenure and remuneration
within the term of appointment, complaints and disciplinary
mechanisms, the requirement to give reasons, the judicial
oath, the availability of appeals, the doctrine of apprehension
of bias, and immunity of judges from suit).

On the facts of this case the majority justices all concluded
that s 37 of the Supreme Court Act and the appointments
of Foster AJ were valid. However, there were different
approaches:

Gleeson CJ (with whom Callinan J agreed) noted that,
apart from security of tenure until retirement, the safeguards
applicable to acting judges in the NSW Supreme Court were
in effect the same as those applying to permanent judges.
This was sufficient to satisfy the minimum requirements
of judicial independence in Ch III.

Gleeson CJ also emphasised his view that the appointment
of judges is a responsibility of the political branch of
government '[which has] the responsibility of paying
the salaries, and providing the necessary resources, of
the appointees, and [which has] political accountability
for bad or unpopular decisions about appointments':
[19]. In this respect, whether the appointment of acting
judges is desirable is a different matter to the legality
of their appointment.

Gummow, Hayne and Crennan JJ also referred to the general
safeguards applicable to acting judges in the NSW Supreme
Court, but ultimately upheld the validity of the appointments
of Foster AJ on the narrower ground that the claimants
had not demonstrated that the particular circumstances
surrounding his appointments had affected the institutional
integrity of the court. Circumstances which the joint judgment
considered would be relevant to this question included
how many acting judges have been appointed, who has been
appointed (a judge of another court, a retired judge or
a legal practitioner), for how long, to do what, and why,
and the perception of the informed observer about such
appointments.

The transitional provisions of the Corporations Act 2001
(Cth)

The applicable transitional provisions in the Corporations
Act were intended to preserve rights and liabilities acquired,
accrued or incurred under the various state corporations
laws and to enable those rights and liabilities to be vindicated
under the Commonwealth Act. The claimants argued that proceedings
under the transitional provisions did not give rise to
a 'matter' for the purposes of s 76(ii) of
the Constitution as the proceedings did not involve the
enforcement of a liability derived from Commonwealth law.
Rather, the liability derived from state law.

The High Court unanimously upheld the validity of the
transitional provisions, holding that they operated by
creating new rights and liabilities by reference to past
acts and that the relevant 'matter', for the
purposes of s 76(ii) of the Constitution, was the justiciable
controversy as to ASIC's entitlement to orders against
the claimants, under the Corporations Act, in respect of
those newly created rights and liabilities.

The Commonwealth Solicitor-General, David Bennett AO QC,
appeared as senior counsel for the Commonwealth and the
Commonwealth Attorney-General (intervening) and was instructed
by AGS.

Text of the decision is available at:
<http://www.austlii.edu.au/au/cases/cth/HCA/2006/44.html>

The external affairs power and child sex tourism offences

Andrew Buckland

Canberra
Andrew Buckland Senior Executive Lawyer
T 02 6253 7024
F 02 6253 7303
andrew.buckland@ags.gov.au

The High Court has upheld provisions making it a criminal
offence for an Australian citizen or resident, while
outside Australia, to engage in sexual conduct with a
person under 16. In doing so, a majority of the Court
affirmed that the external affairs power includes a power
to make laws with respect to matters outside the geographical
limits of Australia. Whilst the external affairs power
also clearly extends to legislating with respect to the
implementation of treaties to which Australia is a party
and with respect to Australia's relations with
other countries (and international organisations), at
least some members of the Court doubted or rejected the
proposition that it extends to matters of 'international
concern'.

XYZ v Commonwealth
High Court of Australia, 13 June 2006
[2006] HCA 25; (2006) 227 ALR 495

Facts and decision

The plaintiff was an Australian citizen committed for
trial in Victoria for alleged offences against ss 50BA
and 50BC of the Crimes Act 1914 (Cth). Those provisions
make it a criminal offence for an Australian citizen or
resident, while outside Australia, to engage in certain
forms of sexual activity with a person under 16 years of
age. The plaintiff was alleged to have committed the offences
against a foreign child while in Thailand in 2001.

The plaintiff brought these proceedings in the High Court
to challenge the constitutional validity of ss 50BA and
50BC. The only issue was whether the provisions were supported
by s 51(xxix) of the Constitution, which gives the Commonwealth
Parliament power to make laws with respect to 'external
affairs'. The Commonwealth argued that the impugned
provisions were supported by the external affairs power
for any of the following reasons:

  • they operated on conduct geographically external to
    Australia
  • they concerned Australia's relations with other
    countries
  • they operated on a matter of international concern.

The High Court upheld the validity of the provisions by
a 5:2 majority. Gleeson CJ, and Gummow, Hayne and Crennan
JJ, upheld the provisions on the first basis (i.e. because
they operated on conduct geographically external to Australia):
[10], [38], [49]. Kirby J upheld the provisions on the
second basis (i.e. because they concerned Australia's
relations with other countries, particularly Thailand,
and international organisations): [139]. Callinan and Heydon
JJ dissented, both as to the existence of the first basis
for validity and as to the application of the second basis.
Kirby J, and Callinan and Heydon JJ also expressed some
reservations about the third basis (i.e. that the external
affairs power extends to laws that operate on matters of
international concern).

Geographic externality principle

Prior authority

Prior to this case it appeared settled that the external
affairs power included a power to legislate with respect
to places, persons, matters or things outside the geographical
limits of, that is, external to, Australia (the 'geographic
externality principle'). This was established in
Polyukhovich v Commonwealth (1991) 172 CLR 501 in which
the High Court upheld provisions of the War Crimes Act
1945 rendering unlawful certain conduct engaged in outside
Australia as supported by the external affairs power. Importantly,
all seven members of the Court in that case endorsed the
geographic externality principle, although two judges (Brennan
J and Toohey J) held that a law operating on things geographically
external to Australia must have some nexus with Australia
to be within s 51(xxix) (which deals the external affairs
of Australia). (On the facts of that case Toohey J held
that there was sufficient nexus, whilst Brennan J held
there was not.)

On several occasions after Polyukhovich the High Court
endorsed the geographic externality principle (see e.g.
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 485 per Brennan CJ, Toohey, Gaudron,
McHugh and Gummow JJ and De L v Director-General, New
South Wales Department of Community Services (1996) 187 CLR 640
at 650).

XYZ challenges prior authority

In the present case the plaintiff submitted that the external
affairs power does not support a law 'simply because
that law operates on matters or events outside Australia',
and that to the extent the Court held otherwise in previous
cases, those cases are incorrect and should be overruled.

Four members of the Court expressly rejected this argument.
In a joint judgment Gummow, Hayne and Crennan JJ held that
the geographic externality of the conduct dealt with by
the impugned provisions was by itself enough to bring them
within the external affairs power: [49]. They said the
view of the external affairs power adopted in the Industrial
Relations Act case (that geographic externality alone is
sufficient) is 'correct': [38]. They noted
that the impugned provisions would thus be valid even 'without
the further requirement, here imposed by s 50AD, that the
person alleged to have committed the offence outside Australia
must be an Australian citizen or a resident of Australia':
[49].

Similarly, Gleeson CJ accepted that the external affairs
power 'includes a power to make laws with respect
to places, persons, matters or things outside the geographical
limits of, that is, external to, Australia': [10].
He referred to the different views taken in Polyukhovich (with only Brennan and Toohey JJ requiring a nexus with
Australia in addition to geographic externality) but said
that that difference did not affect the present case: [10].
That was presumably because, should a nexus be required,
in this case it would be provided by the fact that the
offences applied only to Australian citizens or residents.
(A similar approach had been taken by the Court in Horta
v Commonwealth (1994) 181 CLR 183 at 193–194.)

Kirby J did not decide whether the impugned provisions
were valid on the basis of the geographic externality principle,
but upheld them on a different basis (see below). He said
that the arguments in the case had planted in his mind 'a
doubt' about the correctness of the geographic externality
principle, but he refused to overrule it: [114]. He did,
however, suggest that Brennan J's approach in Polyukhovich
(requiring an Australian nexus) should be revisited: [114],
[116].

Callinan and Heydon JJ (dissenting)

Callinan and Heydon JJ said the geographic externality
principle should be rejected, and previous authority should
be overruled to the extent necessary: [206]. In their view,
the phrase 'external affairs' was originally
intended to be, and is now, synonymous with 'foreign
affairs' or 'foreign relations' and that
as such it refers to relations between Australia and other
countries and international organisations: [158]–[170],
[177]. It does not extend to all matters geographically
external to Australia.

In response to the Commonwealth's argument that,
without the geographic externality principle, there would
be a lacuna in the legislative competence of the federal
and state parliaments to legislate on things external to
Australia, Callinan and Heydon JJ pointed to the states' extraterritorial
powers, and the Commonwealth's power under s 51(xxxviii)
of the Constitution to exercise, with the concurrence of
the parliaments of the states, any power which at federation
could be exercised only by the United Kingdom Parliament,
as 'reduc(ing) the theoretical existence of a lacuna
to vanishing point': [187]; cf. Gleeson CJ at [13]–[15].

Australia's relationship with other countries and
international organisations

Of the majority only Kirby J considered (and upheld) the
validity of the impugned provisions on the basis that they
concerned Australia's relations with other countries
and international organisations. He said that Australia
invoked jurisdiction over the plaintiff under the active
nationality principle of international law (he was an Australian
citizen), in respect of his conduct in Thailand. This necessarily
affected Australia's relationship with Thailand:
[131]–[134]. Further, material before the Court showed
that the subject matter of the provisions is related to
Australia's external relations with relevant international
organisations (particularly the United Nations treaty body
with responsibility for the implementation of the Convention
on the Rights of the Child): [138]–[139].

In contrast, Callinan and Heydon JJ held that the material
before the Court did not establish that the impugned provisions
affected Australia's relations with other countries:
[209]–[212]. They questioned whether statements of
the executive government, that Australia's reputation
was being adversely affected by the conduct of Australians
overseas, could establish that the matter would affect
Australia's external relations and thereby expand
Commonwealth legislative power: [209]. Also, they regarded
the possibility of Australia criminalising conduct in a
country that may be legal in that country as not fitting
coherently with extradition law (usually a country will
only extradite where the alleged offence is an offence
in that country too). This might also adversely affect
Australia's relations with other countries because
it could be seen as an attempted intrusion into the affairs
of the other country: [210], [212]. Underlying this last
point appears to be an assumption that the external affairs
power would not support laws that adversely affect Australia's
relationships with other countries.

International concern

Prior to this case, particularly during the 1980s, some
High Court judges had suggested that the external affairs
power includes a power to legislate with respect to a matter
of 'international concern' (although no case
was decided in the High Court on this basis alone). So,
for example, in Koowarta v Bjelke-Petersen (1982) 153 CLR
168 at 217, Stephen J said that a 'subject-matter
of international concern necessarily possesses the capacity
to affect a country's relations with other nations
and this quality is itself enough to make a subject-matter
a part of a nation's "external affairs'' ' (see
also Commonwealth v Tasmania (Tasmanian Dam Case) (1983)
158 CLR 1, at 131–132 (Mason J), 171–172 (Murphy
J), 220 and 222 (Brennan J), 258 (Deane J)). Other High
Court judges had denied that the external affairs power
supports laws on any matter of international concern (see
e.g. Gibbs CJ in Koowarta at 202–203, 207, with whom
Aickin and Wilson JJ agreed).

In XYZ, Heydon and Callinan JJ said there were 'immense
difficulties' facing any court wishing to apply the
international concern doctrine, which had not been resolved
by argument in this case: [225]. These included difficulties
in how to identify whether a matter was of international
concern and in measuring the extent of the international
concern to determine the boundaries of Commonwealth legislative
power. However, their Honours did not need conclusively
to deny the doctrine's existence. This was because
they said that even if the material in this case demonstrated
some international concern, that concern was directed at
the sale of children, child prostitution and child pornography,
rather than the specific conduct (child sex tourism) covered
by the impugned provisions: [226]. Furthermore, whilst
the material before the Court revealed general concern
about sexual activity involving children under 12 (the
age of consent in some countries), the impugned provisions,
in criminalising conduct with older children, went beyond
the relevant area of concern: [226].

None of the majority judges expressed a firm view about
the 'international concern' aspect of the external
affairs power. Of these judges, Kirby J gave it the most
consideration but considered that it was 'still undeveloped
in Australia' so he preferred to put it to one side:
[127]. Gleeson CJ at [18] and Gummow, Hayne and Crennan
JJ at [50]–[53] noted the arguments about international
concern as a possible basis of support under the external
affairs power and, in the latter case, referred to the 'unsettled
questions concerning the use of the notion of international
concern', but did not need to resolve those questions
as validity was upheld on another basis.

Federalism

Finally, it is worth noting that all judges addressed,
to various degrees, the consequences of different interpretations
of the external affairs power on the balance of powers
between the Commonwealth and states established by the
Constitution (see e.g. Kirby J [56]–[57], [111],
[115], [125], [147], and Callinan and Heydon JJ [209],
[221]; contrast Gleeson CJ [18], and Gummow, Hayne and
Crennan JJ [39]–[40]).

The Commonwealth Solicitor-General, David Bennett AO QC,
appeared as senior counsel for the Commonwealth and was
instructed by AGS.

Text of the decision is available at:
<http://www.austlii.edu.au/au/cases/cth/HCA/2006/25.html>

Forfeiture of superannuation benefits

Graeme Hill

Canberra
Graeme Hill Senior Lawyer
T 02 6253 7080
F 02 6253 7303
graeme.hill@ags.gov.au

Commonwealth legislation can validly forfeit the superannuation
benefits of a member of Parliament who is convicted of
a 'corruption offence', without contravening
s 51(xxxi) of the Constitution (acquisition of property
on just terms).

Theophanous v Commonwealth
High Court of Australia, 11 May 2006
[2006] HCA 18; (2006) 226 ALR 602

Background

Part 2 of the Crimes (Superannuation Benefits) Act
1989 (Cth) (the CSB Act) provides for the superannuation benefits
of a Commonwealth employee to be forfeited if the employee
is convicted of a 'corruption offence'. Where
a Commonwealth employee (defined to include a member of
the Commonwealth Parliament) is convicted of a corruption
offence, the minister may authorise the Commonwealth DPP
to apply to the appropriate court for a 'superannuation
order' (s 16). The DPP must make the application
to the court and the court must make the order if it is
satisfied that the person was convicted of a 'corruption
offence' as defined (s 19(1)). Once the order takes
effect, the person ceases to be a member of their superannuation
scheme (here, the scheme established by the Parliamentary
Contributory Superannuation Act 1948), rights to future
superannuation benefits cease and benefits already received
and attributable to employer contributions must be repaid
(s 21). The person is, however, entitled to his or her
employee contributions.

The plaintiff was a member of the Commonwealth Parliament
between October 1980 and November 2001. In May 2002, he
was convicted of several offences that were 'corruption
offences' as defined in the CSB Act. In August 2004,
the Minister directed the Commonwealth DPP to apply for
a superannuation order in respect of the plaintiff. Before
that order was made, the plaintiff applied to the High
Court for a declaration that the CSB Act was invalid.

The plaintiff argued that Part 2 of the CSB Act was contrary
to s 51(xxxi) of the Constitution (which confers power
on the Commonwealth Parliament to make laws with respect
to the acquisition of property on just terms). His main
arguments were that (1) the forfeiture under the CSB Act
was not proportionate to the severity of the offence committed,
and (2) the CSB Act authorised in certain circumstances
the cessation of benefits that might become payable to
an employee's spouse, who was innocent of any wrongdoing.

Decision

The High Court rejected the plaintiff's arguments.
The Court held that the CSB Act is not contrary to s 51(xxxi)
of the Constitution.

Acquisition was not one to which s 51(xxxi) applies

The Court held that any acquisition of the plaintiff's
superannuation benefits under the CSB Act fell outside
the requirement in s 51(xxxi) for 'just terms'.
Although s 51(xxxi) is usually the only source of power
for the Commonwealth to acquire property, there are some
acquisitions of property to which s 51(xxxi) and the requirement
for 'just terms' do not apply (such as a penalty).
The CSB Act was an example of this principle.

  • In their joint judgment, Gummow, Kirby, Hayne, Heydon
    and Crennan JJ explained that an exaction of property
    will fall outside s 51(xxxi) if the provision of just
    terms would be 'inconsistent' or 'incongruous' with
    the nature of the exaction: [60]. Here, the purpose of
    the forfeiture under the CSB Act was to vindicate the
    public interest in the integrity of public officials
    by denying benefits to those who are found to have misused
    their office: [62]–[63]. The provision of 'just
    terms' would be incongruous with the nature of
    this exaction.
  • In a separate judgment, Gleeson CJ held that the provision
    of 'just terms' would weaken or destroy the
    sanction in the CSB Act, the 'obvious purpose' of
    which was 'to maintain high standards of probity
    in the conduct of public affairs', and therefore
    the acquisition fell outside s 51(xxxi): [10] and [14].

As far as spouse entitlements were concerned, the joint
judgment noted that their interest was contingent on the
Commonwealth employee being entitled to superannuation
benefits. Accordingly, if a superannuation order was made
against the plaintiff, then his spouse would not have any
entitlement under the relevant superannuation legislation:
[66].

The Court left open the question of whether a Commonwealth
employee's statutory superannuation benefits were 'inherently
defeasible', such that they could be amended in any
manner without attracting s 51(xxxi) of the Constitution:
[7], [67]. Gleeson CJ, however, indicated that he was not
inclined to accept this argument: [7].

Acquisition was supported by s 51(xxxvi)

As the CSB Act fell outside s 51(xxxi) of the Constitution,
it required support from another head of power. The Commonwealth
Parliament has clear power to legislate with respect to
the remuneration (including superannuation benefits) of
members of Parliament, under s 51(xxxvi) of the Constitution
(read with s 48).

The plaintiff argued that the CSB Act was not supported
by s 51(xxxvi) of the Constitution, because the forfeiture
was not a reasonably proportionate consequence of the breach
of the law. The joint judgment doubted whether 'proportionality' was
relevant in construing a non-purposive power like s 51(xxxvi):
[70]. In any event, the forfeiture of superannuation benefits
under the CSB Act was not disproportionate: [71]. Forfeiture
of property – even in the hands of an innocent owner – is
a well-established means of obtaining compliance with the
law: [71]. Gleeson CJ held that abuse of public office
is so destructive of the quality of public life 'that
strong sanctions should be applied when it is detected':
[10].

The Commonwealth Solicitor-General, David Bennett AO QC,
appeared as senior counsel for the Commonwealth and was
instructed by AGS.

Text of the decision is available at:
<http://www.austlii.edu.au/au/cases/cth/HCA/2006/18.html>

The constitutional meaning of 'alien'

David Bennett

Canberra
David Bennett Deputy Government Solicitor
T 02 6253 7063
F 02 6253 7303
david.bennett@ags.gov.au

In the latest in a series of cases dealing with the
concept of 'alien' in s 51(xix) of the Constitution
(the naturalization and aliens power), the High Court
has held that a child whose parents are foreign nationals
does not merely by reason of birth in Australia acquire
a status preventing the Commonwealth Parliament from
treating the child as an alien. Commonwealth laws could
validly exclude the child from formal membership of the
Australian community as a citizen.

Koroitamana v Commonwealth
High Court of Australia, 14 June 2006
[2006] HCA 28; (2006) 227 ALR 406

The applicants were two children born in Australia. Their
parents were Fijian citizens. Neither applicant was an
Australian citizen under s 10(2) of the Australian Citizenship
Act 1948 (Cth), as neither parent was an Australian citizen
or permanent resident and the children had not resided
in Australia for 10 years from birth. Under the Constitution
of Fiji, the applicants were entitled to, but had not obtained,
Fijian citizenship by registration. As 'non-citizens' of
Australia the applicants were subject to detention and
removal from Australia under ss 189 and 198 of the Migration
Act 1958 (Cth) should their bridging visas not be renewed.
The High Court unanimously rejected the applicants' argument
that they were not aliens within s 51(xix) of the Constitution.
Sections 189 and 198 of the Migration Act therefore validly
applied to them.

Previous authority

The Commonwealth Parliament has a broad but not unqualified
power under s 51(xix) to define who is a member of the
Australian community, which 'now means citizenship' (Koroitamana at
[11] per Gleeson CJ and Heydon J). Parliament cannot treat
someone as an alien if he or she 'could not
possibly answer the description of "aliens" in
the ordinary understanding of the word' (Pochi
v Macphee (1982) 151 CLR 101 at 109 per Gibbs CJ).
In earlier cases it had been sufficient for the High Court
to conclude
that an alien included a person born outside Australia
to non-Australian parents who had not since been naturalised.
However, more recently the High Court has held that the
Parliament can treat as an alien a person born within Australia
to non-citizen parents, at least where the person is a
citizen of another country (Singh v Commonwealth (2004)
209 ALR 355, see AGS Litigation notes No.
13
), and several
members of the Court suggested that it is open to the Commonwealth
Parliament to treat a stateless person as an alien (see
e.g. Singh at [190] per Gummow, Hayne and Heydon JJ, [271]
per Kirby J; Al-Kateb v Godwin (2004) 219 CLR 562 at 571
[1] per Gleeson CJ).

Applicants' argument – alienage requires
more than descent from foreign parents

The applicants argued that a person born in Australia
could not be treated by the Parliament as an alien unless
they had some further 'relevant characteristic'.
The applicants accepted that, on the basis of Singh, the
possession of a foreign nationality or allegiance would
be a relevant characteristic allowing the Parliament to
treat them as aliens, but as they were not citizens of
Fiji they did not have this characteristic. The applicants
also accepted that 'stateless' persons would
have a relevant characteristic allowing the Parliament
to treat them as aliens. However, they argued they were
not stateless because they were born in Australia (an argument
Gleeson CJ and Heydon J at [15] described as 'circular').
Critically, the applicants sought to argue that 'the
aliens power would not support a law that defined aliens
purely by descent, at least where there was no allegiance
to the state of that descent': [32]. They argued
that the Fijian nationality of their parents was not a 'relevant
characteristic' allowing Parliament to treat them
as aliens as that could not be used to deny the status
arising from their birth in Australia and their lack of
any allegiance to a foreign power.

No further characteristic required

The High Court unanimously rejected the applicants' argument
that by reason of their birth in Australia they had acquired
a status which prevented the Parliament from treating them
as aliens, with some shades of difference in the reasoning
in the various judgments. In their joint judgment Gleeson
CJ and Heydon J said that 'it is open to Parliament
to decide that a child born in Australia of parents who
are foreign nationals is not automatically entitled to … membership
[of the Australian community]': [11], [14]. Otherwise,
the capacity of the Parliament to treat the applicants
as aliens would depend on whether their parents chose to
register them as Fijian citizens, a conclusion which would
involve 'a considerable fetter on the power of the
federal Parliament to identify those who are to be treated,
whether for domestic or international purposes, as nationals
of Australia' (at [13], citing Singh (2004) 209 ALR
355 at 413).

The joint judgment of Gummow, Hayne and Crennan JJ at
[48]–[50] (with, it seems, Callinan J agreeing at
[86]) applied a similar approach. Their Honours also said
(at [51]) that because of s 23D of the Citizenship Act
and the facts of this case it was not necessary to consider
any operation of the Commonwealth's arguments to
render persons born in Australia stateless (see also Gleeson
CJ and Heydon J at [15]). Section 23D is a special provision
to prevent persons born in Australia from being stateless
where the person is not, and has never been, a citizen
of any country or entitled to acquire the citizenship of
a foreign country. Kirby J similarly held, applying Singh,
that '[the applicants'] birth in Australia
without any other present nationality' did not mean
that they acquired the constitutional status of Australian
nationality so as to take them outside the aliens power:
[80]. His Honour also concluded that the applicants had
a right to obtain Fijian citizenship so that they were
not stateless in international law and said that '[i]n
this case the consideration of potential statelessness
can therefore be ignored': [78], [82].

The Commonwealth Solicitor-General, David Bennett AO QC,
appeared as senior counsel for the Commonwealth and was
instructed by AGS.

Text of the decision is available at:
<http://www.austlii.edu.au/au/cases/cth/HCA/2006/28.html>

Constitutional decisions in brief

David Bennett

Canberra
David Bennett Deputy Government Solicitor
T 02 6253 7063
F 02 6253 7303
david.bennett@ags.gov.au

Graeme Hill

Canberra
Graeme Hill Senior Lawyer
T 02 6253 7080
F 02 6253 7303
graeme.hill@ags.gov.au

Dalton v New South Wales Crime Commission
High Court of Australia [2006] HCA 17; (2006) 226 ALR 570,
10 May 2006

In this case the High Court unanimously upheld the
validity of s 76 in Pt 4, Div 4 of the Service and
Execution of Process Act 1992 (Cth), which empowers state and territory
supreme courts to grant leave to serve interstate a subpoena
issued by a state tribunal performing investigative functions
(here, the New South Wales Crime Commission). Section
76 was a valid exercise of the Commonwealth Parliament's
power in s 51(xxiv) of the Constitution to make laws
with respect to 'the service and execution throughout
the Commonwealth of the civil and criminal process and
the judgments of the courts of the States'.

The High Court had previously decided that the word 'process' in
s 51(xxiv) was not governed by the words 'of the
courts'. That is, s 51(xxiv) was a power to make
laws 'with respect to the service and execution of
(1) the civil and criminal process of the States, and (2)
the judgments of the courts of the States' (Ammann
v Wegener (1972) 129 CLR 415 at 436 per Gibbs J). The appellant
accepted this position but argued that the words 'civil
and criminal process of the States' only applied
to process (such as a subpoena) issued by state bodies
performing adjudicative functions and did not extend to
process issued by a body performing an investigative function.
The High Court rejected this argument.

In a joint judgment, Gleeson CJ, Gummow, Hayne, Callinan,
Heydon, and Crennan JJ said that 'the words "civil
and criminal" are used in s 51(xxiv) not as words
of limitation but to embrace within the head of legislative
power all that might properly answer the description "process" ':
[28]. The joint judgment rejected the argument that there
was a clear division carried into s 51(xxiv) between 'adjudicative' and 'investigative' functions.
Their Honours noted, for example, that courts in England
and Australia had historically exercised a range of administrative
and investigative functions: [45]. Given that 'process' in
s 51(xxiv) could extend to process in aid of the investigative
functions of courts, there was no basis for excluding process
in aid of the investigative functions of tribunals: [43].

Rather than attempting an exhaustive definition of the 'process' covered
by s 51(xxiv), the joint judgment considered whether the
type of process covered by Pt 4, Div 4 was 'process' within
s 51(xxiv). The joint judgment relied on various matters,
in combination, to conclude that it was ([50]–[53]):

a 'subpoena' compelled a person to attend

the reason for attendance was to give evidence on oath
or affirmation before a tribunal established by state law
performing an investigative function

the out of state service of a tribunal's process
was subject to obtaining the leave of the Supreme Court
of the issuing state.

The joint judgment noted that s 51(xxiv) might support
a scheme that did not have all of these features; however,
it was unnecessary to decide: [53].

Kirby J wrote a separate judgment also upholding the validity
of s 76.

The Commonwealth Solicitor-General, David Bennett AO QC,
appeared as senior counsel for the Commonwealth Attorney-General
and was instructed by AGS.

<http://www.austlii.edu.au/au/cases/cth/HCA/2006/17.html>

Vasiljkovic v Commonwealth
High Court of Australia [2006] HCA 40, 3 August 2006

In this case the High Court (Gleeson CJ and Gummow
and Hayne JJ, with Heydon J agreeing; Kirby J dissenting)
upheld the validity of key aspects of the Extradition
Act 1988 (Cth).

The Court held that the Extradition Act validly provided
for the administrative detention of persons (including
Australian citizens) while a decision was made on whether
the person should be surrendered for extradition. The decision
to detain is made by a state magistrate exercising administrative
power in a personal capacity and not as a member of a court.
Like immigration detention, detention for the purposes
of extradition is one of the exceptions to the general
principle derived from the separation of judicial power
effected by Ch III that ordinarily a person could only
be detained under Commonwealth law for a breach of the
criminal law, which could only be determined by a court
exercising judicial power. The Court also held that the
administrative detention was valid even though the Extradition
Act did not require that the country seeking extradition
establish a prima facie case that the person committed
the alleged offences. Finally, the Court said that the
Extradition Act was supported by the external affairs power
in s 51(xxix) even though there was no extradition treaty
between Australia and Croatia, the country seeking extradition.
The external affairs power is not limited to implementing
treaties and extends to laws concerning Australia's
relations with other countries, such as extradition.

AGS Chief General Counsel, Henry Burmester AO QC, appeared
as senior counsel for the Commonwealth and was instructed
by AGS.

<http://www.austlii.edu.au/au/cases/cth/HCA/2006/40.html>


About the authors

David Bennett heads the AGS constitutional litigation
practice. He has advised the Commonwealth on constitutional
law issues for more than 20 years.

Andrew Buckland has run significant constitutional
cases in the High Court and other superior courts. Prior
to joining the constitutional litigation practice, Andrew
advised a number of Commonwealth clients on constitutional
and other public law issues.

Robyn Briese has been involved in a number of
recent constitutional cases in the High Court and other
superior courts and has advised on constitutional issues
raised by notices given under s 78B of the Judiciary
Act 1903.

Graeme Hill has been involved in major constitutional
cases as counsel or instructing solicitor. He has particular
expertise in federal jurisdiction and inter-governmental
immunities.

AGS contacts

AGS has a team of lawyers specialising in constitutional
litigation. For further information on the articles in
this issue, or on other constitutional litigation issues,
please contact the authors or practice leader Deputy Government
Solicitor, David Bennett.

For information on general litigation and dispute resolution
matters and services please contact any of the lawyers
listed below.

Canberra
Jenny
Anderson

02 6253 7401

Sydney
Julia Hall

02 9581 7432

Melbourne
Susan Pryde

03 9242 1426

Brisbane
Barry
Cosgrove

07 3360 5647

Perth
Graeme
Windsor

08 6268 1102

Adelaide/Darwin
Sarah Court

08 8205 4283

Hobart
Peter Bowen

03 6220 5474

ISSN 1329-458X (Print)
ISSN 2204-6542 (Online)

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