Vunilagi v The Queen & Anor [2023] HCATrans 3 (8 February 2023)

Last Updated: 8 February 2023

[2023] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C13 of 2022

B e t w e e n -

SIMON VUNILAGI

Appellant

and

THE QUEEN

First Respondent

ATTORNEY‑GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

Second Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 FEBRUARY 2023, AT 10.00 AM

Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.S. STELLIOS for the appellant. (instructed by Hugo Law Group)

MS K.L. McCANN: May it please the Court, I appear with my friend, MR K.V. LEE for the first respondent. (instructed by Office of the Director of Public Prosecutions (ACT))

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory: May it please the Court, I appear with MS H. YOUNAN, SC and MS A.M. HAMMOND for the second respondent. (instructed by Government Solicitor for the Australian Capital Territory)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MR B.K. LIM and MS C. ERNST on behalf of the Attorney‑General of the Commonwealth of Australia, intervening. (instructed by Australian Government Solicitor)

MR N. CHRISTRUP, SC, Solicitor‑General for the Northern Territory: If the Court pleases, I appear with MR L.S. PEATTIE on behalf of the Attorney‑General for the Northern Territory, intervening. (instructed by Solicitor for the Northern Territory)

KIEFEL CJ: Thank you. Yes, Mr Walker.

MR WALKER: May it please your Honours. All the grounds in this appeal arise because our client was convicted by a trial heard and determined by a judge alone, notwithstanding our client’s resistance for his part to the process by which that dispensation of a jury was ordered. I will come very quickly to the provisions which purported to permit and regulate that dispensation of a right to jury trial for these counts, which were triable on indictment.

But the case, as your Honours have seen in the sequence, logically, of the grounds, to which sequence I will come in just a moment, also raises, fundamentally, questions concerning the relations of the Australian Capital Territory, both before and after so-called self-government and, in particular, the light thrown on it and in turn, the effect on section 122 of the Constitution.

It is, of course, all seen through a prism of the claimed effect for which we contend ultimately in the relevant ground or sub-grounds of section 80 with which this case is principally concerned, but fundamentally, it has at its heart an understanding which we argue should be refined in this case of the position of section 122 and, in particular, the Australian Capital Territory, being the Territory contemplated and accomplished under section 125 of the Constitution.

GAGELER J: You are still persisting with the Kable ground, are you?

MR WALKER: I am going to start with the Kable ground, which is a useful way of coming directly to the provisions in question and yes, I do persist in it. There is one critical proposition involved in it which is either good or bad and which can be briefly advanced. Justice Gageler’s question, however, brings me to the question of sequence. So, we start with an argument that takes as its premise that some such law can be enacted.

GORDON J: Does that mean you are taking ground 2 first?

MR WALKER: No, no, no. I start with ground 1 ‑ ‑ ‑

GORDON J: I see.

MR WALKER: ‑ ‑ ‑ concerning the so‑called Kable point. It has as its premise that some such law, dispensing with the jury, can be enacted ‑ ‑ ‑

GORDON J: I see.

MR WALKER: ‑ ‑ ‑ and our argument simply is, the manner of this enactment has the forbidden effect – institutionally on the Court – by reason of what I am going to summarise as being an arbitrariness ground which can be put quickly by reference, in particular, to subsections (3) and (4) of section 68.

GORDON J: Is that any more than a construction question of 68BA(3) and (4)?

MR WALKER: No, it is the characterisation upon a construction of those provisions. It is nothing more than that. If we are wrong in that characterisation which, were we successful, would be sufficient for our success overall, we then move to the question whether, in any event, such a law in its effect on a trial on indictment is permitted by the terms of section 80. There, of course, as your Honours know, our argument is divided into some logical steps, including fall‑back alternatives that I will elaborate as I come to them. But the logic of the matter includes first, of course, addressing the authority – such as it may be – constituted by this Court’s decision in Bernasconi.

If necessary, logically, upon failure of our first reading of Bernasconi – our preferred reading of Bernasconi – we then come to the point of the Court determining whether to permit argument by way of so‑called re‑opening Bernasconi. As your Honours have seen, if so, we contend that, understood in the broader sense that would constitute a barrier to our argument in this case, Bernasconi is plainly wrong for the reasons that we have set out in writing and which I will elaborate in address.

But, having set aside Bernasconi, the question then remains what ought to be the proper outcome of the coherent application of all relevant provisions of the Constitution to the full front of which, of course, are sections 80 and 122. Not alone, of course, but they are at the heart of the matter. And it is in that area that, as your Honours know, there is the issue concerning the characterisation of what I am going to call, with some trepidation, the picked‑up laws governing and creating criminal offences in the Australian Capital Territory by reason of an exercise, as we would put it, plainly of section 122 power, so as to pick up and apply as law within the Territory the law constituted by the Crimes Act (NSW).

Now, as your Honours know, on the face of the provisions creating and rendering punishable the offences for which our client was convicted, there is no sign of their provenance as New South Wales picked-up law, by reason of a section 122 provision legislated by the Commonwealth Parliament. But, as we have set out in writing and as I shall explain and address plainly, that is the provenance, not by way of mere history, but by way of current application; that is, legal force.

If we make good that description of the quality of the laws creating the offences of which our client was convicted, then we submit it is a small step, if a step at all, in applying the proper approach to the meaning of the expression which is found in section 80, “any law of the Commonwealth”, to take one or other of the available logical routes either so as to describe such picked‑up laws where the pick‑up is by Commonwealth enactment as thereby laws of the Commonwealth, or, alternately, if we were to fail in that preferred approach and the pick‑up somehow converted these New South Wales laws by Commonwealth mandate into something which is not a Commonwealth law but which is a Territory law so‑called, then we submit nonetheless that pedigree, that stream of legislative authority, firmly characterises the resultant regime as falling within the description of any law of the Commonwealth for the purpose of safeguarding the involvement of a jury in trials on indictment of such offences. That is the logic of the sequence of the different arguments that we seek to advance in this Court.

Can I come immediately to the provisions which are first the subject of the Kable argument. Your Honours will find the provisions in the form that matters for this part of the argument behind tab 10 of the book of authorities, and relevantly starting at page 478, Part 7 of the Supreme Court Act 1933 (ACT). In section 68A, the expression “criminal proceedings” is one which, by the dictionary – the relevant provision of which you will find page 534 – means on indictment, so that section 68A – presumably, not accidentally – in that part of its language echoes what might be regarded as the critical part of section 80 of the Constitution. Of course, “except as otherwise provided” provides the challenge, which gives rise to grounds 2 and following in this appeal.

Section 68B, which would, as it were, incidentally, be a casualty of our success in the latter grounds of our argument, but which is not relevant to ground 1 except as a matter of interpretation, provided for the person accused to have two forms of election – and one can see how that is regulated. Thus, for example, the cynical but surely salutary provision to be found in subparagraph 68B(1)(c)(i), so that the election against a jury is safeguarded by the certificate of legal advice, is further safeguarded, perhaps in an opposite direction, by the timing requirements in paragraph (c), and is to be available, in case of joint trials, only in ways that would avoid what might be called chaos – see paragraph (d).

Then the second election in subsection (2) can be seen, again, to give dispositive power to a decision of an accused, and it certainly advances the notion that 68B is a provision which recognises the peculiar and highly significant nature of the involvement of a jury. Excluded offences – I do not need to spend much time on this; you will see them itemised at page 529 of the bundle – are offenses of a kind which, as a matter of policy – revisitable from time to time, no doubt – cannot be the subject of an election, again, from what I will call the community’s rather than the accused’s point of view, signalling the significance of the involvement of a jury. That was the position which, as to its main features, governed before the COVID emergency.

This case then arises because of a legislative response to the COVID emergency which, as your Honours know, had a physical effect on the possible deployment of human bodies in enclosed spaces, both by way of concentration as a result of stipulated distancing, and, obviously enough, the limits of available spaces to hold the number of persons involved in the trial – particularly during empanelment – given those mandated spacings.

Section 68BA, which operated only for a closed period of history – it is now history – announces its emergency character in subsection (1). We accept that the emergency character is something which is relevant to a reading of the provision as a whole, but we would resist the notion that the emergency character could substantially alter the contextual meaning of the words that follow.

In particular, there is nothing in the emergency character which supplies any answer to what we submit are the unanswered questions raised by subsection (4) to which I am about to come. Subsection (2) may be passed over as simply recording the limited emergency effect of these provisions ‑ ‑ ‑

STEWARD J: Just before you move away from (1), the phrase in (1):

if the trial is to be conducted –

do you accept that that is simply a reference to when a judge of the Supreme Court decides that the trial is ready to be conducted in accordance with ordinary principles?

MR WALKER: I am not sure whether they are principles so much as practice ‑ ‑ ‑

STEWARD J: Or practices.

MR WALKER: It would not be sensible for me to resist the notion that the timing of when a trial is to be conducted would be revealed by examination of the record of the court as to what I will call generically readiness, hearings and their conclusions. Ultimately, it is the fixture. Now, fixtures are not, alas, in stone, but certainly we would accept that if a case has been fixed for next Wednesday it can be said that it is a case to be conducted during a period commencing next Wednesday. There are other less categorical propositions than fixture which presumably could supply an answer to the question: is this trial one which is to be conducted in whole or in part during the emergency period?

STEWARD J: If a trial meets the requirements of (1) it is ready to be conducted during the period. Why is there any discretion, then, on the part of the judge to comply with subsection (4) and then (3)?

MR WALKER: May I defer that answer ‑ ‑ ‑

STEWARD J: Yes, of course.

MR WALKER: ‑ ‑ ‑ and I am obliged to your Honour. As I understand Justice Steward’s question, it involves certainly the question whether subsection (1), by announcing what “this section” applies to encompasses subsection (4) in such a way as to require a notice in every case.

STEWARD J: Subsection (1) is the trigger.

MR WALKER: Yes, a notice in every case of a trial which is to be conducted during the period. Now, leaving aside the fuzzy edges of that category of trials to be conducted during the period, which I do not rely upon as any part of my argument, I understand, I hope, Justice Steward’s question and may I try and answer it in a reading of subsections (3) and (4) to which I now proceed.

In subsection (3) the familiar usage is adopted of using the language of discretional power, that is, “The court may order”, upon a state of affairs which is reached judicially, namely, if the court is “satisfied”, and then phrases are used, including in (3):

(b) is otherwise in the interests of justice.

that might, but in this case should not, involve the notion that if satisfied there is virtually no discretion. Why I say it should not in this case is because these are not words in this context that would involve a dichotomous outcome, namely, it being in the interests of justice that there be, or not be, a jury, mutually exclusively. Or to put it another way, that the interests of justice are not, in themselves, a discrimen between having a jury or not having a jury, the interests of justice may be served both ways.

The first of the criteria in subsection (3) for that ultimate discretionary decision by the Court under subsection (3), to dispense with the jury, uses an expression which is not so compelling in terms of depriving an apparent discretion of any real choice. Because just as, we submit, being in the interests of justice does not dictate one way or the other, that is, one to the exclusion of the other with the two choices, jury or no jury:

orderly and expeditious discharge of the business of the court –

equally does not, as a matter of informed opinion by a court, necessarily preclude a jury or require a jury. There are value judgments to be made, evaluative assessments to be made and finally, a discretion.

That expression, “the orderly and expeditious discharge of the business of the court” is familiar to your Honours from a number of provisions. The example in this very statute is to be found in section 7 concerning the responsibility of the Chief Justice. That highlights, of course, and none the worse for it, that there are administrative rather than strictly judicial functions contemplated to be exercised in the course of the considerations under subsection (3). And I stress, none the worse for that.

So, those are the criteria by which the Court is to proceed to consider the possibility of taking the drastic step of dispensing with a jury: “orderly and expeditious discharge of the business of the court”, no doubt during the COVID emergency being informed by the fact that the public health requirements would be such that you may not be able to have any jury hearing, depending upon factors relevant in this case, such as multiple defendants, or you may be able only to have one at a time.

GAGELER J: Mr Walker, I think I am understanding you to say that we read subsection (3) as requiring two jurisdictional facts to be satisfied and when they are satisfied the Court retains a discretion?

MR WALKER: Yes. Yes.

GAGELER J: To be exercised perhaps more generally than by reference to those two criteria.

MR WALKER: Yes, and though this may sound like a concession, it is not really. Of course, exercise judicially, of course. And no part of our argument suggests that “the court may order” is an expression that somehow excludes proper judicial decision-making. It does not. It requires it. But, we say, the nub of the matter, the whole of our round one comes when one moves to subsection (4). Now, it comes after subsection (3), but only in the printing. It comes before subsection (3) in terms of the administration of the law. As his opening words make clear:

Before making an order under subsection (3) –

Now that encompasses of course, before undertaking the investigations, factual as well as evaluative, that will inform the jurisdictional facts (3)(a) and (3)(b), before all of that:

the court must –

(a) give the parties . . . written notice of –

what is called:

the proposed order –

Now, it would appear from the language of the opening lines of subsection (3), and that expression “the proposed order” that is found in paragraphs (a) and (b) of subsection (4), that it is quite simply the order that the proceeding be tried by judge alone. It raises a question as to what does “proposed” involve? Does it involve that there has been an anterior decision – it may be a screening decision, it might be regarded as – by a member of the court – by a judge – that the particular case, or proceeding, with the parties to whom notice is going to be given, is a candidate sufficiently seriously for a subsection (3) order, as to allow it to be said fairly that the court proposes to make it.

GORDON J: Mr Walker, why would we not read (3) as being the power to be read with (4), and (4) is no more than an express requirement for natural justice to be accorded before the order is made in (3)?

MR WALKER: One, of course they have to be read together. Two, of course subsection (4) concerns procedural fairness. But three, no, that does not mean that is all that subsection (4) does.

GORDON J: Can I ask a different question? One could not do (3) without (4).

MR WALKER: No, you cannot. That is my very point, for this reason. The only cases in which a subsection (3) order could be made are those in which there has been subsection (4) notice.

GORDON J: Natural justice accorded under (4).

MR WALKER: That is why Justice Steward’s question, with respect, now falls to be answered. If the meaning of 68BA as a whole – particularly what I have been asked to consider concerning subsection (1) and subsection (4) – if that meant that every case falling within the notion of being a criminal proceeding where the trial was to be conducted during the emergency period, if it was every case – as a matter of legal meaning – then we fail in ground 1. There is nothing in our ground 1. However, we say, that is certainly not what subsection (4) means. Whatever one understands by the expression, “written notice of the proposed order”, it would appear that something is involved by way of a decision – an assessment – by a member of the court in order that that order be proposed.

STEWARD J: Just to be clear, by every case, I would say that is every case that meets the phrase of (1), if the trial is to be conducted during the period.

MR WALKER: That is what I meant to convey ‑ ‑ ‑

STEWARD J: Yes, all right. Thank you

MR WALKER: ‑ ‑ ‑ and I entirely accept that if that is the proper reading of BA, particularly (1) and (4) in combination, then we fail. Because there would be no arbitrariness involved at all. Rather, there would have been a rather, if I may put it this way, clunky drafting to stipulate that the parties in every criminal proceeding where the trial is to be conducted during the emergency period shall be notified of the proposal to dispense with the jury, et cetera.

Nowhere do you actually find that, and that is why in our submission those words the “written notice of the proposed order” certainly contemplate that in some sense the order comes to be proposed. It would appear it is only the court that is an entity proposing. The parties are not invited to propose, though they may of course take a favourable stance to the proposal. And it is for those reasons that one can say that on the face of it, and it would appear from the record in this case that this probably is how things were administered during this period, is that not every case automatically, by a reading of subsection (1) and subsection (4), came to have an argument in which the parties were involved about subsection (3).

And the whole of our point, ground 1 is that exposure to the peril, as my client would have it, of not having a jury for his trial was as result of an anterior decision by the court – does not matter that it might be administrative rather than judicial, is part and parcel inextricably and closely yoked to the judicial exercise under subsection (3) – that a subsection (3) argument will only be had in the case of cases selected under subsection (4).

GAGELER J: Mr Walker, does your argument have the consequence that any power conferred on a court to be exercised of its own motion must defend the Kable principle?

MR WALKER: I hope not, because that would be impossible for me to maintain.

GAGELER J: If the discretion under subsection (3) is a discretion which must be exercised judicially to conform with the Kable principle.

MR WALKER: Yes. And I accept that.

GAGELER J: Procedural fairness is required to conform with the Kable principle.

MR WALKER: I accept that. We assert it, we assert it.

GAGELER J: Is not (4)(a) implicit in that aspect of the judicial process which is required by the Kable principle, and is not (4)(b) also implicit, subject to the details of timing?

MR WALKER: The intended effect of (4)(a) and (b) is plainly to serve that inherent and mandatory quality of judicial proceedings. I do not need to quibble about it, it does not have to be in writing. The institutional requirement does not require writing. But, no, I accept what your Honour is putting to me. But that does not mean that subsection (4) falls out of the scheme in relation to the identification of the persons, the parties, that is, the proceedings in which a subsection (3) order becomes a possibility. There cannot be a subsection (3) order made unless there has been subsection (4) notice.

EDELMAN J: Mr Walker, if one assumes that the premise of your argument here is correct – that there is some further underlying discretion in subsection (4) before the court issues the proposed order ‑ ‑ ‑

MR WALKER: May I avoid the word “discretion” – there is an assessment – presumably administratively.

EDELMAN J: Why would that assessment not be conducted by the court, as subsection (4) requires, in accordance with the criteria in sub‑paragraph 3, albeit not on a final determination basis?

MR WALKER: That is the crux of the matter.

GORDON J: And what is the answer to the question?

MR WALKER: The answer is that, first of all, subsection (4) does not involve any – its wording does not involve any indication that the court is bound to give subsection (4) notice to – in the case of every proceeding that may arguably meet the criteria in subsection (3). In other words, it does not beat – it does not defeat our point that there is an arbitrariness of selection for no reason supplied by the text. That is the first point.

The second point is that there is, under subsection (4), no indication whatever as to every case which presumably someone with a responsibility institutionally to review every case meets some particular degree of cogency with which it might be regarded as arguable that (3)(a) and (b) might be met after argument, so that there is neither the importation of the criteria textually into subsection (4) from subsection (3), nor any indication as to what is required in order to provide the mandatory notice upon this notion of the order being proposed.

KIEFEL CJ: Mr Walker, is it important to your argument – you have referred to exposure to the peril of not having a duty, which implies some view that having a jury is a right. Is that part of your argument? Or something close to a right?

MR WALKER: It is something close to that. Can I try and backtrack to what I have earlier said under 68B? It is plain that 68B – that is, the regime that would operate but for 68BA if 68B operated – it is plain that 68B gives, in a regulated way, the two elections I talked about, and it gives it to the accused person who it may be regarded will exercise it according to self‑interest. In other words, you would not elect against a jury if you wanted a jury, and you would certainly therefore insist upon the process that 68A stipulates in the absence of your election to the contrary. In that sense, there is a right. So, 68A stipulates that the ‑ ‑ ‑

KIEFEL CJ: It is a matter about which you have a choice.

MR WALKER: Yes.

KIEFEL CJ: That is what you are saying. You would otherwise have a choice.

MR WALKER: The law provides the regime – jury. The law provides an election to dispense with that given to the accused, uncontrolled by the authorities, let alone by the court, indeed, to such an extent there must be a certificate of legal advice and appreciation of it, et cetera.

KIEFEL CJ: Now, in practical terms, one would imagine that the provisions of 68BA(3)(a) and (4) would be conducted something like this, that there would be a number of criminal trials either listed or proposed or possibly to be listed during the particular period in question.

MR WALKER: Yes.

KIEFEL CJ: Someone reviews, someone or more persons – judges, or persons who have something to do with the administration of the court review those cases, and they would be looking for likely candidates.

MR WALKER: Yes, is the short answer. Yes.

KIEFEL CJ: Yes. So that is the assessment you are referring to.

MR WALKER: Yes, it is.

KIEFEL CJ: And the likely candidates would then receive a notice. What is the vice in going through a list and determining which – this process under (3) and (4) is quite clearly a form of case management, is it not?

MR WALKER: Unquestionably it is case management. Now, as we have written and as I will briefly put now, the words “case management” do not, of course, dispense a court from the institutional requirements that I am arguing about.

KIEFEL CJ: No.

MR WALKER: And no one is, I think, urging such a thing. But we accept this is case management, and we also accept the importance of case management.

KIEFEL CJ: So, nothing much occurs until the parties are before the court. After the notices are given, argument is heard and then a decision is made. So, the vice is in the pre‑assessment? It is not in the hearing itself?

MR WALKER: No, no.

KIEFEL CJ: It is in the pre‑assessment?

MR WALKER: Exactly. It is ‑ ‑ ‑

KIEFEL CJ: And what is the vice?

MR WALKER: The vice is that there are no either disclosed or argued criteria to be selected as one of those proceedings, the parties to which, depending upon their view of whether they want a jury or not, will be at peril of losing what would otherwise be the stipulated mode of trial.

KIEFEL CJ: Is this rather to look at the matter, though devoid of practical context, this is a COVID period where there are requirements of social distancing which have effects upon how a trial can be conducted. They are in place, there have been practice directions, trials with juries have been dispensed with altogether and then not, and then the court is obviously trying to have some matters tried. In a practical sense, the pre-assessment would have to have regard to what is possible, and what is not practicable in terms of how a trial can be run. Is not that what would be involved?

MR WALKER: If one were devising an appropriate law for this emergency ‑ ‑ ‑

KIEFEL CJ: But you derive it from your background and your context of what is happening.

MR WALKER: Our point is, and is simply – I am in danger of repeating myself, I can move on. Our point is simply that subsection (4) does not do any of that. Subsection (4) leaves all of that to decisions which are neither argued – they are obviously ex parte – and they are never the subject of any reasons. Why me, is an appropriate question to test the requirement for a court to give reasons for certain decisions.

KIEFEL CJ: If the pre-assessment – if one is looking for a trial that really cannot be conducted within the confines of COVID requirements, if the pre‑assessment about that is clearly wrong, then that is argued before the judge as a result of the notice being given, and that is determined.

MR WALKER: One available approach, were this purely a procedural fairness argument, would be to say that the subsection (3) hearing and the judiciary discretion exercised as a result catches up and cures any antecedent lack of participation by the parties. It is a familiar tenant of administrative law, so-called internal appeals. That is not, however, the way in which we put the point. We say, subsection (4) is necessary in order to expose anyone to the possibility of a subsection (3) order, and the text makes that plain.

KIEFEL CJ: So your argument would be that everyone who is listed for a criminal trial, or will possibly have a criminal trial in the relevant period, should receive a notice?

MR WALKER: I am not here to argue for how the law should have been written.

KIEFEL CJ: But that would be equal treatment, would it not?

MR WALKER: If everyone had been equally treated in that fashion, we would not have our current argument. That is right. But that is not what the law says.

EDELMAN J: Do you accept that, on the assumption that subsection (4) requires an anterior decision to be made, that if that anterior decision had to be governed by the criteria in (3)(a) and (3)(b) that the law would not be invalid?

MR WALKER: I do.

EDELMAN J: If that is so, why would subsection (4) not be construed consistently with underlying premises of interpretation that the legislature is acting in a rational way such that the decision being made on your premise under subsection (4) would be one that would be made where it was at least arguably in the interests of justice and at least arguably to ensure the orderly and expeditious discharge of the business of the court?

MR WALKER: I will put it as shortly as I can. The words do not say that. They certainly do not yield that every case listed for the – destined to be heard in that period has to be the subject of a notice under subsection (4). Combine those two matters and you have what we have called the inscrutable process of selection for subsection (3) argument.

GORDON J: I thought Justice Edelman’s argument was directed not at a notice to everybody. The construction he put to you was ‑ ‑ ‑

MR WALKER: No, I understand that.

GORDON J: Sorry.

MR WALKER: So there are two ways – I am trying to answer as well Justice Steward’s question. It is plainly the case that if this ‑ ‑ ‑

GORDON J: Well, there is a notice given ‑ ‑ ‑

MR WALKER: And I have made these concessions – if it had to go to everybody then ‑ ‑ ‑

GORDON J: There is a notice given to everyone. You can see there is arbitrariness.

MR WALKER: Exactly.

GORDON J: So then Justice Edelman put a construction to you which addressed no notice to everybody.

MR WALKER: The next part of my answer to Justice Edelman’s point is this: the wording of subsection (4) – in particular, the notion of “written notice of the proposed order”, with whatever meaning the word “proposed” has – does not allow by judicial gloss the substitution or the invention, as we would put it, of phrases such as “at least reasonably arguable”. That is what I meant earlier by saying there is nothing here about the degree of cogency. We know the law and legal policy has an array of possibilities there, prima facie is one of them. Those are ranges which are not explained by the text of subsection (4).

EDELMAN J: But if subsection (4) involves an anterior decision, that anterior decision must be, I think you have accepted, a decision that is made by reference to case management in response to what the Chief Justice put to you.

MR WALKER: Without doubt. I cannot – no.

EDELMAN J: What does case management involve if it does not involve at least questions about arguable:

orderly and expeditious discharge of the business of the court –

and “interests of justice”?

MR WALKER: Those are – that is a complete programmatic description of case management. I accept that.

GORDON J: Mr Walker, if you took (4) out and (4) was not there, it would be implied that notice would have to be given.

MR WALKER: Yes, and I have already accepted ‑ ‑ ‑

GORDON J: Well, it does not say something about (4).

MR WALKER: It may rise the question about (3) in that order as to who gets selected for that possibility. It is one thing for the Crown to have a role in the public interest to raise such a question, it is another thing for a court – an impartial court – to be doing so.

KIEFEL CJ: I would have thought it is preferable for the court to be managing the interest of justice.

MR WALKER: To be managing, but to be making orders for the dispensation of a jury in some cases and not in others where there is nothing materially different between those cases is the nub of our point. But the combination of the provisions in subsections (3) and (4) – and I have to add subsection (1) as well ‑ ‑ ‑

KIEFEL CJ: Why would we proceed upon the basis that an order might be made where there was no material difference between two cases? There is no material that we have to indicate that.

MR WALKER: There is nothing in these provisions which – if I am correct that it is not every case that has to be assayed for this possibility, then there is absolutely nothing to explain how you avoid a case which is materially identical being oppositely determined by default; that is, by not being the subject of a subsection (4) notice. There is nothing to ensure that there will be the equal treatment of equal cases with respect to the peril of losing a jury.

KIEFEL CJ: Just to be absolutely clear about it, your argument is not with respect to the determination as to whether under subsection (3) the proceeding will be tried by a jury?

MR WALKER: No.

KIEFEL CJ: It is only within the selection of those who receive a notice.

MR WALKER: Yes. It is the anterior selection of persons who, in our language and from our client’s point of view, are placed under the peril of an order under subsection (3). It is becoming subject to that possibility that is the nub of our argument. I have accepted that we lose it if, on a proper reading, either every case gets so assessed or, second, the criteria in subsection (3) are somehow supplied as the criteria not explicitly legislated in subsection (4) and – perhaps arguably against myself – conveyed by the word “proposed”. That is the whole of the argument.

KIEFEL CJ: Your submissions thus far have focused very much on the peril to the individual.

MR WALKER: Yes.

KIEFEL CJ: You have to connect this to institutional integrity.

MR WALKER: Yes.

KIEFEL CJ: So far, it is a little difficult to see why a court acting fiscally and responsibly, and acting in the interests of justice, would not make a pre‑assessment, rather than call over every case.

MR WALKER: Your Honour, it is quite impossible for me in, perhaps, now outmoded language of the reputation or standing of the Court, to gainsay what you have raised with me.

KIEFEL CJ: How is it effected?

MR WALKER: Seeking to address an emergency is, normally – however one might disagree with the merits – regarded as a good rather than bad government enterprise – including by the judicial arm. I entirely accept all of that. All we are saying is that, institutionally, the immanent possibility of an arbitrary selection of those who may lose the stipulated mode of jury trial by reason of the inscrutable selection for subsection (4) notice provides by its integral link to the subsection (3) exercise such a defect in the equal justice and lack of arbitrariness, aspects of the Kable principle as to produce the invalidity for which we contend.

KIEFEL CJ: So, if the subsections had added to them that the giving of a notice is to be conditioned upon the relevant court officer’s satisfaction that the case may be a candidate, given requirements as to social distancing and the like, that would overcome the problem?

MR WALKER: Yes.

KIEFEL CJ: It is a simple as that, is it?

MR WALKER: Yes, it is, as I think I said in answer to an earlier question to that effect. Yes. That is why the crux of the matter is: what can one read in subsection (4)? That completes what we want to say about ground 1.

Your Honours, it is plain from the existence of the provisions – not just the emergency provisions – that the role of section 80 in Territories has been characterised from the point of view of successive legislatures by the view that section 80 would not apply to an exercise of power under section 122 of the Constitution. But it is plain that that depends – and defends utterly – on a reading of Bernasconi.

KIEFEL CJ: Why do you start there, Mr Walker? Is not the first question whether or not the offences for which they were charged and convicted – your client was charged and convicted – are laws of the Commonwealth?

MR WALKER: Yes.

KIEFEL CJ: Is that not the threshold question?

MR WALKER: It is indeed, and may I go directly to the way in which we put that? Your Honours will find this appropriately threshold matter covered in our written submissions commencing in paragraph 32. And for the purposes of this argument, can I invite your Honours, please, to go immediately to the relevant iteration of section 34 of the Self-Government Act which you will find at 1066 behind tab 15 of the book.

Now, section 34 uses the expression “enactment”, see subsection (2) and subsection (4) and that is, as your Honours know, a term defined to mean, see sub-section (2) on page 1062:

(a) a law . . . made by the Assembly under this Act; or

(b) a law, or part of a law, that is an enactment because of section 34 –

So, section 34, say, by way of example, in subsection (2) takes certain laws made by the Commonwealth Parliament and stipulates that they shall be taken to be an enactment and it may be amended or repealed accordingly. In other words, shall be taken, by way of fiction, to be an Act made by the Assembly when they were not, by definition, see their description in Schedule 2. But, by reason of that stipulated and successful fiction, they become capable of being amended or repealed by the Assembly. That is for laws which are, as you see in Schedule 2, statutes enacted by the Commonwealth Parliament.

Then there is the language in subsection (4), which is at the heart of our argument in the multiple steps to which I am about to come. It uses the expression:

A law (other than a law of the Commonwealth) –

In fact, as you will see, as I say, from the heading Schedule 2, called up be subsection (2) that there is, as it where, a pair of kinds being contemplated by the drafter: laws of the Commonwealth and laws other than a law of the Commonwealth.

But, importantly, that expression in this Commonwealth Act is used to describe something that is in force in the Territory before the commencement date, or it was an ordinance, a term of art, or an Act of the Parliament of New South Wales – significant because, under section 125, the Territory for the seat of Government must be part of New South Wales – or an Imperial Act. And the application for Imperial Acts, of course, is an area all its own. So, it is other than a law of the Commonwealth that immediately before the commencement date was in force in the Territory and was one or other of those. That kind of law, by subsection (4):

shall be taken to be an enactment –

That is, an Act made by the Assembly, when that is obviously a fiction because it is only capable of being so treated because it was not an Act made by the Assembly:

and may be amended or repealed accordingly.

And in this case, as your Honours have seen from the history upon which we embark in paragraph 34 of our written submissions, the Crimes Act (NSW) was, to use a kind of jargon, picked up by the early seat of Government enactments. There is the Seat of Government Acceptance Act 1909, section 6 of which continued the Crimes Act (NSW) in force for the Territory, formerly in New South Wales. By reason of, soon thereafter, section 4 of the Seat of Government (Administration) Act 1910, it was given effect, again in the language of fiction, as if it were a law of the Territory. And all of that, of course, is by dint of Commonwealth enactment.

It is not by its own force as a law of New South Wales that after surrender by New South Wales and acceptance by the Commonwealth that law continued in force governing conduct criminally within that Territory. Leaving aside the fact of a reading of covering clause 5, which is not necessary at this point, it is plain that there was, in response to apprehensions concerning what might be called gaps, that there was, first of all, expedience concerning the exercise of jurisdiction by the State Supreme Courts. But second, and as we have drawn to attention now at paragraph 34, soon thereafter the Commonwealth enactment of the operation given force of law by the Commonwealth enactment of the New South Wales statute, as if it had continued in force.

EDELMAN J: Is this argument dependent upon the fiction of it taken to be an enactment? In other words, if the Territory had sufficiently adopted the law, such that the fiction no longer truly applied ‑ ‑ ‑

MR WALKER: Yes, we accept that.

EDELMAN J: ‑ ‑ ‑ would your argument still apply?

MR WALKER: At the point where it can no longer be said that force of law comes from a Commonwealth enactment and repeal and is what is sometimes called re-enactment, it would be the paradigm of that, so long as the new Territory legislation was within the self-government powers – and that may be assumed for the purpose of this argument, and for these offences – then there would cease to be the possibility of this first part of this argument; that is right, but that did not happen.

EDELMAN J: Then you would accept that it is no longer a law of the Commonwealth and even on the assumption that section 80 governed, or section 122 was subject to section 80, you would not fall within the terms of section 80?

MR WALKER: Not from the first part of our argument; that is the second part of our argument, which I come in separately, and make true alternatives; the second will arise only if I am wrong in the first. And we accept – we embrace the logic that Justice Edelman has put to me, so long as in that part of our argument, which turns on the proposition that a picked‑up or adopted law – it could have been a law of New Zealand, it does not matter; it is just text which is given the force of law by Commonwealth enactment in the Territory, the fiction or the deeming as if it were an enactment so that it might be amended or repealed can be said to have done two things. Immediately, it demonstrates that criminal offence is created by legislative fiat of the Commonwealth; surely, a core meaning of the class of case to be covered by section 80.

Second, it contains the potential of that matter being, so to speak, repatriated to the Territory by the Territory; not by any amendment, only by some, an amendment which substantively or materially altered the particular provision in question would have the effect of there no longer being a Commonwealth stream of authority necessary in order to show this is an offence against the law . . . . . the Territory. That has not happened.

GORDON J: So, are you going to come to deal with the Status and Citation Act and the subsequent amendments by the ACT Legislative Assembly?

MR WALKER: Exactly.

GORDON J: Because you will need to address those to meet that argument.

MR WALKER: I do. Absolutely.

KIEFEL CJ: But before you do that, for completeness, it is not just section 34 of the Self-Government Act that we need to trace, do we, to find out what happened to the Crimes Act. It is the Consequential Provisions Act which deals with the schedules and operates upon it?

MR WALKER: Yes, but it is 34(4) that has the critical or core effect, that is, without those provisions none of this argument could succeed. But 34(4) is not, so to speak, the first stage of a rocket that falls away. It remains necessary in order to show that the criminal law in question has the force of law until the picked-up or adopted provision, which happens to be New South Wales’, has been amended in such a way or repealed, which, by definition, will remove that stream of legal authority and substitute for it whatever offence or regulation of an offense is carried out by such an amendment; or in the case of a repeal, by some re-enactment or fresh enactment. None of that has happened in this case, if we are correct, concerning the Status and Citation alterations.

Now, what we say about matters of re‑numbering and citation is that they manifestly do not – as is well signified by their concern with labels and numbers – they do not alter the legal commands, prohibitions, and other elements of regime which is given force of law by section 34.

EDELMAN J: They may not do that, but they may adopt the commands and underlying laws ‑ ‑ ‑

MR WALKER: That has already been adopted. I think your Honour is putting to me that re‑numbering, re‑naming – or permitting citation so as to get rid of the New South Wales provenance in the title – affects the substantive adoption which section 34 unquestionably carried out when it was first enacted ‑ ‑ ‑

EDELMAN J: No, it is an adoption by the Territory Assembly.

MR WALKER: Yes, I am sorry, I was about to say – the first adoption is, as it were, the forced adoption – the Territory is given by the Commonwealth by a form of adoption those New South Wales laws. That was the immediate state of affairs, which we say in the case of these sexual offences, remains the source of law – the legal authority by which that conduct is criminalised and punishable – and that neither re‑numbering nor pretending that it did not come from the Crimes Act 1900 (NSW) – though it did – has any effect on that.

GORDON J: Just so I am clear, this is in the context of the transition for the Territory to self‑government. If one works through the chronology, which you have identified some parts of, we have got the 1988 Self‑Government Act, and what is apparent as one tracks the history – certain additional, in effect, control by the Legislative Assembly is transferred, you would say, by the Commonwealth – which we accept – which is understandable under section 122 ‑ ‑ ‑

MR WALKER: That is right.

GORDON J: ‑ ‑ ‑ the Chief Justice says including amendments which were made in 1988 to remove from Schedule 3, the Crimes Act ‑ ‑ ‑

MR WALKER: Yes.

GORDON J: What I do not quite understand in the argument at the moment, Mr Walker – and I am being very slow – is that there is then, in effect, a recognition of the ACT being a separate plenary legislative power, the Legislative Assembly having its own power, which gives rise to itself taking steps in the Status and Citation Act and the subsequent amendment of the Crimes Act itself. Is that not the point at which, in effect, the nexus to the extent that it is a law of the Commonwealth falls away?

MR WALKER: It is certainly a point at which that question needs to be addressed. I have already accepted that, in principle, matters of amendment and repeal ‑ ‑ ‑

GORDON J: Well, it is a bit more than that. It is adoption by the ACT itself in terms it makes, saying this is the Status and Citation Act, which it passes. It is then the amendment itself recognising its full plenary legislative power to amend the sections themselves as a law of the ACT.

MR WALKER: I think I am furiously agreeing with the premise and respectfully disputing that there is only one logical consequence.

GORDON J: Right.

MR WALKER: It is not a matter for the ACT as to whether it will take as its own laws foisted upon it by exercise of section 122. The government of the Territory involved, by exercise of section 122 power by the Commonwealth Parliament, the enactment of section 34, which is a convenient catching point for, among other things – among many, many other things – the continued application, as law within the Territory by dint of Commonwealth enactment, the Crimes Act (NSW). That had provisions which had been re‑numbered and restyled but not amended in any relevant substantive fashion, we submit, and certainly not repealed. A section is not repealed by being re‑numbered; a section is not repealed by being the subject of a stipulated mode of citation. That is just style.

STEWARD J: But the Act of 1992 is a bit more than citation, surely. I mean subsection (3) says that:

The applied State Act –

the Crimes Act:

shall be taken to be, for all purposes, a law made by the Legislative Assembly as if the provisions of the applied State Act had been re‑enacted in an Act passed by the Assembly and taking effect on the commencement of this Act.

That is not just labelling; that is not just smoke and mirrors.

MR WALKER: No, it is more than labelling. But it is fiction – the words “as if”. In other words, there is no ‑ ‑ ‑

STEWARD J: Legislative assemblies enact fictions all the time.

MR WALKER: Quite. But the Constitution does not proceed by way of fictions. In other words, something either is or is not within section 80, and a legislative provision that says it is to be deemed not to be within section 80 is in vain.

STEWARD J: Leaving aside your argument about how we should categorise all laws passed by the Assembly, do you accept that, at least from 1992 the Crimes Act was a law of the ACT Assembly?

MR WALKER: No, it was to be taken as if it were.

STEWARD J: By reason of an ACT enactment.

MR WALKER: No.

STEWARD J: Namely, the 1992 enactment.

MR WALKER: No. In our submission that is an enactment in vain. It was the Commonwealth law that made it so.

STEWARD J: I see. All right.

MR WALKER: The ACT cannot exercise a section 122 power. It does not have it. What it can do ‑ ‑ ‑

GORDON J: Does that argument extend to the 2008 amendments ‑ ‑ ‑

MR WALKER: Yes.

GORDON J: ‑ ‑ ‑ which alter elements of the offence. They alter the penalties.

MR WALKER: Your Honour, that is sharpest point against me on what I have conceded – indeed, asserted to be the effect of 34. But until an amendment sufficient to do so – or a repeal, which is obviously do so – the last remains one with its stream of legal authority coming from the Commonwealth. So, I am accepting that the ‑ ‑ ‑

KIEFEL CJ: The amendment would not be effective, then.

MR WALKER: I am sorry, your Honour?

KIEFEL CJ: The amendment is not effective then?

MR WALKER: No, no, no, section 34 says you can amend or repeal.

KIEFEL CJ: So, it becomes a mixed law. It becomes a law ‑ ‑ ‑

MR WALKER: The idea of mixture I had really hoped to avoid because it is a very difficult concept.

EDELMAN J: It is not a difficult concept if one takes the notion of adoption as one that involves almost any – or, perhaps, any – enactment by the Territory – any amendment by the Territory – no matter how minor, the amendment involves the concept of adopting the text.

MR WALKER: I understand that entirely, your Honour. It does not necessarily meet the problem of mixture. Can I try and address all of that as follows? There is no doubt that under section 122, the Commonwealth – as it could – enacted provisions – 34(4) is the one I am using – by which picked‑up provisions – that is, provisions picked up by section 122 laws – imposed by way, if you like, of willy‑nilly adoption on the Territory as the law governing the Territory – could then the subject of later legislative action by the new Assembly – by the post‑self‑government Assembly. None of our argument quarrels with that as a perfectly sensible operation historically demonstrated to have been achieved in this case.

The “pick‑up”, as I call it – the “adoption” is another word – is of a text – not of legislative or sovereign authority. The legislative or sovereign authority remains that of the Commonwealth, completely. But in the exercise of that authority, it gives a new legislative authority – not to the Commonwealth, but to the Territory – and it is an authority with respect to those forcibly adopted provisions, to amend or repeal as if they were laws made by the Assembly.

That can only be done by the Commonwealth Parliament. The ACT does not have a bootstraps constitution‑making capacity. That is why it needs to be extraneously correct for any Territory enactment to be, as it were, true when it attributes a description to one of these adopted laws as being an enactment of the ACT. That does not come about because the ACT enacts it to be so. It comes about only because as a matter of law, given the history of the provision in question, that can be seen to have been so.

I think there are two suggestions from the Bench that I need to deal with at that point. Justice Gordon raises with me an amendment, I think of a fault element and of a penalty ‑ ‑ ‑

GORDON J: Two elements.

MR WALKER: ‑ ‑ ‑ and I am not here to argue that they are immaterial details – on the basis that that is an historical fact of lawful exercise of legislative power by the Assembly which terminates the Commonwealth as the stream of legal authority for those offences, and that is a matter of judgment; that is, it is not a black and white proposition, it involves an assessment of the effect of those amendments. In our submission, the effect of those amendments introduces this notion of a mixture, by which I mean all the important – I should not say all the important – most of the important provisions of the conduct which is criminalised still remain, recognisably, and easily traced – as we have in our written submission – back to the Crimes Act 1900 (NSW). That is the first point.

They are not altered, and, in particular, there has not been repeal and re‑enactment with alterations in a manner familiar to us, particularly with our hyperactive many legislatures. That did not happen. Instead, the invitation that 34(4) laid out was taken up and there was an amendment of the New South Wales enactment given force of law by a section 122 enactment of the Commonwealth, the Self‑Government Act. One asks – and here comes the mixture point – well, as to the description of the sexual misconduct, which is not altered by this amendment, does its stream of authority derive from anything enacted by the Assembly? And the answer is no. The Assembly has not enacted anything about the kind of physical conduct that is criminalised.

In other words, the stream of authority for that being an offence remains undiluted, undiverted. The section 122 power that the Commonwealth had exercised to impose that New South Wales text as the law by dent of section 122 that would govern, relevantly, within the ACT. So I am afraid, with “mixture”, I say you ask yourself whether it is by any law of the Commonwealth that the offence is created against which my client has been held to have offended ‑ ‑ ‑

GLEESON J: Mr Walker, is that the same question as asking whether an offence is an offence against a law of the Commonwealth?

MR WALKER: Yes, it is.

GLEESON J: Well, that is not obvious to me.

MR WALKER: I will obviously have to come back to that. In order for it to be a law against a law – an offence against any law of the Commonwealth, in our submission, it must be an offence because it must be rendered a criminal offence and punishable accordingly because of an enactment of the Commonwealth Parliament, as opposed to because of the Constitution, et cetera; Colina, to which ‑ ‑ ‑

GAGELER J: Because of, or by force of?

MR WALKER: Well, both actually. I am going to say that because of is more general but it is given force by an aspect of that more general necessary connection. That is what I mean by the figure of speech, stream of authority; that, when you ask who is the sovereign who has said that is punishable, you cannot say as to the conduct that has never been amended by the Assembly, you cannot say it is the ACT Assembly that has done that. You can say it is the Commonwealth Parliament that has done that, by picking up the good idea that the New South Wales Parliament had, as a text. Now, true, the language of 34(4) is a bit – how shall I say – spare in its constitutional niceties, other than a law of a Commonwealth that was in force.

GORDON J: You might also say it is quite muscley in what it seeks to achieve.

MR WALKER: Yes, that is right. It has a fundamental effect, perhaps. Plainly, drawn by people with confidence that the section 122 power was capable of imposing, for the benefit of the denizens of the Territory, laws that continue to have, on their face, their provenance from other places. It could have been Jamaica. It was New South Wales – and for obvious reasons.

GAGELER J: It has to be read with section 22, which is the plenary power.

MR WALKER: Your Honour anticipates me. Section 22 is the reason why I do not jib at the well-known term plenary, although one might say about section 22 that it lacks any constitutional protection of a kind that section 106 gives in relation to States.

GORDON J: Would your submission require us to reconsider those decisions of this Court which have talked about the fact that the ACT legislative government is not either a delegate or otherwise ‑ ‑ ‑

MR WALKER: Or an agent.

GORDON J: Or an agent of the Commonwealth, that it has its own distinct legislative power ‑ ‑ ‑

MR WALKER: No.

GORDON J: Its own plenary power consistent with section 22?

MR WALKER: No.

KIEFEL CJ: Your point is that it just has not acted?

MR WALKER: That is right. And that is why Justice Gordon’s question, with respect, is the sharp point upon which this part of our argument might succeed in principle but fail in its application. The question is whether the amendments in question have had the effect of stopping it being true – rendering it no longer true that the Commonwealth’s legislative power – that is the law in section 80 – is the source of the force given by law to the creation of the offence and, thus, to its punishment.

EDELMAN J: What is the foundation for identification of the source of power – or for the norm that points to the source? Is that something that is external to anything in the Self‑Government Act, or can one find that in the Self‑Government Act itself? For example, if the Self‑Government Act has provided in express terms that any amendment, no matter how minor, by the Territory would amount to adoption and an exercise of the Territory’s own power to enact the particular law, would that be capable of providing a source to identify the exercise of power by the Assembly?

MR WALKER: It would still be a matter for this Court to ensure no such provision imposed a fiction for a constitutional finding. No law can deem itself to be valid as an exercise of power under the Constitution and, by parity of reasoning, we would say that neither a law say that renaming a statute, otherwise not altering its terms means, or is, the making of that statute by the Assembly as a new statute, where it was, at the time of renaming, already in force – that text was already in force by dint of a section 122 exercise of power and manifestly not by reason of an act of the Assembly.

If we are talking about acts of the Assembly, we are centrally talking about that which falls within the section 22 as controlled by other provisions of the Act and always with section 122 standing in the wings – which we do not need to worry about, except so as to dissolve any pretension of the Territory to have a 106–protected status like the States do for their legislative power – which is not of any great moment, except that it reminds one that section 122 is the constant chord through which one sees the capacity of the Territory to make laws. That does not mean ‑ ‑ ‑

KIEFEL CJ: The Court might take its morning break now, Mr Walker.

MR WALKER: I am so sorry, your Honour.

KIEFEL CJ: The Court will adjourn for fifteen minutes.

AT 11.26 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.39 AM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Your Honours, could I come back to the matter concerning amendment, repeal not having a footing on the facts of this case. Your Honours will have noticed that we very tersely addressed that in footnote 70 of our written submissions. Can I just flesh that out? First of all – and footnote 74 relates to a similar matter – I do not want to repeat what I have said concerning the status and citation provisions. I want to turn to the question of, arguably, substantive amendment which gives rise to this idea of mixture, whereby provisions continue, in effect, we say, by force of Commonwealth enactment alongside provisions that, textually, might be seen at first sight to be the result of an Act of the Assembly.

Those amendments include alteration to the penalty. I do not want to say anything further about that, apart from making the obvious observation that an offence is complete, obviously, regardless what the penalty may be from time to time, and that increasing a penalty or decreasing a penalty is, in our submission, of its very nature, different from creating an offence, and that section 80 has to do with the trial of the Crown’s contention that an offence has been committed. The jury, obviously, does not, as a matter of historical understanding, impose penalty. There is an institutional distinction between the existence and commission of an offence, on the one hand, and the sentencing by way of imposing a penalty, on the other.

Leaving, then, the question of the apparently substantive amendment to a fault element that is apparent only. The New South Wales provisions spoke of the accused, in order to commit the offence, being a person who knows that that other person does not consent or who was reckless as to whether that other person consents – an extremely familiar formulation.

The amendment, that which might give rise to the supposition that there has been substantive change, was to substitute for those words I have just quoted the phrase, he was reckless as to whether that other person consents, and wondering about whether that has introduced a substantive effect is completely dispelled by observing that a succeeding subsection inserted by the amendment provided as followed, for this section:

proof of knowledge or recklessness is sufficient to establish the element of recklessness.

So, you started off with “knows or is reckless”, textually, as it were, altered to “reckless”, but then textually expanded so that “reckless” means “knows or is reckless”, in other words, no substantive difference. That, in our submission, is an example of the kind of amendment, cleaning‑up, some might say, obfuscating, others might say, but in any event, altering linguistic expression without any substantive change at all, like changes to ensure that pronouns are appropriate, for example, from time to time.

Those are matters that will not amount to the kind of adoption that Justice Edelman was asking me about whereby it can be seen that a re‑ordering of words, sometimes simply a use of punctuation and conjunctions and different printing and some slight alteration of word order but no effect on the substantive meaning, that would not, in our submission, amount to an amendment which meant that there was no force of law of the unamended provisions any longer in play in prosecution of the offence.

Obviously, in this case, the text picked up and imposed by section 122 legislation, Self‑Government Act, section 34, on the Territory from the New South Wales Crimes Act remained the text with that section 122 force which governed the existence of the offence for which our client was prosecuted. It is for those reasons that though, in principle, a sufficient amendment and certainly any repeal under section 34 will put an end to the 122 stream of legal authority for the creation of an offence, that has not occurred in this case.

EDELMAN J: It is really a Ship of Theseus argument, is it not?

MR WALKER: I am sorry, your Honour?

EDELMAN J: It is really a Ship of Theseus argument. At some point enough of the planks are going to be replaced and you just say that it is not a new ship yet.

MR WALKER: Yes, I do not want to push that too far because the essentiality of plugging one small gap in a ship rather means that it is not just looking at the volume of changes.

GORDON J: The difficulty about all of this, is it not, is something which has once been described as a false dichotomy. If there is an amendment to an Act, it is – at least, I think, in Kartinyeri they looked at it and talked about, one does not sit there try and work out whether it is an amendment or a repeal or what it is. It is, if there is an amendment there is an alteration to the law. One does not sit there and make grades of change, do we?

MR WALKER: No, not ordinarily.

GORDON J: So, what does “not ordinarily” mean in this context?

MR WALKER: My answer is this: we have drawn to attention, I do not need to take to it, in paragraph 36, to this Court’s approach to a general description of “amend” as opposed to “repeal” in the Attorney-General (WA) v Marquet [2003] HCA 67; 217 CLR 545, I will not take you to it. There is nothing remarkable about that. What Justice Gordon has put to me is, of course, correct. The whole point about an amendment is that it alters the law in force. That is why the notion of mixture comes up. One does not and should not construe in amendment as being the same as repeal and re-enactment.

GORDON J: Well, that is the false dichotomy that was identified in Kartinyeri and rejected – as I remember Kartinyeri, my recollection may be poor.

MR WALKER: No, I am not suggesting that – what I am suggesting, your Honour is that why this is not, as it were, just an ordinary statutory interpretation investigation of what amend or repeal means, is because it is found section 34, which is the means by which there is a potential for an Act of the Assembly to become the source of law for an offence.

KIEFEL CJ: Well, that points out the fact that you read those words in context in section 34(4) ‑ ‑ ‑

MR WALKER: Yes.

KIEFEL CJ: ‑ ‑ ‑ read with section 22, do you not?

MR WALKER: Unquestionably. Section 22 lies there ready to be used, as the equivalent in the Northern Territory was used, to make their own ACT Criminal Code. But they have not. So, they kept in force, by inaction, as was understood to be the intended state of affairs in the case of inaction, the criminal law, the legal authority for which legal effect as the regime in force, coming from section 122 of the Self-Government Act. And contemplated, under section 22, pursuant to section 34, that there may be, of that law of the Commonwealth, under section 122, statute of the Commonwealth, that there may be, later, an alteration of the state of affairs by which it could be said that is a crime because of a law of the Commonwealth. It is thus an offence against the law of the Commonwealth that is thus regulated by section 80.

The potential change, re‑signified by the possibility of repeal, wholesale repeal, and the making of a Territory Act, which was their Criminal Code, which may have shown slavish imitation of the New South Wales precedent, but that does not matter. There needs to be a line drawn. There is nothing false by way of a dichotomy in such a case.

That has not happened with these provisions. Then our argument addresses, as we have to, can they not be a cessation of the Commonwealth as the source of the legal effect of that offence creation? Can there not be a cessation of that state of affairs by an amendment by an Act of the Assembly of this imposed New South Wales text – imposed, that is, by the Commonwealth under section 122. And we have accepted that, in principle, it is not possible to preclude that occurring.

In particular, an amendment, so-called, of a provision to enlarge the scope of conduct criminalised under a particular heading would obviously, in our submission, reveal that, in the case falling within that enlargement of the previously articulated offence, the stream of legal authority – the source of legal force for that offence being made out against a person accused of conduct falling within the enlargement ‑ would no longer be the Commonwealth Act, hence the so-called mixture and that would not be a difficult matter to describe.

That has not happened in this case. The only prima facie, superficially, apparently substantive change is revealed upon examination to have no substantive change at all; there is no enlargement or contraction of the nature of the offence. It is for those reasons and in that manner that the first way which we put the section 80 argument simply says, here is the enactment – the Self-Government Act – by which these provisions have force of law. They are, thus, plainly, offences against a law of the Commonwealth and for those reasons, section 80 applies.

Now that, of course, runs into, and shares some common jurisprudence with the second way – alternative way in which we put the argument. That alternative way says, even if these be offences created by laws of the Territory, not laws of the Commonwealth, then, nonetheless, for reasons which are partly shared with the first way in which we put our section 80 argument, everything is sourced in a Territory, which is the object of section 122 power, in an enactment of the Commonwealth.

GLEESON J: So, would the Commonwealth DPP be able to institute a prosecution for this offence?

MR WALKER: I am sorry, your Honour, I cannot remember. The particular provisions in power and authorising the Commonwealth DPP ‑ ‑ ‑

GLEESON J: But the functions of the Director include instituting prosecutions on indictment; for indictable offences against the laws of the Commonwealth.

MR WALKER: Yes. Well, if there is no carve‑out in the statute, then the answer would be yes. No doubt there are arrangements that would need to be made. I think I started with the proposition that there certainly has been a deal of legislation that might be understood as having turned upon what we earnestly argue is the weak read of broad statements in Bernasconi that section 80 is a stranger to section 122 and vice versa, which is what I now turn to.

GORDON J: Is this at paragraphs 9 and 10 of your outline of oral argument?

MR WALKER: I think the answer to that is yes. Yes. I should perhaps, before moving to it, note and given the time, I do not really need to go to the cases, we do urge that the citations from the two Eastman Cases which you will see we have supplied under proposition 8(a) in our outline, we urge that they very plainly show the correctness of the analysis which identifies Commonwealth law as the source of the offence creation, hence being the law against which an offence may be committed within the meaning of section 80.

KIEFEL CJ: But is not a timing problem pointed to in relation to the offence with which Mr Eastman was charged? The offence and the point at which he was charged occurred before the Self-Government Act came into force.

MR WALKER: It is not a timing problem. It is a fact of timing. But it certainly shows that, whilever the law in force in the Territory ‑ ‑ ‑

KIEFEL CJ: Well, the law might have had a different character at that point.

MR WALKER: After self-government?

KIEFEL CJ: Yes.

MR WALKER: Your Honour, I suppose the proper answer to that is, without I hope, laboriously going back to 22 and 34, is this. Self‑government in itself, that is, the expression in the name of the Act, does not sever the effect identified in Eastman of section 122 being the source of offence creation and thus the matter being an offence against a law of the Commonwealth. The word “self-government” itself does not do it. It is self-government, if I can be forgiven the expression, sub modo. You need to look at, what does self-government mean? It does not mean that you get anything like a section 106 protection for a Constitution or for legislative competence. It does not mean that.

We know that there are problems – not, I hope, for today – in relation to 109, but one thing is clear, 122 is not surrendered by the Commonwealth Parliament as to its potential use concerning the government of the Territory. So, whatever this self‑government is, they are not masters of their destiny, because they remain subject in every respect – great and small – to an exercise of power under section 122. That is, in our submission, highly significant when trying to understand what happened upon self‑government – which itself was a grant by an exercise of section 122 power.

If, as section 34 shows, it involved the continuation in force with a fictional status as if they were an enactment – they are taken to be an enactment – being something made by an Act of the Assembly, when they were not – if that occurs with respect to criminal laws, then the Eastman reasoning certainly shows that self‑government has not altered the existence of section 122 as the sole and necessary way of making that conduct criminal within the Territory after self‑government as before.

It is certainly the case that, with respect to what might be called timing, after self‑government, possibilities existed for the change of that law otherwise than by section 122, because after self‑government, the bestowal of legislative power – we do not need epithets like “subordinate”, and certainly we do not need to go to incorrect concepts like “delegated” – the creation of that legislative capacity – itself falling within the exercise of section 122 power – produces a new source of law‑making authority, a new source of the force of law given to statements about criminally proscribed conduct, which is why, if the ACT were to make its own Criminal Code, our argument would then move to the last way in which we put it – which is to say, even then, the section 122 nexus would render the matter within section 80.

Now that is a different argument – at the moment, I am on the common ground between those arguments, which is to say that, as things stand, after self‑government, section 122 remained the only source of the force of law to all of those offences to be found in the New South Wales statute adopted and imposed on the Territory by the Commonwealth previously. Could I take your Honours, please, to Bernasconi in [1915] HCA 13; 19 CLR 629 ‑ ‑ ‑

GORDON J: Sorry, are you going to come back and develop paragraph 9 of the outline of oral argument, or is that ‑ ‑ ‑

MR WALKER: Yes, I am.

GORDON J: I see, thank you.

MR WALKER: I am. Put shortly, we submit that the true holding in Bernasconi ought not to be understood so broadly as, first of all, to apply to a Territory like the seat of Government Territory under section 125 which must come from a geographical area, unquestionably within the territory of the Commonwealth. So much was not true of British New Guinea, which became Papua, which is the subject of Bernasconi. That would be enough – whether by way of humble distinguishing or simply identifying the true ratio of the issue before the Court to, in our submission, sideline Bernasconi and confine it, really, to a matter of history only to be dusted off, presumably, if we embark upon the programme of Pacific conquest.

GAGELER J: So, is the point of distinction that it was an external Territory or that it was not the ACT?

MR WALKER: The one that matters for us is that it is not a Territory made from a State – as section 125 requires the seat of Government to be. Whether there is a difference in my argument between – as your Honour puts it to me – is it because it was external in Bernasconi and the ACT is not external? We prefer to say, no, it is because Bernasconi had nothing to do with a Territory that had been made from the area of a State. In other words, had nothing to do with Territory in the land or geographical sense that was unquestionably part of the Commonwealth.

KIEFEL CJ: But the critical feature of either of them is that they are self‑governing, is it not?

MR WALKER: No, no.

KIEFEL CJ: Or not?

MR WALKER: No, it does not matter whether they are self‑governing, we submit, for the application of – for the availability, I should say – of section 122 as a continuing power of the Commonwealth. But that much is shown, of course, by the fact that the Self‑Government Acts are very important exercises of the section 122 power. They were not exercises that terminated section 122. It was not a suicide provision by the ‑ ‑ ‑

KIEFEL CJ: Mr Walker, what do you say is the ratio of Bernasconi? There are various views about what it is.

MR WALKER: I am going to be most tentative in my offering. I make no bones about it.

GORDON J: Before you answer that. Is that reluctance to do so reflective of the fact that it is decided in an era which is very different from an era in which we now currently live, both in terms of the advancement of self‑government to at least two or three Territories within Australia?

MR WALKER: Yes. One of the reasons why I am diffident in offering a reading is (a) because lots of other people have tried not always, if I may say so, convincingly to identify it, and I feel inadequate in that procession. Second, I actually want to persuade your Honours that you cannot find, clearly, a statement – and that is a reason why you should feel no compunction in not regarding yourself as bound for the purposes of this case by anything in Bernasconi.

GORDON J: Is it appropriate then that you identify what you – or do you think that there is a narrow ratio that is available from it? I mean, there have ben distinctions drawn between narrow and broad.

MR WALKER: We have attempted that, and it is along the lines of my negative proposition with which I have already started; namely, Bernasconi had nothing to say about Territories made from areas of the Commonwealth such as is true of section 125 – ACT, seat of Government. So, whatever might be the merits of its holding on the issues that were before the Court in Bernasconi, it certainly has nothing to do with this case.

KIEFEL CJ: Just before you leave that point, what is the point of distinction between the Territory in Bernasconi and a Territory made from the State which is relevant to the application of section 80?

MR WALKER: If I were to jump to Mr Justice Isaacs, it is the bizarre notion of the seat of Government Territory falling within the descriptions to which I will come. It may be summed up – not his word, my word – as primitive. Whatever you might think about Duntroon as a sheep station, the notion of the seat of Government Territory being primitive.

KIEFEL CJ: I was more interested in what your argument was. You say Bernasconi does not deal with a Territory of a kind of the ACT, which is carved out or taken from and surrendered by a State, but what is the point of distinction?

MR WALKER: It is it being contained within the Commonwealth.

KIEFEL CJ: It is part of the body politic geographic ‑ ‑ ‑

MR WALKER: Yes.

KIEFEL CJ: This is your argument about ‑ ‑ ‑

MR WALKER: That is the point. That is the distinction.

GORDON J: So this is really what I said to you, outline of 9(a) in your oral argument.

MR WALKER: Yes.

GAGELER J: You see Bernasconi as a hurdle to get over, but where you want to reach is to persuade us of paragraphs 9 and 10, is it not, ultimately?

MR WALKER: Yes, that is right.

GORDON J: You see, it is parts of that 9 and 10 which are – and it may be that Bernasconi is not part of it, or is part of it, I do not quite know.

MR WALKER: That is right, but ‑ ‑ ‑

GORDON J: I mean, one of the limbs is they are laws of a constituent part of the Commonwealth body politic, but so are not State laws in that sense?

MR WALKER: It depends on what one means.

GORDON J: Quite.

MR WALKER: Yes, is the answer.

GORDON J: So 9(b)(ii) is ‑ ‑ ‑

MR WALKER: But British New Guinea Papua was not, is my point.

GORDON J: Well, when we are asking about the point of distinction that the Chief Justice asked, that cannot be one of the indicia of the distinction, can it?

MR WALKER: Well, yes, it can, in our submission. Members of the Federation and non‑State parts of the Commonwealth, such as the ACT, do stand in a plainly distinguished position from British New Guinea Papua.

GORDON J: But your phrase is laws of a constituent part of the Commonwealth body politic.

MR WALKER: Yes.

GORDON J: But it must include State laws in that general sense, does it?

MR WALKER: Yes, but State laws are not going to caught by section 80, obviously.

EDELMAN J: But that may be a difficulty for you because if your submission, as I understand it, is that the meaning of any law of the Commonwealth in section 80 is any law whose ultimate foundation is a Commonwealth ‑ ‑ ‑

MR WALKER: Enactment.

EDELMAN J: Derives from the constitutional basis ‑ ‑ ‑

MR WALKER: No, no, no, I certainly do not go there. That is why I keep harping on section 122. It has got to be an enactment of the Commonwealth. I am not asking to reopen Colina.

GORDON J: Well, that means that it is really just one – enacted indirectly under the ultimate authority of the Commonwealth Parliament is really the one indicia, or one criteria, or one point of distinction.

MR WALKER: Yes, it may be that what follows is a decorative variation on one. Yes, your Honour.

GORDON J: I repeat that, a decorative variation.

MR WALKER: Yes. But your Honour is right, the nub of the matter is in the first part was your answer.

GORDON J: Thank you.

MR WALKER: It does not – just to make it clear, in answer to Justice Edelman’s inquiry – I am sorry if I have let it appear that the fact that everything emanates from the Constitution is any part of our argument, no, no, no is the answer to that.

Now, against that background – and if there is a hurdle I have to clear in Bernasconi, it is because, plainly enough, Bernasconi contains statements which, as we would have it, read out of context would appear to say section 122 is a power that may be exercised by the Commonwealth Parliament free of any consequences under section 80. We know that it is not only section 80 which, in terms of what might be called guarantees, had been formerly the subject of a view that section 122 represented some kind of Alsatia from such guarantees being required. So 51(xxxi) reversed as a conception in Wurridjal; powerful dicta, to which we have drawn attention in our written submissions concerning section 116. They are just two examples.

So, yes, to adapt the language of Justice Gordon to me, Bernasconi was decided in different times. The difference of the times includes the character of the Territory and the laws for the Territory that had become a British possession which was accepted by the Commonwealth. Sir Samuel sets out, relevantly, the history that I do not need to recite on pages 632 and 633, and having noted a relevant provision concerning a trial of capital offences of persons of European descent being before a jury of four but otherwise no juries, then says of the laws which had been, in a way, adopted – that is, given fresh force by Commonwealth enactment – at the foot of page 633, with respect to a Code that Sir Samuel had something to do with, the Queensland Code, he said that:

The Papua Act –

That is, section 122 enactment:

provided . . . perhaps ex abundanti cautelâ that subject to the Act the laws in force –

that means previously to the Papua Act:

should continue in force until other provisions should be made.

A familiar device. His Honour says of that, it:

operated only as a declaration of the law.

That is, if I may say so, characteristically plain in its language, but uncharacteristically, perhaps, a bit obscure as to its meaning. “Operated only as a declaration of the law” surely does not mean it was not an enactment that gave force to the position that it maintained. It may have done so as a matter of supererogation, but it unquestionably meant that the force of law was now to be identified in the Papua Act.

In any event, halfway down 634, his Honour notes an interesting question which is not determined as we read the case, namely, whether a law passed by the legislature of a Territory under the authority of a law passed by the Parliament of the Commonwealth – that, of course, describes aspects of our argument – can properly be regarded as a law of the Commonwealth in any sense. I draw to attention because it would appear from that passage that Sir Samuel did not regard that was being determined by this case. In any event, he goes on:

But there is a larger and more important question . . . whether sec. 80 has any application to the local laws of a territory, whether enacted by the Commonwealth Parliament or by a subordinate legislature set up by it.

So, that question is stated in terms is stated in terms which abolishes any of the niceties that I have been struggling with concerning whether the criminal laws in question derive their authority from an Act of the Assembly, or from a statute of the Commonwealth Parliament.

GAGELER J: Mr Walker, given that where you want to go, ultimately, is the point that you say Sir Samuel did not decide here, why do we need to concern ourselves with this larger question?

MR WALKER: If that be the position, then I do not.

GAGELER J: I think you said that is where you want to get.

MR WALKER: So, if what your Honour put to me is so, that is a reason why the Court would not be deterred one bit by Bernasconi, considering on the merits our argument, because, we say, Bernasconi does not touch it. But that is not a perception that is universally shared. I will try not to labour a point, your Honour, but we do need to – I can complete what I want to say about Bernasconi really quite quickly. There are, I think, only three other passages.

Page 635, having given some reminiscence concerning section 80 and its inspirational, supposedly universal colonial practice, his Honour says at the middle of the page:

Chapter III. is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States –

Pausing there, we respectfully submit that in the decades that have followed, that is no longer either a self‑explanatory or entirely correct statement of the effect of Chapter III. In any event, the question‑begging nature of the expression the functions of government as to which the Commonwealth stands in the place of the States, is another reason not to regard that as doctrinally useful. The rest of the sentence is, of course, the obstacle – if there be an obstacle, as a matter of stare decisis for us – it has no application to Territories.

GORDON J: But we know the subsequent authorities of this Court have sought to address that last bit in part.

MR WALKER: Yes, and what I am suggesting is the Court has the opportunity to say that whatever may be said about that at any previous time, that is simply insupportable as a proposition in or out of context. It is, in our submission, also a non sequitur with respect to the sentence as a whole. When you create a Territory – as the ACT was created out of the geographical area of New South Wales – it is a little difficult to understand in political science terms why the government of that Territory is not an example of the Commonwealth having functions of government standing in the place of the States; that is, it has taken over that which was formerly part of New South Wales. None of that was explored in this case because it had nothing to do with what might be called mainland Territories coming out of a State. The conclusion is repeated, without reasoning added, at the foot of 635, by Sir Samuel:

the power conferred by sec. 122 is not restricted by the provisions of Chapter III . . . whether the power is exercised directly or through a subordinate legislature.

There is simply no explanation as to how one understands section 80 in the case of a Territory without any degree of local government; that is, completely and directly governed by the Commonwealth. There is no explanation as to why, constitutionally, that would not be regarded as plainly within the purview, on any view of it, of section 80. Sir Isaac Isaacs had – as is well understood – a radically different approach at the commencement of the reasoning, but coming to the same conclusion by way of outcome of the case.

KIEFEL CJ: But his Honour stood on his own. The other members of the Court agreed with Sir Samuel Griffith.

MR WALKER: You anticipate me. I was about to say, little can be made of that disagreement (a) as a matter of stare decisis, and that is all I am concerned with, and (b) because of the plurality of the reasons supplied by concurrence with Sir Samuel. But I do draw to attention the different time as well as different place element of Bernasconi that you see from the considerations of Sir Isaacs at the foot of page 637, over the top of page 638, where plainly thought is being given to formerly German or Polynesian places rather than where Canberra now sits. The notion that the seat of Government produces a “territory” which:

is not yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers.

Being:

in a state of dependency or tutelage –

is, in our submission, bizarre, and only goes to show that this is not a case that can be read as having anything to do with a case such as the present. The secondary contention, so‑called, is obviously the more ambitious. It takes as its premise your Honours having concluded that the offence provisions in this case are not provisions given force by the section 122 enactment of section 34 of the Self‑Government Act, but rather in some fashion by an Act of the Assembly – not deemed, but actual.

In that case, as a fallback, we argue, as you see in our proposition 9 that first of all we escape the strictures of Re Colina 200 CLR 386 – that is, we do identify what might be called the common law garden statute enacted by the Commonwealth Parliament – that is, the Self‑Government Act. That is the first point. That involves – and we call in aid, of course – the fact that nothing down under section 22 of the Self‑Government Act can be said not to require the validity of an anterior exercise of section 122 power in order itself to have effect.

There is no de facto doctrine. Either section 22 is valid because it resulted from a valid enactment under section 122 or not. There is no dispute in this case that it is valid. It is showing, of course, that section 122 – that is, of the Constitution – and legislation . . . . . within it is necessary in order for the created legislative capacity of the Territory under section 22 of the Self‑Government Act to be a source of legal authority for Acts of the Assembly. That is the way in which we put the matter concerning indirect Commonwealth provenance under what we call the ultimate authority of the Commonwealth Parliament.

In that regard, may we draw to attention – and we do not suggest that it forms part of the ratio – but in Lamshed v Lake [1958] HCA 14; 99 CLR 132, at 41 of the authorities – I will not delay your Honours. That very approach was seen – admittedly, without further exploration or examination of the matter – by Mr Justice Kitto to be an appropriate way of identifying a law of the Commonwealth.

That brings me finally to the question whether the excise case of Capital Duplicators v Australian Capital Territory [1992] HCA 51; 177 CLR 248, poses any difficulty, either directly as an obstacle, or by implication, or extension of reasoning ‑ ‑ ‑

EDELMAN J: Just before you get to Capital Duplicators, can I just ask you about Justice Kittos’s approach in Lamshed v Lake. Do you accept that Territory courts are not federal courts?

MR WALKER: Put in those terms, yes.

EDELMAN J: And that they are not, in that sense, courts of the Commonwealth?

MR WALKER: I have to keep saying, in that sense.

EDELMAN J: Why then would a law that is made under a Self‑Government Act be a law of the Commonwealth if a court that is created in that independent way is not a court of the Commonwealth?

MR WALKER: When we are talking about a court we are talking about an organ of government. When we are talking about a law, we are talking about a text given force of law. They are not comparable subjects. An ACT court is an organ of government of the ACT, but a law which depends for its text upon Commonwealth enactment may bind and apply within the Territory without it thereby being to the exclusion of its Commonwealth character being a Territory law. In other words, section 122 entails an ineradicable Commonwealth character for laws for the government of a Territory. They are, in a loose sense, Territory laws, but only in a loose sense. Territory laws will include those that result directly from 122 and those that result indirectly from 122. They are all thus, we say, matters of Commonwealth enactment.

The passage in Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 is at page 154, and your Honours are familiar with the passage. As I say, I cannot say that it is part of the ratio though his Honour is part of the majority. His Honour was grappling in significantly conceptual terms with the notion of treating:

the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories.

And there is an echo here of what we would submit is a not very useful distinction between federal and non‑federal:

If that necessity is recognised –

and we urge that this Court should, and that it is not a big step at all. His Honour says of section 122 – and this is all in the context of his Honour pooh‑poohing the idea that idea that it was a last‑minute, ill‑thought‑out addition that it:

cannot fairly be read as meaning that the national Parliament, when it turns to deal with a territory which has come under the nation’s authority –

now, that could be either external or section 125:

shall shed its major character and take on the lesser role of a local legislature for the territory, concerned only to regulate the local law. Surely it means that a territory which has been accepted by the Australian Federation may be fitted in the Australian scene, so far as laws are concerned, by the legislative activity of the Australian Parliament: that the entire legal situation of the territory, both internally and in relation to all parts of the Commonwealth –

because this was a case concerned to deal with the shibboleth that Territory laws could have no effect outside Territories:

may be determined by or by the authority of Parliament.

That is a phrasing we wish to draw to attention:

by or by the authority of Parliament.

Now, that is not just so‑called delegated legislation – orders of governor and council, for example. That is also, with respect, the authority such as one sees in section 22 of the Self‑Government Act in this case.

GORDON J: That was dealing with a Commonwealth Act. It was dealing with the Northern Territory (Administration) Act, which itself had been passed by the Commonwealth Parliament.

MR WALKER: Unquestionably. Your Honour sees the analogy that we draw, and the limit of the analogy given by the facts of the case. Does the enactment under section 122 of section 22 of the Self‑Government Act alter things for the reasons Sir Frank points out? We submit, no, it does not. As I say ‑ ‑ ‑

GAGELER J: Mr Walker, where does this characterisation go when you look at section 109 of the Constitution. Is a Territory law a Commonwealth law for the purpose of 109? And if it is not, how do you square that with the same language of section 80?

MR WALKER: The analysis – I was hoping to avoid this, but I accept that it is an appropriate test. The analysis under section 109 needs to focus on the Commonwealth law under section 122. And if it says something about the laws of a Territory legislature – the law-making of a Territory legislature, such as 22 does, then subject to the familiar question of so-called extra‑Territoriality, which is no longer contentious, the question will be whether there is an inconsistency between section 22, which gives a law‑making power – not a text-writing power, but a law-making power – whether that will be inconsistent with State legislation.

GAGELER J: That is easy. Where your argument goes for the purpose of section 80, as I understand, is that a law made under section 22, an enactment by the Territory legislature under section 22, is law of the Commonwealth for the purpose of section 80.

MR WALKER: Yes, that is – that my final ‑ ‑ ‑

GAGELER J: So, I am asking: is it also a law of the Commonwealth for the purpose section 109?

MR WALKER: For the purpose of 109. I understand your Honour is asking that and I am saying yes.

GAGELER J: That is where it leads.

MR WALKER: I can not responsibly point to a logical reason why it would not be.

GAGELER J: There would be huge implications, of course.

MR WALKER: I would like to thing that argument even before you ask me about section 109 has huge implications, your Honour; that is, the role of section 80 and section 122 is no mere triviality. It is no use me pretending that – as my earlier first comment about 109 made clear, there is no use me pretending there are not important matters involved here. There are, obviously enough, three kinds of legislative authority available in this country. Now, I am leaving aside subtypes, but you have Commonwealth, State, and, if they are given it by Commonwealth law‑making, Territory.

Section 109 might be regarded as charmingly naive as to that third category, but, in our submission, that would be unfair to the makers of the Constitution that obviously, there was an urgent political requirement to settle differences between the new polity and the constituent federating colonies, but 109 is in terms which looked to all future production legislatively by the Commonwealth, which, in turn, included unquestionably legislative productions to do explicitly with the government of Territories.

Now, unless one were to suppose that these persons making a Constitution for a new polity left out of the count that the Government of Territories might include giving them legislative capacity, which is unthinkable, then it follows that in this Constitution, which includes 109 and 122, that there was going to be the possibility of clashes between what I will call State protections and the lawmaking of Territories insofar as they were authorised by Commonwealth enactment.

It would be never a question of saying 109 mandates the supremacy of Territory law over State law; that is absurd. It would only be a matter of saying if the Commonwealth says that a Territory can do this by way of making laws then no State law can subvert that. That, in our submission, is obviously large in its implications but it is not a dislocation or disturbance of the balance of legislative authority, effectiveness, that 109 struck between the Commonwealth and the former colonies in other States.

GORDON J: There are other provisions in the Constitution that use the same language which may also need to be taken into account. I mean, I have not gone through all of them but there are a number that deal with this sort of language which, if the law of the Commonwealth is extended to include Territory law in the way you have put it, it might give rise to some difficulties as well.

MR WALKER: Well, I hope we have anticipated them. Operating in the opposite direction, obviously, is section 118. It would be surprising, and we would say disturbing, if what might be called – slightly facetiously – the Federal compact if Territories that can be given self‑government and judicial organs under section 122 were not going to be regarded as, if they are the ACT, being in the Commonwealth, so that the phrase “throughout the Commonwealth” imposes full faith and credit.

So, in our submission, the wrapping up of all Territories comprising parts of the Commonwealth together with all States comprising parts of the Commonwealth in a compact that will give, in the case of inconsistency under 109, supremacy to the law of the Commonwealth, it is plain that anything that sets up the possibility of a Territory inconsistency with a State is to be analysed as being a case where the command of the Commonwealth that the Territory have that lawmaking power extending as far as the law in question does shall be paramount and that may be a large effect but it is not one that is precluded by authorities, in our submission, and certainly is in entire accord with the nature of the new polity where the makers obviously thought that in place of ad hoc political strife there should be the mechanism of 109 to deal with the hierarchy of laws.

In our submission, if it turns out then that what once might have been regarded as the poor relations of the Commonwealth, namely, the Territories, have by dent of their direct Government, potential by and actual by the Commonwealth that they enjoy that degree of superiority to the lawmaking of States, then so be it.

The alternative – it is not obvious why exercises of power under section 122 should not attract the protection of 109 from State laws, which would subvert or detract from the operation of section 122 laws. That is, in our submission, a self-defeating approach to the creation of the new polity. Your Honours, all we want to do is say about Capital Duplicators was that in truth, if anything, it supports what we are arguing. The point in Capital Duplicators was not about the phrase “any law of the Commonwealth” – section 80 – but, obviously, the exclusivity of the power regulated by section 90 in section 51(2) for the imposition of excises.

Now, the exclusivity of the power of the Commonwealth Parliament, section 90, is plainly something which in Capital Duplicators confronted the Court with the question as to whether the ACT Assembly, owing its existence, functions, and powers entirely to the Commonwealth Parliament’s expression of legislative will under section 122, had somehow thereby become a legislature whose imposition of an excise did not fall foul of section 90’s exclusivity, because it was, in some way, an exercise by the Commonwealth Parliament; and the argument was rejected, as your Honours know.

That, in our submission, it says nothing at all; contrary to our proposition concerning, within the meaning of section 80, laws either given force by a section 122 enactment or indirectly deriving authority because of section 122 enactment, being laws of the Commonwealth for the purposes of section 80. All that Capital Duplicators relevantly does is to point out that the new Assembly is certainly not the Parliament of the Commonwealth within the meaning of section 90; it is certainly not, whether by way of delegation, agency, or any other way, so as to be able to impose excises alongside the Commonwealth Parliament.

May it please the Court.

KIEFEL CJ: Yes, thank you, Mr Walker. The Court will adjourn until 2.15 pm.

AT 12.41 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

KIEFEL CJ: Yes, Mr Solicitor‑General for the Australian Capital Territory.

MR GARRISSON: Thank you, your Honour. If the Court pleases, I will be making some introductory comments and then Ms Younan will address ground 1, and then I will address ground 2, dealing with section 80. The second respondent relies on his written submissions that were filed on 2 September 2022. We intend to highlight some matters from those submissions in response, and also in response to matters raised by the appellant in their reply, and the oral presentation today.

The factual and procedural background relevant to the determination of the appeal was set out in very helpful detail in the judgment of the Court of Appeal at paragraphs 209, 214 to 222 – which appears at core appeal book pages 148 to 205 – and I will not go further to that. But some brief background may be of assistance. The legislation that is the subject of this case arose in what were obviously quite extraordinary circumstances arising at the first stage of the COVID‑19 pandemic.

Your Honours will recall that so much of society underwent a rapid transformation and, particularly in those early months, there were significant changes to the operation of every court in the country. In the ACT, a Public Health (Emergency) Declaration was made on 16 March and on 7 April 2020, the Supreme Court determined that there were going to be no jury trial until further notice – that is Practice Direction 1 of 2020.

On 8 April, the next day, section 68BA of the Supreme Court Act commenced operation. It authorised the Supreme Court to order a trial by jury alone criminal proceedings even if the accused person did not consent. My learned friend has taken your Honour to those provisions and Ms Younan will go through them in more detail.

As noted at paragraph 8 of our written submissions, the Explanatory Statement to the Emergency Response Act made it clear that the purpose of the legislation was broader than that which has been described by the appellant. Section 65BA facilitated the continuation of the effective administration of justice in the context of the early phase of the pandemic. In particular, there was a concern that persons charged with criminal offences would be able to be tried without unreasonable delay.

The Australian Capital Territory has embodied that right in its Human Rights Act – section 22(2)(c). The explanatory statement went on to describe the adverse effects of delay, including the loss of evidence, denial of fair trial and the impact on victims and witnesses. A further purpose was not placing members of a jury at unnecessary risk. The explanatory statement goes on to say:

Due to section 80 of the Constitution, the provisions relating to judge alone trials only apply to Territory offences.

Finally, it pointed out that the discretion was only going to be exercised once parties had an opportunity to consider the issue and make submissions to the Court.

The appellant makes two challenges to section 68BA which, by way of summary – the first, that the repealed notice provision in subsection (4) contravened the limitation identified in Kable v DPP. There is now no
challenge by the appellant to 68BA(3) or the Court’s ability to make the order for a judge alone trial itself. The second respondent says this ground should fail simply because 68BA(4) is, in truth, no more than a facilitative provision which ensures that procedural fairness is afforded to a party prior to any order being made under subsection (3). It does no more than a court could and would properly do, in any case, to ensure it has heard from the parties before making an order. The practical operation of the notice provision demonstrates that it, plainly, did not undermine the institutional integrity or independence or impartiality of the Court.

Secondly, the appellant argues that the serious sexual offences with which he was charged and convicted were laws of the Commonwealth, such that his trial was required to be heard by a jury pursuant to section 80 of the Constitution. If section 80 applied to his trial, then the unchallenged case law in section 80 has the result that he could not have elected for trial by judge alone under the provisions of the Supreme Court Act as they stand. The appellant’s challenge was inconsistent with the history of self‑government of the ACT and the unchallenged authority of this Court concerning the nature of the Territory’s legislative power. Your Honours will hear from me in relation to Capital Duplicators and I will be discussing the longstanding authority of Bernasconi.

Success by the appellant on the section 80 ground will have serious and wide‑reaching consequences. It would overturn decades of practice in both the ACT and the Northern Territory. Indeed, it has the potential to fundamentally change the conception and role of the self-governing Territories in this Country. With that, by way of introduction, I will now ask Ms Younan to address ground 1 in more detail.

KIEFEL CJ: Thank you, Mr Solicitor. Yes, Ms Younan.

MS YOUNAN: Your Honours, I will commence by reminding the Court of the scope of the appellant’s Kable challenge. The appellant accepts that the exercise of discretion under section 68(3) involved a regular exercise of judicial power that was to be discharged judicially. In other words, the appellant does not challenge the criteria for the making of an order under subsection (3); rather, the appellant challenges subsection (4) of section 68BA, but in narrow compass.

First, the appellant’s argument does not turn on any unfairness to an accused person who did not receive a notice. Secondly, the argument does not turn on the fairness of the process once a notice was given. Thirdly, the appellant does not take issue with the exercise of the so-called discretion in section 68BA – although we cavil with that description and say it is not in fact a discretion. And finally, the appellant does not deny that the considerations in subsection (3) might have informed the exercise of discretion under subsection (4), although it contends that subsection (4) was not controlled by the criteria in subsection 3.

In essence, the appellant claims that the constitutional flaw lies in the power to select arbitrarily from a relevantly identical class of accused persons to whom the criteria in subsection (3) were prima facie applicable. We say that the power to select was not arbitrary; that it was guided by the criteria in subsection (3), to which the appellant makes no challenge. In fact, the appellant accepts that, if subsection (4) is governed by subsection (3), then the former subsection is not invalid; that is the core constructional issue.

With that in mind, I turn to the construction of section 68BA of the Supreme Court Act. Now, subsections (1) and (2) outline the conditions of application of the section. To the extent that there is a discretion to be exercised by the court, it lies in subsection (3), which provides for the court’s power to order that a proceeding will be tried by judge alone, if satisfied that it:

(a) will ensure the orderly and expeditious discharge of the business of the court; and

(b) is otherwise in the interests of justice.

Now, the conditions of the exercise of the power are broad, but not insusceptible to judicial application. That is not in issue. On its terms there are immediately two notable aspects of subsection (4). The first is that it is tethered to subsection 3. It is tethered in time, that is, by operating:

Before making an order under subsection (3) –

and it is tethered in function, that is, in terms of providing “notice of the proposed order”. The second notable aspect is that it does not afford the court a discretion. The court must give the parties notice of the proposed order. Section 68BA(4)(b) prescribes the content of the notice. It is clear, we say, that the purpose or function of the notice was to give the parties an opportunity to make submissions about the proposed order, and thereby to facilitate the Supreme Court’s consideration of whether or not to make an order under subsection (3).

Subsection (4) should be understood as an articulation of the minimum content of procedural fairness that is inherent in the exercise of judicial power. The criterion of its application is not elusive; it is found in the first clause of subsection (4). It is the proposing of an order under subsection (3). It is difficult to see what is objectionable about the process articulated in subsection (4). One might anticipate a challenge in its absence, that is, where the absence of notice of a proposed order is mandated for some or all accused. That is not this case.

While the notice under subsection (4) may be seen as a condition precedent of the exercise of the power under subsection (3), it is wrong to conceptualise subsection (4) as a gatekeeping function given to the Supreme Court. Subsection (4) is predicated on the consideration of proposing an order under subsection (3). Logically and chronologically that consideration under subsection (3) comes first and informs the selection of who receives a notice under subsection (4).

GAGELER J: So, there need not be something that could be described as a preliminary assessment or a preliminary determination. It is sufficient that there is a process underway of consideration.

MS YOUNAN: Precisely, your Honour. However it is described, as preliminary or otherwise, the process is prescribed in subsection (3) and is the predicate to the giving of the notice under subsection (4). As I understand it, the core of the appellant’s complaint is that there is a class identified, perhaps by way of subsection (1), a broader class and then a narrower class or, perhaps, a sub-class, identified in subsection (3) and that it effects some sort of inequality by way of mandating a duty to provide a notice to the sub-class rather than the broader class.

We say that there is no duty to consider all cases that meet subsection (1). Subsection (1) contains the conditions of application of the section so there is no duty to consider all the cases that meet that subsection. The mischief ‑ ‑ ‑

STEWARD J: Why would that not be so? If a criminal proceeding is of the kind that meets (1), that is, it is one where the trial is to be conducted during the period, why would it not be appropriate for notices to go to all such trials and then undertake the subsection (3) discretion?

MS YOUNAN: Your Honour, because we say that the mischief is identified in subsection (3) and that it would be administratively inconvenient, to say the least, to provide notices to every case that is listed, irrespective of the consideration under subsection (3). That consideration goes to the statutory purpose of whether or not the case at hand in fact represents a risk to the delay or the administration of justice.

STEWARD J: Do we know as a matter of fact whether all cases that were listed got the notice, or only some?

MS YOUNAN: We do not know that as a matter of fact.

STEWARD J: All right, thank you.

MS YOUNAN: Properly understood, we say that there is a single operative power in subsection (3) which is conditioned on the state of satisfaction described in subsection (3) and non-compliance with the natural justice duty outlined in subsection (4). Now, in terms of the institutional aspect of the appellant’s argument, the crux appears to be the failure to afford equal justice on the premise that all accused who are facing the prospect of losing a trial, a jury trial, were subject to the same risk from COVID-19 and were all in a relevantly identical class.

We say that argument is (a), unsubstantiated and (b), with respect, misconceived. First, section 68BA is of general application. It established a facilitative procedure to be applied to all accused persons who met the preconditions for application of section 68BA outlined in subsections (1) and (2) and further were the subject of consideration in accordance with the criteria under subsection (3).

Second, it is not correct to assume that each jury trial presented the same mischief to be addressed by the enactment of section 68BA. And this goes to the question which I was asked by your Honour Justice Steward: even where that same mischief is risk of delay to the administration of justice it does not follow, as the appellant argues, that individual cases did not inherently render themselves more or less likely candidates for selection under subsection BA(4).

Now, therein lies the misconception. The selection arises under subsection (3), which is antecedent to subsection (4) and therein lies the presumption of a relevantly identical class. As the court below observed, the appellant selects ‑ ‑ ‑

EDELMAN J: Although it may – whether the approach is relevantly identical may depend on what you mean by your submission that there is no duty to consider all the cases that fall within subsection (1). Does that mean that there is no duty even to consider whether to issue a notice to those cases, or no duty to consider those cases once a notice has been issued?

MS YOUNAN: The former, your Honour. There is no duty to consider all of those cases before giving a notice. That is our contention.

EDELMAN J: So, the relevant officer in the Supreme Court could say, well, I am not going to consider any cases that come in on Mondays and Tuesdays, but I will consider those that come in Wednesdays, Thursdays, and Fridays, by reference to the subsection (3) criteria? That would seem not to be consistent with the orderly and expeditious discharge of the business of the court, or at least the interests of justice.

MS YOUNAN: Your Honour, we are not suggesting that the practical operation of subsection (4) is as your Honour has described. We say that while subsections (1) and (2) identify a broader class of persons who may be susceptible to the proposing of an order under subsection (3), it is the consideration under subsection (3) which meets the statutory purpose that narrows the class. That is the relevant class to whom a notice may be given.

EDELMAN J: But by definition, then, you have considered whether to give a notice to every application.

MS YOUNAN: If that so follows, yes, your Honour. As the court below observed the appellant selects as a subject matter for consideration of equal treatment only one of a myriad of factors that might be relevant. However, even delay admits of degrees. The appellant’s argument, we say, is predicated upon the illusion of a relevantly identical class.

Furthermore, and to that point, where a judicial discretion is to be exercised as it is under subsection (3), it is well established that there may be a range of appropriate outcomes. The case law concerning error of the kind identified in House v The King is premised on the reality that different judges may weigh considerations in different ways without acting either unreasonably or erroneously. The result is that a discretionary case management power leaves open the possibility that two seemingly‑identical cases will, as a result of different judicial decisions, have different outcomes. At paragraph 3 of the appellant’s reply the appellant identifies three features of inscrutability of the process under subsection (4). They are:

The fact that an order was made on the Court’s own motion, and the absence of (a) a duty to consider whether to give a notice –

and, finally, the absence of:

a requirement to give reasons.

I will address these three so‑called features of inscrutability in turn. In relation to the court acting on its own motion there is nothing extraordinary or objectionable in the court acting on its own motion per se, even in relation to serious matters of criminal procedure, and I do not understand the appellant to be making that argument. To clarify, the court acted of its own motion in proposing the order, not in making the order, and the distinction between the two lies in the very process that is afforded by subsection (4).

Secondly, the absence of a duty to consider whether to give a notice. We say this is a misconception. There is no duty to consider whether to give a notice because the duty is to give a notice where the court proposes to make an order under subsection (3). The court is under no duty to make an order under subsection (3), nor to consider whether or not to make an order, and the appellant makes no complaint about that. If the court proposes to make an order under subsection (3) then no discretion or separate consideration arises under subsection (4), a notice must be given.

GLEESON J: There is no duty to consider whether not to exercise a power adversely to an accused.

MS YOUNAN: Yes, your Honour, we would embrace that observation, yes. Finally, the absence of a duty to give reasons. The giving of a written notice under subsection (4) is not a decision that would be amenable to any form of review, nor a decision for which the court would be required to give reasons. The notice under subsection (4) creates no rights and no liabilities.

Plainly, the court will only give notice of a proposed order under subsection (3) if the court considers that the conditions for the exercise of the power in subsection (3) may be met. Subsection (4)(b) affords the parties an opportunity to address those conditions before an order under subsection (3) is made. It is unhelpful to conceive of a duty to give reasons for a notice. The reason is provided in the very subsection.

Your Honours, in conclusion, we say that it cannot maintained that the practical operation of subsection (4) was inscrutable or otherwise undermined the court’s independence and impartiality by requiring it to depart from processes which characterise the exercise of judicial power. We say that this ground of appeal has no merit.

Your Honours, if there are no further questions, the Solicitor‑General will address ground 2.

KIEFEL CJ: Thank you, Ms Younan. Yes, Mr Solicitor.

MR GARRISSON: Thank you, your Honours. The appellant advances two contentions as part of ground 2. Contrary to the appellant’s primary contention, the offences of which the appellant was convicted were offences created by laws of the Australian Capital Territory and of the ACT Legislative Assembly rather than the Commonwealth Parliament.

Contrary to the appellant’s secondary contention, section 80 of the Constitution does not apply to offences created by laws made by the legislature of a self‑governing Territory because they do not meet the definition of “any law of the Commonwealth”. This is so even though the legislature is a creature of a law made by the Commonwealth under section 122 of the Constitution.

In addressing the construction of section 80, which is where one must start, I will look at its terms, speak to the establishment of the ACT and the transition to self‑government that has been touched on this morning, and to the unchallenged authority concerning the nature of the Territory’s legislative power. I then propose to deal with Bernasconi before moving to respond directly to each of the appellant’s primary and secondary contentions. I intend to conclude by addressing the practical consequences of the appellant’s contentions for the operation of the Territory.

It is trite to say that section 80 is to be read according to its ordinary meaning and its terms in the light of its place in the structure of the Constitution; it is hardly necessary to refer to authority to support that proposition. There is nothing in convention debates that supports the appellant’s reading of a law of Commonwealth, and we endorse the submissions of the Northern Territory at paragraph 39 of their submissions in relation to that. The first part of section 80 provides that:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury –

Section 80 also contains a second imperative concerning the venue of the trial, and the closing words provide that:

if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Section 70A of the Judiciary Act has gone on to say that:

The trial on indictment of an offence . . . not committed within any State . . . may be held in any State or Territory.

The appellant’s challenge in ground 2 relates to the meaning of “any law of the Commonwealth” in the first part of section 80, and there is settled authority on the elements of that question. It is certainly being clear that section 80 does not apply to trials in the State courts, unless those courts are prosecuting a Commonwealth offence. That is true, even if the State court is exercising federal jurisdiction.

The object of section 80, as was described in Alqudsi, is to prescribe how the judicial power of the Commonwealth is engaged in the trial on indictment of Commonwealth offences. So, for example, if a State court is exercising Commonwealth judicial power, or indeed, a Territory court is trying an indictable offence under a Commonwealth law, they all bound by section 80, and it must be a trial by jury. The reference to laws of the Commonwealth appears in several sections of the Constitution; covering clause 5 refers to laws of the Commonwealth being in force on all British ships; clause 41 deals with the right of electors of States; section 61, the executive power section, provides the Executive has function of executing and maintaining the laws of the Commonwealth – and, of course, section 109.

GLEESON J: And section 120.

MR GARRISSON: And 120 dealing with “custody of offenders against laws of the Commonwealth”, your Honour. The Territory contends that the ordinary meaning of the term “law of the Commonwealth” is a law made by or under delegation from the Commonwealth Parliament. There is no cause for what appears to be a special meaning that the appellant wishes to apply to the term when used in section 80 as distinct; it would appear from other sections of the Constitution – I will come back to that.

It is useful to look at the establishment of the Australian Capital Territory. As a preliminary, there has been observations made that the ACT was established pursuant to section 125 of the Constitution. With respect, that is not the position that the second respondent takes. The ACT was established pursuant to section 111. A proposition that 125 formed the basis for the establishment of the Territory, which is made in the appellant’s reply at paragraph 10, misdescribes it, and perhaps it does not support a proposition that the ACT is relevantly different in character to any other Territory established under section 111.

The geographic area which is now the ACT was surrendered by the State of New South Wales and accepted as a Territory by the Commonwealth pursuant to section 111. That process satisfied the requirements of section 125 for it to be an appropriate repository for the seat of Government which, as your Honours will be aware, has actually no precise geographic description.

Doubtless if it includes this place, but its boundaries are amorphous. The terms of the Seat of Government Surrender Act, by using the language of “surrender” and “acceptance”, clearly reflect the reliance upon the mechanism in section 111. Of course, the terms of section 125 use the past tense “shall have been granted to” contemplate an antecedent surrender pursuant to section 111. Respectfully, any uncertainty about the proper basis for the establishment of the ACT, we submit, has been resolved by this Court.

There were observations by her Honour Justice Gaudron in Capital Duplicators at 285, which is in the book of authorities at page 1556 beside tab 33, where her Honour observed:

The Australian Capital Territory exists as such by virtue of a grant by the State of New South Wales pursuant to s. 125 . . . the Northern Territory owes its existence as a Territory to the surrender of territory by the State of South Australia.

Using section 111. A similar observation was picked up by his Honour Justice Brennan in Svikart v Stewart in which his Honour referred to Justice Gaudron’s observations. That is at page 565 of Svikart which is tab 49, page 2650. That – dare I say – uncertainty has, in my respectful view, been resolved by the judgment of the majority in Svikart which observed that any Territory surrendered by a State and accepted by the Commonwealth territorial sovereignty or political dominion would exist under section 111 and 122. It then goes on to say that 52(i) provides for them:

to make laws for . . .

(i) the seat of government –

and under 125:

The seat of Government –

is required to be:

within territory which shall have been granted –

The majority then said:

There is now a Territory . . . within which the seat of government has been located, although its limits have not been precisely determined by the Parliament.

That is at page 561, your Honours, of the judgement in Svikart.

GAGELER J: So, was it granted or surrendered?

MR GARRISSON: It was surrendered. There were two Acts: there was the Surrender Act by New South Wales, and the Acceptance Act by the Commonwealth, fit squarely within the processes of the section 111, and indeed virtually the same process as was adopted in relation to the Northern Territory. So we say it is not distinguishable from that point of view.

GORDON J: Some commentators have suggested that 125 was just to make sure that the Australian Capital Territory never became a State.

MR GARRISSON: Well, your Honour ‑ ‑ ‑

GORDON J: It had a particular purpose.

MR GARRISSON: Your Honour, the idea obviously to acquire the Australian Capital Territory form New South Wales was so that the seat of Government could be put there. There has been some debate as to whether the Australian Capital Territory could ever become a State. I choose not to express a view in relation to that prospect, but it clearly is a logical consequence of the operation of section 125 because although one could theoretically try and excise a space that did not encompass whatever one determined what the seat of Government to be, in practical terms, it would be almost impossible, I suspect. I have had this discussion with former Solicitors‑General of the Northern Territory, to their respective amusement.

So, the Territory, whilst being seat of Government – and does not change the character of it as a Territory created under section 111 – and indeed being vested with the powers that are given to it by the Self‑Government Act – the legislative power of the Australian Capital Territory has evolved over time. At the commencement of the Territory on 1 January 1911, the Crimes Act (NSW) was picked up and adopted in the Australian Capital Territory by section 6 of the Seat of Government Acceptance Act, which is it at tab 20, page 1119. And it was in terms:

Subject to this Act, all laws in force in the Territory immediately before the proclaimed day shall, so far as applicable, continue in force until other provision is made.

Now, section 4 of the Seat of Government (Administration) Act, which unfortunately is not in the bundle of authorities, your Honours – we will provide the Court with a copy – provides, in section 4:

Where any law of the State of New South Wales continues in force in the Territory by virtue of section six of the Seat of Government Acceptance Act 1909, it shall, subject to any Ordinance made by the Governor-General, have effect in the Territory as if it were a law of the Territory:

Provided that, with respect to any such law (other than such law that is an enactment), the Governor-General may by Ordinance declare that it shall, while the Ordinance remains in force, but subject to the provisions of the Ordinance, have effect in the Territory, and continue to be administered by the authorities of the State, as if the Territory continued to form part of the State.

I do not know that last part of that provision was ever implemented. It was presumably intended as a transitional provision, but there is no doubt that between January 1911 and 10 May 1989, the geographic area of the Australian Capital Territory was subject to the exclusive jurisdiction of the Commonwealth and was administered by the Commonwealth. In 1989, upon self‑government, the ACT gained legislative power exercised by the Legislative Assembly:

to make laws for the peace, order and good government of the Territory.

Section 22(1) of the Self‑Government Act. The transition to self‑government was not completed for several years until the establishment of the independent ACT Government Service – the Public Service – on 1 July 1994, and that followed the transfer of responsibility for the courts on 1 July 1992. Immediately following self‑government, section 34(4) of the Self‑Government Act – and I will take your Honours to the version at tab 14, which is the “as made” version of the Self‑Government Act – provided that:

A law (other than a law of the Commonwealth) –

which were then enforced in the ACT and which were:

an Ordinance, an Act of the Parliament of New South Wales or an Imperial Act –

shall be taken to be Territory enactments; namely, laws of the ACT Legislative Assembly. The operation of that section – which rendered them to be Territory enactments – meant, we would submit, that the Commonwealth could not amend, repeal or otherwise address those laws, other than relying on its power under section 122 to override those laws by a specific law of the Parliament of the Commonwealth. Support for that proposition comes from the judgments of Justices Brennan, Deane and Toohey in Capital Duplicators, at page 283 of the judgment which appears at tab 33, page 1554, where their Honours observed – in the context of the duties law that was in issue in the case:

The Parliament has no power under the Self‑Government Act to disallow any duty imposed by the Legislative Assembly; the Parliament must, if it wishes to override the enactment, pass a new law to achieve that result. It cannot repeal or amend the enactment.

STEWARD J: Sorry, Mr Solicitor, what page in the Commonwealth Law Reports was that?

MR GARRISSON: That was at 283, your Honour, page 1554 of the joint book of authorities. Section 34(5) of the Self-Government Act provided for an exception to the position created by section 34(4) in respect of:

a law specified in Schedule 3.

Schedule 3 in the Self-Government Act, as enacted – the version at tab 14 _ included a reference to the Crimes Act 1900. As a result, the Crimes Act did not become a Territory law on self-government day. Rather, the Crimes Act became a Territory law on 1 July 1990. The Crimes Act was removed from Schedule 3 by operation of section 12 of the A.C.T. Self‑Government (Consequential Provisions) Act 1988, which appears at tab 16 of the joint book of authorities at pages 1080 to 1081.

The reason I take your Honours to that level of detail is that the timing is actually quite important. The appellant relies on comments of this Court in Eastman and it makes it necessary to note that a 30 April 1992 reprint of the Self-Government Act, which is in the materials, actually contains a misprint because it did not pick up the amendment that was made by the Consequential Provisions Act, so that the Crimes Act continued to appear in Schedule 3. This error might explain why observations were made by the Court in Eastman about the characterisation of the Crimes Act after the trial of Mr Eastman, and I will take your Honours to that in a little more detail shortly.

KIEFEL CJ: But the offence in relation to which Mr Eastman was charged was under the previous law, was it not?

MR GARRISSON: Indeed it was, your Honour.

KIEFEL CJ: Is not that the point?

MR GARRISSON: It was the ‑ ‑ ‑

KIEFEL CJ: It was not under what you would call the Territory law – the Crimes Act (ACT). It was clearly made under the New South Wales provision.

MR GARRISSON: There was perhaps a level of uncertainty about at what point the Crimes Act became a Territory law.

GORDON J: Is that right? I understood from the Consequential Provisions Act it was in effect from 1 July 1990. Have I got that ‑ ‑ ‑

MR GARRISSON: Yes, your Honour. Yes. Sorry. It was effective from 1 July 1990. The problem is that did not get picked up in the reprint of the Self ‑Government Act. So, for all intents and purposes, for an extra two or three years – several years – it still appeared in Schedule 3 of the Self‑Government Act, when in fact it was still a Territory law. This may well explain the enactment of the law that was the subject of some discussion, your Honours, in relation to the ‑ ‑ ‑

GORDON J: Crimes Legislation (Status and Citation) Act 1992.

MR GARRISSON: Indeed, which, of course, was in ‑ ‑ ‑

GORDON J: In 1992.

MR GARRISSON: Yes.

STEWARD J: Mr Solicitor, do we know why the Crimes Act was put in the Schedule and then in the very same year taken out but with effect from a date in 1990?

MR GARRISSON: That would be down to those who were responsible for the planning of self‑government, your Honour. There was quite a large task force of varied people in it, I believe. I was not around at the time. But there was a clear Schedule for when certain things would happen. So, for example, the courts remained the responsibility of the Commonwealth until 1992, and the public service was in fact serviced by the Commonwealth public service until 1994 when its own public service was established. And that was also reflected, for example, in relation to courts. That was an amendment to the Self‑Government Act, because up until 1992 the responsibility of the courts was something that was excluded from the responsibilities of the Government.

STEWARD J: Does that mean that for about a year and a half there were Commonwealth courts applying an ACT Crimes Act?

MR GARRISSON: Indeed, your Honour.

STEWARD J: Yes, all right.

GORDON J: Just so I am clear, Mr Garrisson. Your position is that the Crimes Act becomes an ACT Act when it is removed from Schedule 3 with effect from 1 July 1990, and moved, consistent with the Consequential Provisions Act. Is that the way it works?

MR GARRISSON: Yes, your Honour.

GORDON J: And then you have got the Status and Citation Act of 1992, which is confirmatory of that position. Is that it, is that the argument?

MR GARRISSON: Yes, your Honour.

GORDON J: And that is just a few months before the establishment of the ACT Supreme Court.

MR GARRISSON: That timing appears to be correct, your Honour. Regrettably, I am unable to identify a reason for the coincidence of that timing.

GORDON J: And the ACT Supreme Court, unlike the Northern Territory Supreme Court, has its jurisdiction entrenched by the relevant Commonwealth Act, namely the Self‑Government Act, by the amendment of 48A.

MR GARRISSON: Correct, your Honour. The ACT’s legislative power has been well recognised since shortly after self‑government and we would respectfully that it is actually settled that the ACT’s legislative power does not involve the exercise of the Commonwealth’s legislative power.

The observations of the majority in Capital Duplicators, at 281, 282 – Justices Brennan, Deane and Toohey – at pages 1552 and 1553 of the joint book of authorities make that clear. The statements in that case are very well known over a number of years and it confirms that the Assembly is not in any sense an agent or delegate of the Commonwealth Parliament – it is intended to have plenary powers as large and of the same nature of those of the Parliament itself, picking up the observations of Justice Wilson in Toohey; Ex parte Northern Land Council and finally says:

The Legislative Assembly of the Australian Capital Territory has been erected to exercise not the Parliament’s powers but its own, being powers of the same nature as those vested in the Parliament.

Reflecting also, the majority in Svikart v Stewart, Chief Justice Mason, Justices Deane, Dawson and McHugh at pages 561 to 562. Capital Duplicators confirms that the Assembly is not an agent, delegate, or otherwise a member nation of the Commonwealth Parliament. The fact that the ACT Legislative Assembly is not such an agent or delegate is evident from the fact that the Legislative Assembly can, and does, pass legislation that the Commonwealth Parliament could not.

An obvious example is that judicial power invested by ACT laws does not have to comply with the strict doctrine of separation of powers in Chapter III. This has enabled a civil dispute jurisdiction of the ACT Civil and Administrative Tribunal, for example, to be created. It is evident from that that there is in fact a disjunction between the appellant’s argument and the characterisation of the Territory’s legislative power as identified in Capital Duplicators and other authorities. One would say that it cannot be both.

Before moving on to looking at the two propositions individually, it would be appropriate to make some observations in relation to the decision of this Court in Bernasconi. Perhaps the starting point is to pick up on Justice Gordon’s observation this morning that they were different times and they were, very much so. But Bernasconi did not involve an offence enacted directly by the Commonwealth Parliament.

The offence in question was created by Ordinance VII of 1902 of British New Guinea. That picked up and applied the Queensland Criminal Code. The offence that was created through that picked-up law was continued in force by Section 62 of the Papua Act that was passed by the Commonwealth Parliament. Now, in 1907, there was a further ordinance that specified that trials would be held without a jury. The challenge was on the premise that the offence was established by law of the Commonwealth and thereby the obligation for trial by jury applied.

The appellant has taken your Honours to the judgments of Chief Justice Griffith and Justice Isaacs, and I do not propose to quote from those judgements, but there are some matters that I believe can be drawn from that. Because the self-governing legislature of the Territory of Papua New Guinea existed before and after the Papua Act was implemented, the Papua Act did not render the offences that were created by Ordinance VII offences enacted directly or otherwise by the Commonwealth Parliament. They existed before the Papua Act and they were continued in force after the Papua Act and the legislative council that was established by the Papua Act had the power to amend, repeal and deal with those laws.

Now, the conclusion reached in Bernasconi reflects a proper construction of Ordinance VII of 1902 of British New Guinea as it applied in that Territory as an historically self‑governing Territory after the enactment of the Papua Act. The narrow conclusion of Bernasconi applies equally to laws of the self‑governing Territories and there is no reason, in principle, to change that proposition.

This Court should not accept the invitation to distinguish Bernasconi on the basis of a purported distinction between Territories derived by the surrender of territory by a State or other Territories. Such a distinction is not granted in the Constitution. There is also no reason, in principle, to differentiate between external and internal self‑governing territories for the purposes of application of section 80.

The Territory accepts that Chief Justice Griffith – with whom Gavan, Duffy and Rich JJ, agreed and Isaacs J, differed in their reasoning in Bernasconi. The Territory also accepts that some of the observations made by the Court have been overtaken by the evolving jurisprudence on the scope and operation of section 122 and Chapter III of the Constitution. His Honour the Chief Justice, considered that Chapter III had no application to territories of the Commonwealth. That theory of section 122 is no longer current, and has been overtaken by subsequent authority – both in Capital Duplicators, where the majority observed that:

It would therefore be erroneous to construe s. 122 as though it stood isolated from other provisions of the Constitution which might qualify its scope.

That was Justices Brennan, Deane and Toohey at tab 33, 1543, at page 272. A number of the members of the Court in Wurridjal observed that the just terms limitation in 51(xxxi) constrained the Commonwealth’s exercise of its legislative power under section 122.

GAGELER J: Bradley is a better case for you, is it not?

MR GARRISSON: I am sorry, your Honour?

GAGELER J: Bradley is a better case for you to make this point.

MR GARRISSON: Bradley is important from that perspective in terms of the operation of the, for want of a better term, the Kable principle to Territories. Indeed. Do you wish me to say more, your Honour?

GAGELER J: No.

MR GARRISSON: I was going to turn now to the appellant’s primary contention. On the plaintiff’s primary contention, the question before this Court having regard to the background that I have provided, is whether either section 54 or section 60, being the offences for which the appellant was convicted, are relevantly a law of the Commonwealth for the purposes of their trial on indictment having to be by way of jury under section 80.

The appellant’s primary solution is that section 54 and section 60 of the Crimes Act were given direct force by the Commonwealth Parliament under section 122. That is mentioned in their submissions and at 28 and in their reply at footnote 9. The appellant submits that this is so even though the offence is created by both section 54 and section 60 have been subsequently amended buy the Legislative Assembly, and we will be taking your Honours to the question of amendment shortly, that is, the amendments of 2001, 2008 and 2011, which are set out in the submissions of the parties.

We say that there is nothing direct about the operation of section 122 vis-à-vis those provisions of the Crimes Act. The appellant suggests that it is sufficient that the Crimes Act existed on 1 July 1990 and 34(4) operated upon it at that time. The appellant submits that an offence having been given that operation by a Commonwealth Act is relevantly a law of the Commonwealth for the purposes of section 80. With respect, we say that that argument is misconceived. As I earlier observed, since 1 July 1990 when the Crimes Act was removed from Schedule 3 of the Self‑Government Act, the Crimes Act has, by virtue of section 34(4) of the Self‑Government Act, been taken to be an enactment of the Territory, which may be amended or repealed accordingly.

The effect of the appellant’s argument, if accepted, would be to create multiple tiers of Territory enactments. Provisions within the statutes of the ACT will be laws of the Commonwealth, even if the statute itself falls squarely within the terms of 34(4) of the Self-Government Act. This would be so notwithstanding that individual provisions of the statute have their origin in amending statutes passed by the Legislative Assembly or the text of existing provisions that have been amended by the Assembly. Other statutes that were passed by the Legislative Assembly are full-blown, which do not fall the terms of 34(4) would not be laws of the Commonwealth. It raises the question, how many amendments would be required to enact for it to actually then no longer have the characterisation as a law of the Commonwealth?

GAGELER J: Mr Garrisson, I am just not clear about this. Do you say that the Crimes Act ceased to be a law of the Commonwealth as of 1 July 1990 ‑ ‑ ‑

MR GARRISSON: We do, your Honour.

GAGELER J: ‑ ‑ ‑ or as of whenever the 1992 Act commenced?

MR GARRISSON: We say that it, relevantly, was 1 July 1990.

GAGELER J: By force of a ‑ ‑ ‑

MR GARRISSON: By force of law.

GAGELER J: By a Commonwealth law.

MR GARRISSON: Yes, your Honour, and ‑ ‑ ‑

GAGELER J: You do not get an exercise of the section 22 power by the separate ACT polity until the 1992 Act.

MR GARRISSON: Yes, your Honour, correct, and ‑ ‑ ‑

GAGELER J: Do we need to worry about the status of the law between those two dates?

MR GARRISSON: That is exactly the point that I am about to make, your Honour. The Crimes Legislation (Status and Citation) Act, which was passed in 1992 took beyond doubt the question that:

The applied State Act –

the Crimes Act:

shall be taken to be, for all purposes, a law made by the Legislative Assembly as if the provisions of the applied State Act had been re‑enacted in an Act passed by the Assembly and taking effect on the commencement of this Act.

However one wishes to slice and dice the argument about was it amended, was it not amended, did it actually commence in 1990 or did it commence in 1992, the effect of the Status and Citation Act is abundantly clear that in the exercise of the Assembly’s power under section 22, it has picked up, at the very least picked up and applied the Crimes Act 1900 as an ACT law.

GORDON J: The long title of the Act was directly that, was it not? The long title of the Act was “to provide for the Crimes Act, 1900 of the State of New South Wales in its application in the Territory to be treated as an Act passed by the Legislative Assembly”.

MR GARRISSON: Indeed, your Honour, and it is a straightforward process, the process of picking up and applying laws from other jurisdictions is done – if not daily, certainly on a monthly basis. It forms the underpinning, for example, of all of the national co‑operative schemes where a single jurisdiction passes a law and the other States and the Territories pass a law picking up and applying that law in the jurisdiction. This is no different. So, however one wishes to mount the argument about amendment, it seems, in our respectful submission, that the Status and Citation Act puts it beyond any doubt. In terms of amendment ‑ ‑ ‑

STEWARD J: Just before you move away from the Status Act, I am just a little bit intrigued by the language of section 3(1). The first part of is not really a fiction at all, it says:

The applied State Ac shall be taken to be, for all purposes, a law made by the Legislative Assembly –

If you put a full stop there I am not even sure Mr Walker would have anything to complain about, and then the question becomes, what work, if any, do the words that follow it, are they necessary, the “as if the provisions”?

MR GARRISSON: I do not know why they are there, your Honour. I can ‑ ‑ ‑

STEWARD J: Is it a bootstraps situation?

MR GARRISSON: I was about to say that I can only surmise that it was to deal with the argument about whether the Act required amendment or not but I cannot take that point any further.

STEWARD J: All right.

GAGELER J: It was not just to save paper, was it?

GORDON J: It does say “re‑enacted”.

MR GARRISSON: It does, your Honour. That perhaps would deal with part of the argument that my learned friend has raised about Acts being repealed and re‑enacted, which was ‑ ‑ ‑

STEWARD J: It might have been because they were worried about the period prior to 1992.

MR GARRISSON: Yes. I am afraid I have no answer to that, your Honour.

STEWARD J: That is all right.

MR GARRISSON: I should point out – and I am indebted to my friends, counsel for the first respondent – we have become aware of an amendment that was made in 2013, which is the Crimes Legislation Amendment Act which actually changed, or amended, the definition of “sexual intercourse” to expand the physical element, and I am advised that that amended definition was relevant to two of the charges that were brought against the appellant.

If one wishes to look at fundamental amendments that change the very nature of the law, I think perhaps in the nature of the sort of amendments that my learned friend Mr Walker was talking about, that would seem to be it. It actually effectively changes the physical elements of the offense. If I could hand up copies of – and it is sections 5 and 6, your Honours. The prospect that a criminal law that is ostensibly a Territory criminal law but is nevertheless regarded as a law of the Commonwealth does raise the issue that your Honour Justice Gleeson raised before lunch in relation to, who would prosecute it?

Whilst the ACT DPP can prosecute Commonwealth offenses, the same is not reciprocated for the Commonwealth DPP. However, there are provisions in the Commonwealth DPP Act – sorry, and that is section 9 of the Commonwealth DPP Act. There are provisions that relate to State and Territory laws and their interaction. So, the level of uncertainty that would flow from a construction that rendered Territory laws to be laws of the Commonwealth, particularly the criminal laws, would create some level of difficulty.

The special meaning, if I can call it that, your Honours, that the appellant wishes to place on the term “laws of the Commonwealth”, should not be accepted. The term “law of the Commonwealth” should be interpreted consistently. The appellant seeks to rely on some comments in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman and also in Eastman v The Queen. In the appellant’s reply at paragraph 6, they rely on his Honour Justice McHugh’s comments in footnote 192, paragraph 159 of the judgment, which is at tab 36 of the joint book starting at page 1606:

Section 34 of the Australian Capital Territory (Self Government) Act 1988 (Cth), as amended by s 7 of the ACT Supreme Court (Transfer) Act 1992 (Cth), continues the operation of s 18 of the Crimes Act 1900 (NSW) as a law made by the Parliament of the Commonwealth.

Now, the issue there, I believe, your Honours, is the crucial element that Mr Eastman’s offences occurred in January 1989, prior to self‑government. And at that time the Crimes Act was a surrogate Commonwealth law. That explains his Honour’s remarks.

As at 11 May, section 34(5) of the Self‑Government Act did continue the operation of section 18 of the Crimes Act as a law made by the Parliament of the Commonwealth. And I have already taken your Honours to the changes that were made by reason of the amendments that commenced in 1990 and Justices Gummow and Hayne adverted to that in the same Eastman matter at paragraph 44 where they note that section 18 later was transmuted into an enactment subject to amendment or appeal by the Legislative Assembly for the Australian Capital Territory.

We would say that transmutation did not have to await an actual amendment or appeal by the Assembly. It was transmuted at the point in time that it was removed from Schedule 3 and the consequences, or lack of consequences of that being the case, having regard to the Status Act we have already touched on.

The appellant’s secondary contention is that any law made pursuant to the power under section 122 is a law made by the authority of the Commonwealth. That is, all laws passed by the Legislative Assembly are laws of the Commonwealth. The second respondent’s position is that that is simply unsustainable and wrong.

The appellant relies on the proposition that the fact that the power exercised by the Legislative Assembly under section 22, because it relies on a law made under section 122, is a law made by the authority of the Commonwealth. This takes me effectively full circle your Honours, back to the comments of this Court in Capital Duplicators and related authorities.

Laws of the Territory are not laws made under the authority of the Commonwealth Parliament. The effect of the creation of the Assembly as a separate legislature is that it has its own powers and in the same nature as those vested in the Parliament. Justice Gaudron in Capital Duplicators acknowledged the same at page 284. And, as I have observed, it was confirmed in Svikart v Stewart.

In conclusion, your Honours, I have said I would make some observations about the implications of the contentions made by the appellant. The appellant’s reply puts a, with respect, rather astonishing proposition at paragraph 10 that the consequence of reading ACT laws to be laws of the Commonwealth would not be significant. It is submitted that it is not self‑evident that success under ground 2 would have any reach or material impact on the position in Territories other than the ACT, the Northern Territory and the Jervis Bay.

Leaving to one side the question of the Jervis Bay Territory, which of course is in quite a different position, that is a submission that would have very significant impact. It would impact on the administration of justice and the administration generally of the self‑governing Territories.
For example, trials by judge alone in indictable criminal offences would no longer be permitted in the Territory, even if the accused and the prosecution consent. Such trials have taken place since 1993 and countless convictions have thereby been obtained.

It would also not be apparent how, if that were the case, ACT courts are not Federal courts – they are equally established pursuant to authority conferred by the Parliament. In that case, the courts would be exercising Commonwealth judicial power at all times, rendering the appointments of acting judges, special magistrates, invalid – rendering invalid probably the schemes for inquiries into conviction and possibly declarations of incompatibility under the Human Rights Act.

Indeed, the Territory would be required to comply with strict separation of powers, defending exercise of judicial power by non‑court bodies such as the ACAT, to which I referred earlier. The appellant’s argument that it is irrelevant to the issues before this Court really is not consistent with the position that this Court has expressed in the past, and I refer specifically to the observations of your Honour Justice Gageler and Justice Keane in NAAJA, where it was made clear that laws and practices that had been in place for a considerable period of time should not be likely changed.

Unless the Court has any further questions, that concludes my submissions.

KIEFEL CJ: Thank you, Mr Solicitor. Yes, Ms McCann.

MS McCANN: Thank you, your Honours. As your Honours may have appreciated from our written submissions and our outline, at the Court of Appeal proceedings, the first respondent did not take an active participation insofar as the validity arguments were concerned, but rather focused on the factual and other challenges to the convictions under challenge there.

Similarly in this Court, as you may have appreciated, we do not intend to be heard in relation to the validity arguments, but have confined our written submissions and the oral outline to orders on disposition in the event of a successful challenge to the legislation that is under challenge here.

I intend to rely upon those written submissions and the propositions that have been outlined in the oral outline. I think they cover so far as orders for disposition if it is a successful appeal. Unless I can be of further assistance, I will then propose to rely upon the submissions and oral outline.

If the Court pleases.

KIEFEL CJ: Thank you, Ms McCann. Solicitor‑General for the Commonwealth.

MR DONAGHUE: Thank you, your Honour. Your Honours, having regard to the course of oral arguments so far today, I do not propose to address your Honours orally with respect to ground 1 and, therefore, paragraphs 2 and 3 of the oral outline that we have handed up. In essence, what we submit there is that ground 1 is completely answered on the proper construction of section 68, and I do not seek to add to what your Honours have already heard about the proper construction of that provision.

As to ground 2, we submit that the appropriate approach in addressing that ground is not to attempt to answer any wide question as to the relationship between Chapter III and section 122 – let alone between the Constitution as a whole and section 122. As your Honours well know, the question of how Chapter III relates to the Territory’s power is not straightforward. Chief Justice Gleeson and Justices McHugh and Callinan in the Ex parte Eastman Case pointed out that it was an issue that had:

vexed judges and commentators since the earliest days of Federation. It involves “a notoriously technical and difficult branch of Australian constitutional law” –

We submit that the authorities amply bear that out. That caused their Honours in that case to point out at paragraph 9 of their judgment that they were not seeking to answer any:

wide question as to the relationship between Ch III and s. 122 –

but the very particular question that there arose which involved section 72. Consistently with that general injunction to caution, we submit that your Honours will not be assisted by the submissions that the appellant makes, by reference to a return to the first principles or to an attempt to integrate Chapter III and section 122 into the Constitution as a whole. Those kinds of submissions are apt to mislead because they divert your Honours from the very specific question before the Court, which concerns the relationship between section 80 and section 122 – if even that question is reached. The reason I say, if even that question is reached, is because, in our submission, there are two paths of reasoning available to the Court that have the conclusion that ground 2 should be dismissed.

Path 1 is the path sketched in paragraph 4 and 5 of our outline, the essence of which is the phrase “any law of the Commonwealth”, as used in section 80 of the Constitution, does not include an offence created or an offence that has force as a law of a Territory Assembly.

EDELMAN J: That is a submission that takes as a premise that section 80 can operate upon section 122.

MR DONAGHUE: It is, and the alternative path challenges that premise. But your Honours could say that, without getting to the alternative path, law of the Commonwealth, on any view of it, does not include a law passed by a Territory Assembly. And if you were to take that view, and you accept that the offences in question here were offences that had force as laws of a Territory Assembly – and I will submit that they were for three reasons, any one of which is sufficient – if your Honours accept that these offences are offences that have force of Territory laws and that offences that have force as Territory laws are not laws of the Commonwealth, that is enough to dispose with ground 2 without ever reaching Bernasconi.

But if your Honours do not accept that, then Bernasconi stands as a insuperable hurdle to our friend’s case, unless your Honours grant leave to reopen and overrule that case, because, in our submission, the ratio of Bernasconi is that the law of the Commonwealth in section 80 does not include a law passed pursuant to section 22, whether that law has force as a law of the Commonwealth Parliament itself, or a subordinate legislature. So, however way you cut it, if this offence is ultimately referrable to 122, then Bernasconi says it is not a law to which section 80 applies. But, as I say, your Honours do not need to get to that question if our friends cannot first overcome the hurdle of persuading your Honours that this offence is an offence that has force as a law of the Commonwealth, rather than as a law of the Assembly.

So, I propose to start with first path of reasoning, by which your Honours do not reach Bernasconi, and then to address Bernasconi in the alternative. That then directs attention to paragraph 4 of our outline. As your Honours understand from the argument you have already heard today, prior to self-government, the Crimes Act was a law of the New South Wales Parliament that was applicable in the Australian Capital Territory by reason of Commonwealth laws, being Commonwealth laws that were enacted a long time ago, in 1909 and 1910. So, the laws of one legislature applied to the Territory by the laws of another, the Commonwealth.

That change changed such that, in our submission, the status of the Crimes Act 1900 became a law of the Territory; a law that had force as if passed by the Legislative Assembly of the Territory. That, in our submission, happened – well, there are three separate reasons which give different dates, but they all produce the same conclusion, and they are the three reasons we have identified in 4(a), (b), and (c). I will address each of them in turn. It may well be that the easiest and most straightforward answer is actually 4(c): the Status and Citation Act. Your Honours will see we gave some emphasis to that in our written outlines and submit that it is a straightforward answer, but for the sake of completeness I will try efficiently to give your Honours the other two pathways as well.

So, the first pathway depends upon section 34(4) of which you have already heard quite a bit. Could your Honours go back to that provision in volume 1, tab 3, which is the current version of the – or the Self‑Government Act that is currently in force. The first thing to note about section 34 is its heading, “Certain laws converted into enactments”. That heading is, of course, part of the Act; section 13(1) of the Commonwealth Acts Interpretation Act (Cth). Section 13(1) came to say that after the enactment of this Act, but the way the transitional provisions work, then the new rule applies even to Acts passed before. The Acts Interpretation Act was amended in that way, so you can properly have regard to heading in interpreting the provision, and it uses ‑ ‑ ‑

EDELMAN J: Well, maybe you can, but if one is looking at it for the purposes of working out what date the operative laws actually became laws of the Territory then it is difficult to see how one would look at even later retrospective amendments to change a legislative fact of which is the operative Parliament.

MR DONAGHUE: Your Honour, I accept that there is some force in that. Obviously, here we are trying to construe the law and work out what it did at the time that it commenced, but the heading has not changed. The interpretive rule about the use that might be made of it has ‑ ‑ ‑

EDELMAN J: But strictly we should be looking at 34(4) as it was originally enacted.

MR DONAGHUE: Well, your Honour, it might depend – as I understand Mr Walker’s submission, he seeks to give an ongoing always speaking type role to section 34, I think. I may be wrong about that, but he says that even after amendments are being made by the Legislative Assembly you still derive ongoing Commonwealth force for the amended law from section 35.

EDELMAN J: Well, he has to say that because he has got to go right through to the 21st century.

MR DONAGHUE: In the end here, your Honour, the question is: at the time that the offence of which the appellant was convicted, was the offence an offence against the law of the Territory or not? I do not want to get bogged down on the heading because, ultimately, we submit that the operative words give you the same ultimate consequence. But I do invite your Honours to have regard to the fact that if you go over the page you will see under the heading “The Executive” both that:

There shall be an Australian Capital Territory Executive.

And that:

The Executive has responsibility of:

. . .

(b) executing and maintaining enactments and subordinate laws –

so that even before – and the reason I take your Honours to that is that this is all part of a legislative regime that has the evident and obvious purpose of creating within the Territory a new body politic with its own legislative organ, its own executive organ and a few years later the courts transferred over to it. The legislature created by section 8 is a legislature that has plenary legislative power under section 122 to change any of the laws that are applied within the Territory by section 4, and the Executive that is created by this Act is an Executive that is given responsibility for maintaining those applied laws, those laws that become enactments by virtue of section 34. So that even before the Parliament exercised its powers to amend, in a very real sense these were laws of the ACT. These were laws that the ACT Executive thereafter had responsibility for administering rather than the Commonwealth Executive having responsibility for administering.

Now, as Mr Garrisson has explained, section 34 did not actually apply to the Crimes Act as at the date of enactment because, as your Honours have heard, subsection (5) of section 34 as originally enacted said that subsection (4) did not apply to Acts that were listed in Schedule 3, and Schedule 3 originally included the Crimes Act (NSW). That changed, as your Honours have heard, by reason of the ACT Self‑Government (Consequential Provisions) Act section 12(2) and (5), which your Honours have in volume 2, tab 16, but I do not need to take your Honours back to it.

The practical effect of that was that it was only on 1 July 1990 that the Self‑Government Act, by virtue of section 34(4) as it then existed from that date, that it purported to say that the Crimes Act shall be taken to be an enactment and may be amended or repealed accordingly. That is, in our submission, critical to understanding the comments made in Eastman because in Eastman’s Case, as your Honour the Chief Justice put to my friend, the offence had been committed – the alleged offence had been committed in January 1989, so on no view of it did the Self‑Government Act operate to deem the Crimes Act to be anything other than a Commonwealth law on those dates, and so the references there do not help our friends.

I do, however, want to take your Honours to Eastman to make a point in our favour, rather than just the defensive point that I have just made. So, can your Honours go to that case. It is volume 3, tab 47, Re Governor, Goulburn Correctional Centre; Ex Parte Eastman (1999) 200 CLR 322. The issue in this case was about whether or not an acting judge who had been appointed to the ACT Supreme Court and who had conducted Mr Eastman’s trial, was validly appointed, which turned upon whether or not section 72 applied to the ACT Supreme Court, section 72 turning upon whether or not the court was created by the Parliament.

The court held, with Justice Kirby alone in dissent, that the ACT Supreme Court was not a court created by the Commonwealth Parliament. The reasoning to that conclusion differed as between the majority. For Chief Justice Gleeson and Justices McHugh and Callinan – and your Honours do not need to go here, but you see it at paragraph 6 and 9 in particular – their Honours effectively applied Bernasconi. They said that it was sufficient that the court had been created by a law under 122. Their Honours referred to Bernasconi and they said that as a court created by a law supported by 122 it was not a court created by the Parliament within section 72. For Justices Gummow and Hayne, though, their reasoning path was different, and I am taking your Honours to it because it attached quite some importance to section 34 and gives some insight into how section 34 works.

Could your Honours just start, for the sake of completeness, at 43 and 44 of the judgment, where you will see their Honours dealing with the offences. In 43, their Honours explain that:

Provision for the offence of murder was made in s 18 of the Crimes Act 1900 (NSW).

Your Honours can see a reference to the laws – the Commonwealth laws – that applied that New South Wales law within the Territory. So, they are the 1909 and 1910 provisions that were operative, and they were operative because on 10 January 1989, the date of the alleged offence, nothing had happened to change that position. Paragraph 44 is then really obiter because it is talking about things that happened after the offence had been committed. Section 18 was later. The way their Honours described the effect of section 34 as:

transmuted into an enactment subject to amendment or repeal –

and they say at that point, there had not, at that time, been a relevant amendment or appeal but, as they point out at the end of that paragraph, the position at the time, the trial and conviction:

owed its existence to the laws made by the Parliament –

They are the laws that their Honours have identified in paragraph 43. But their Honours saw section 34 as transmuting the New South Wales law, given effect by a Commonwealth law, into a law of the Assembly. Their Honours then move on to the actual question in the case, the section 72 question. And if your Honours go forward a few pages to paragraph 72

KIEFEL CJ: I am sorry, paragraph ‑ ‑ ‑

MR DONAGHUE: Paragraph 72, your Honour, on page 350. You will see that their Honours then turn to the position of the Supreme Court and, in fact, they are summarising self-government early in that paragraph. So the Territory was established:

as a body politic –

and the Assembly gets legislative power by virtue of section 22, which is restricted in various ways. Then, about halfway through the paragraph:

At the time of the commencement of the Self-Government Act, the Supreme Court was that institution established by the Supreme Court Act as a law of the Commonwealth.

And then, from 1 July, the court has been taken, by force of 34(2):

as an enactment which may be amended or repealed by the Assembly.

So here, we are talking about the Supreme Court is a court that, in actual fact, is created by Commonwealth law, and then 34 bites on it, and the question is to transfer it to the ‑ ‑ ‑

GORDON J: Well, 34(2) bites on it, in particular.

MR DONAGHUE: Yes, that is true your Honour, but 34(2) is the provision that bites on Commonwealth laws and it is in relatively the same terms as 34(4). And 34(2), having bitten on it, it is transferred to be a law of the Assembly. The question is: does that transmutation mean that the Supreme Court, originally created by the Commonwealth Parliament, is no longer a court created by the Parliament for the purposes of section 72? And the answer their Honours give is it does mean that. Your Honours will see that at, particularly, paragraph 75:

The phrase in s 34(2) . . . that a law specified in Sch 2 “shall be taken to be an enactment, and may be amended or repealed accordingly” –

so, exactly the same language as 34(4):

was directed to the Assembly and had the substantive operation of conferring upon the Supreme Court Act the status of a law made by the Assembly.

Then, their Honours compare that to other Commonwealth laws that do not become enactments, and it is those other Commonwealth laws that:

retain their character as laws of the Commonwealth and prevail . . . over inconsistent –

laws. But, where section 34 bit, the authority, as you see in paragraph 78 – and I will not read all of it, but the end sentence points out that the authority to appoint Acting Justice Carruthers under the provisions that had been transferred under section 34(2):

were found in an enactment of the Territory.

Their Honours then – and this is important to the issue now before the Court – treated that deeming effected by section 34 as enlivening the mode of reasoning in Capital Duplicators and Svikart. So, having been taken to be laws of the Assembly, the critical passages that distinguish an exercise of legislative authority by the Assembly from an exercise by the Commonwealth were replied by Justices Gummow and Hayne in paragraphs 79 and 80.

The critical paragraph in Svikart v Stewart, which you see at the top of the next page, was applied – I do not think your Honours have actually been taken to this passage:

legislature created to confer self‑government . . . must be regarded as a body separate from the Commonwealth Parliament, so that the exercise of its legislative power, although derived from the Commonwealth Parliament, is not an exercise of the Parliament’s legislative power.”

So, the derivation – the ultimate derivation of authority in the Self‑Government Act does not mean that the resultant law of the Territory is to be treated as a law of the Commonwealth. That is what Capital Duplicators and Svikart v Stewart say.

Their Honours applied that reasoning to the operation of section 34(2) in holding that the Supreme Court was not a court created by the Commonwealth Parliament – notwithstanding the fact that it had been so created before it was transferred to the Territory.

GORDON J: At the foot of 81, their Honours refer to the fact that:

by the time of the appointment of Carruthers A-J, the Supreme Court had been substantially reconstituted . . . by enactments of the Assembly.

Does that alter anything that you have just put to us?

MR DONAGHUE: I accept that that had happened but, in my submission, looking at the way their Honours reason based on section 34, it does not.

GLEESON J: Mr Solicitor, there has never been any suggestion, has there, that the Crimes Act, as it was applied in the ACT prior to self‑government, was a law of the Commonwealth within the meaning of the chapeau in section 34(4)?

MR DONAGHUE: As it was applied?

GLEESON J: Picked up by the – was it the 1909 or 1910 Act?

MR DONAGHUE: Yes. If I am understanding your Honour correctly, the position bit before the commencement of the Self-Government Act, I think, clearly was that the New South Wales Act was applying by force of the Commonwealth law.

GLEESON J: But when you read section 34(4), which commences with the words:

A law (other than a law of the Commonwealth) –

there has never been a suggestion that that excludes the Crimes Act.

MR DONAGHUE: No, I understand the force of what your Honours puts to me. One could have said it was applying in the Territory, not as a New South Wales law, but as a Commonwealth law, and so it should have been dealt with under Schedule 2, rather than under Schedule 4. That is not the way that it was actually done. So, when one goes to the Schedules, you see the Crimes Act 1900 listed in the Schedules, rather than as a Commonwealth version thereof.

So, that pathway of reasoning that I have just put to your Honours is the pathway that says that just by force of section 34(4) alone – and even if nothing else had happened – from 1 July 1990, the Crimes Act was, as a matter of law, an enactment of the Assembly, not a law of the Commonwealth, and so section 80 did not apply for it to that reason. And that does not depend on amendments, or Status and Citation, or anything else, but it does have the consequence that your Honour Justice Gageler raised with my friend, that it involves a Commonwealth law deeming a Commonwealth law not to be a Commonwealth law – or a Commonwealth law deeming a State law to apply in the Territory as a Territory law.

That does not seem to have troubled Justices Gummow and Hayne, and it is an explicable construction of what was occurring, particularly in the context of the creation of a new body politic with its own laws and its own ongoing legislative authority to amend those laws, such that one might reasonably say that, if the Assembly chooses not to amend laws that have been applied as its starting statute book, then that is because it accepts that those laws should continue in force as the applicable laws of its body politic.

EDELMAN J: Although, their Honours do say that the reasoning was subject to whatever may have been the position before 1 July 1992; so, before the Status and Citation Act. Whether you look before or after the Status and Citation Act, it did not matter.

MR DONAGHUE: Your Honour, I may be liable to be corrected, but I think that their Honours were referring to the 1992 date not because of the Status and Citation Act, but because that was the date when the Supreme Court was transferred. So, the court transfer took – so their Honours’ reasoning refers at multiple places to the Transfer Act, and that was the Act that they were particularly concerned with in the context of the section 72 question.

That is pathway 1. Pathway 2 is taking section 34(4) in its terms – it contemplates that the laws that are taken to be enactments may be amended or repealed accordingly. In the exercise, one takes it of the legislative power conferred under section 22 of the Self‑Government Act. In our submission, whatever may have been the case before amendment, once the offences were amended, in our submission, in any relevant respect, they become, by no later than that date, laws of the Territory. Of course, here, as your Honour Justice Gordon drew Mr Walker’s attention to – or indeed Mr Walker’s submissions had referred to the amendments made in 2008 and 2011, Mr Garrisson added another made in 2013, amending fault elements, amending penalties, amending, it seems, physical elements in 2013.

KIEFEL CJ: Mr Solicitor, in relation to pathway 2, in your written submissions do you cite any case for the proposition that via amendment a legislature may be taken to have adopted the laws?

MR DONAGHUE: Your Honour, as to whether we did in our submissions, I will have to check that ‑ ‑ ‑

KIEFEL CJ: I do not think so, but I could be wrong.

MR DONAGHUE: ‑ ‑ ‑ but it may be that we did not. As Justice Gordon mentioned, this is a topic that was discussed by members of the Court in Kartinyeri [1998] HCA 22; (1998) 195 CLR 337. We respectfully submit that your Honour had not misremembered what was said in that case. Justices Gummow and Hayne at paragraph 66 refer to the false dichotomy between partial repeal and amendment, and in the few paragraphs that follow there is a discussion of that topic. At paragraph 9, Chief Justice Brennan and Justice McHugh pick up a passage from Justice Windeyer in Mathieson v Burton, where his Honour had said:

“For some purposes it may sometimes be relevant to distinguish between a repeal and an amendment, or a modification, as the latter is sometimes called. But an amendment which permanently reduces the ambit of any provisions of an Act involves a repeal of it in part. That is because after the amendment the statute no longer operates as it formerly did: and the only way by which a statute which has come into operation can cease to operate is by repeal, express or implied –

et cetera. So, in our submission, the simple point is that once there has been any amendment to the offence provision, one has a law that has never been passed by the Commonwealth Parliament. Commonwealth Parliament just has not said the law is what the provision now states.

GORDON J: Is that not exactly the same point that Justices Gummow and Hayne are making in Ex parte Eastman, at paragraph 81 about the reconstitution of the ACT Supreme Court? This is in a different context but that is the point they are making there as well, are they not?

MR DONAGHUE: Yes, your Honour, and that might suggest that their Honours’ reasoning in Ex parte Eastman is capable of being read as supporting both my pathway 1 and my pathway 2 by reason of what their Honours say at paragraph 81. But, here, unless your Honours are to embrace what we submit is an extremely novel and doctrinally unsound notion that something can be a hybrid law – neither a law of the Commonwealth Parliament, nor a law of the Legislative Assembly – but only able to be identified as some mixture of the two, an offence ‑ ‑ ‑

GORDON J: I think there are two issues that you raise with Mr Walker. One is what he would call this mixed law, having sort of multiple sources and at which point does it transmogrify from being one to a mixed – to becoming something else. So, does it go – Commonwealth, it is mixed with a Territory law and what is necessary – either substantively, or otherwise – to achieve that transmogrification?

MR DONAGHUE: In my submission, the answer to that is that there is no such thing as a mixed law and your Honour should not embrace that idea. The idea that you can have a fault element created by one Parliament and a mental element – sorry, a physical element – created by one Parliament and a fault element created by a different Parliament and that offence is somehow able to be subdivided in that way, is not ‑ ‑ ‑

STEWARD J: Is another way of putting it to say that, by section 34, the Commonwealth intended, by its reference to amendment and repeal, to cede legislative dominion over those Acts to the ACT Assembly?

MR DONAGHUE: Indeed.

STEWARD J: Wholly, 100 per cent from that moment onwards?

MR DONAGHUE: So, my first submission is from the moment that 34 starts because it does not just say you may amend or repeal, it says you may be taking – it shall be taken to be an enactment, so it is wholly ceded at that point. But, in the alternative, it is wholly ceded from the point that the acknowledged power to amend or appeal is exercised in any respect. So, you do not strain to swallow the idea that an offence can be partly a Commonwealth and partly an Assembly offence – or, at one point, I think Mr Walker said that if the Assembly extended the operation of the law, in the extended operation, it would be an Assembly offence but in the original operation, it would be a Commonwealth offence.

In our submission, no. There is one offence created by the provision and once the terms of that offence cannot be sheeted home to an action of the Commonwealth Parliament or a delegate of the Commonwealth Parliament, it is not a Commonwealth law. It is a law that owes its authority to a different law‑making agency – the Assembly. If your Honours accept that, the fact that there were any amendments to these provisions – and, in fact, there were many – is enough to answer the question, is this an offence against – this is an offence against a Territory law and, thus, not an offence against the law of the Commonwealth.

The final pathway, which is the, as I said perhaps the most straightforward one, is the Status and Citation Act (1992). Could your Honours just turn up that Act, it is volume 2, tab 26. It is an Act that commenced on 28 May 1992 and a striking thing about it is that it concerns only one law. It concerns the Crimes Act 1900, and nothing else. Your Honour Justice Gordon has noted the long title, “to be treated as an Act passed by the Legislative Assembly”.

Our friends were a little dismissive of this Act. They say it is just changing the citation convention. Clearly it is partly doing that, that is what section 4 does in its terms. But the Act is called the Status and Citation Act and it does not just consist of section 4, it consists of section 3, dealing with status and 3 (1), as your Honours have heard and I will not read it out to you again, but it is quite explicit: taken for all purposes, to be a law made by the Assembly.

GORDON J: I am sorry to be pedantic, but how – this comes in time before the amendments.

MR DONAGHUE: Yes.

GORDON J: Logically and chronologically.

MR DONAGHUE: Yes.

GORDON J: And one way against your first route home may be that it was seen as necessary to pass this Act, or do you just see it as a bootstraps enactment? Sorry, I mean out of order.

MR DONAGHUE: No, it is conceptually possible, and as indeed the arguments in this case show, that the view might have been taken that, in order for something properly to be viewed as an act of the Legislative Assembly, it requires an exercise of authority by the Legislative Assembly and, in my submission, this Act deals with that possibility by having the Legislative Assembly assert its authority to say, whatever might otherwise be the case, this is our law; treat this law as if we have re‑acted it.

GORDON J: It says it takes “effect on the commencement of this Act”, so it actually gives it a new date of commencement of the re‑enacted Act.

MR DONAGHUE: Yes. Now, if it was already taking effect an Act of the Assembly by reason of 34(4), then this Act of the Assembly could not prevail over it and so one would have the earlier date. But, in my submission, once our friend accepts – as Mr Walker did accept – that it would be sufficient for the Assembly to have repealed the Crimes Act and to have re‑enacted it, your Honours are working with a paper‑thin distinction between the Assembly having done that and the Assembly having passed a provision that says, treat the Crimes Act 1900 (NSW) as if we had re‑enacted it, because that is not a distinction, as Mr Garrisson pointed out.

There are many laws within the Federation where effect is given to a law, the text of which is found somewhere else and it is just picked up and applied. That is normally treated as sufficient to engage the legislative authority of the Assembly that picks up and applies the law. What is wrong with what the Legislative Assembly did here? It is not said that this provision was beyond the power conferred by section 22 and nor could that have been said. So, it must be being suggested that there is some drafting wrinkle that means that this Act was ineffective to do what it says, and in our submission, your Honours have not been given any reason why you should not give effect to the words of section 3(1).

I should just slightly clarify an answer I gave to your Honour Justice Gordon that the amendments to the Crimes Act to the offences in question came after the ‑ ‑ ‑

GORDON J: That is my point, there were some amendments beforehand, but the amendments to these sections came after chronologically.

MR DONAGHUE: But it might well be the case, given that it was the Crimes Act itself that was applied by section 34, that you did not need – it was not only upon the amendment of each section ‑ ‑ ‑

GORDON J: I accept that.

MR DONAGHUE: ‑ ‑ ‑ that it changed its status. Finally, on this point for completeness, for what it is worth, there is an Act, the Statute Law Amendment Act 2001 (No. 2) (ACT), which is not in the joint authorities where the ACT – well, that Act refers in a note to:

The Crimes Act 1900 became an Act of the Legislative Assembly because of the Crimes Legislation (Status and Citation) Act 1992.

So, the Legislation Act has a schedule that lists all the Acts of New South Wales that have become Acts of the Legislative Assembly of the ACT.

KIEFEL CJ: Would you mind giving that citation again, Mr Solicitor?

MR DONAGHUE: Yes, it is the Statute Law Amendment Act 2001 (No 2) (ACT) and the relevant part of it is Schedule 2, item [2.77] which appears on page 142, and it is just a note, but it is a note which records the status of the Act consistently with giving significance to the Citation and Status Act.

Yours Honours, so they are the three paths, independent paths, by which we submit your Honours could conclude, and should conclude, that the offences in question here were offences that had effect as laws of the Assembly. If that premise is made good then it is only if our friend’s second proposition, that even if it is a law of the Assembly it is still captured by section 80, it is only if your Honours accept that second proposition that our friends could succeed, and that second proposition that a law of the Assembly can be treated as a law of the Commonwealth, in our submission, collides directly with Capital Duplicators and Svikart v Stewart. Your Honours have seen the passages already. Justices Gummow and Hayne picked up the key ones in Eastman, so I do not propose to take your Honours back to that.

Your Honours Justice Gageler and Justice Keane in NAAJA – again I will not take the Court to it. Your Honours were the only members of the Court who reached this point, but in holding in that case that Territory Assemblies were not constrained by the separation of powers in Chapter III, your Honours relied on that same line of authority and the distinction between an Assembly law and a Commonwealth law and the fact that one cannot treat an Assembly law as a law of the Commonwealth simply because the ultimate authority for the Assembly law is derived from the Self‑Government Act. Your Honour Justice Gageler addressed this topic at 105 and 106, and 117 and 118 in particular, and Justice Keane at 170 to 171. But, other than that, I am content simply to rely on our written submissions in relation to the matters addressed in paragraph 5 of our outline.

There would be potentially quite startling consequences if Territory laws were to be regarded as laws of the Commonwealth, even when made as an exercise of the independent authority and judgment of the Assembly. Your Honour Justice Gageler drew attention in argument to the ramifications of that conclusion for section 109.

GORDON J: Section 61 might have a bit to play.

MR DONAGHUE: Section 61 would also create some anomaly in that it would seem to suggest that there would be an obligation to execute or administer laws of a separate body politic. In the context of 109, I think Mr Walker accepted that his argument would have the consequence that Territory assemblies can pass laws that override State law, to the extent of only where they have a connection with the peace, order and good government of the Territory, but that formulation includes the power to make extra-territorial laws and it would, in our submission, be an obviously anomalous consequence if Territory assemblies had a power greater than State parliaments to override the laws of other jurisdictions.

So, the submissions that I have made up to this point, in our submission, mean that without needing to rely upon Bernasconi or reach the question of whether a law passed under the authority of section 122 can ever be a law of the Commonwealth, the offences in question here were not
laws of the Commonwealth and so section 80 did not apply. And if your Honours form that view, it would, we submit, be quite contrary to this Court’s usual prudential approach in constitutional cases to say even though we do not need to get there, we will proceed to consider Mr Walker’s application to reopen Bernasconi. That application is made in writing; your Honours heard nothing from Mr Walker orally on the application to reopen. Mr Walker made submissions that Bernasconi is distinguishable, but he did not develop the submissions on the application to reopen.

Probably tomorrow now, given the time, I propose to start with the reasons Bernasconi is not distinguishable and then, if necessary, to address why your Honours should not give leave to reopen that case. But, in very short compass, your Honours are being asked to reopen a case that has stood for over a hundred years where in Spratt v Hermes , over 60 years ago, members of this Court said it has already stood for too long for us to revisit it. Whatever you think of the reasoning, it has stood for too long and it has been relied upon. That was 60 years ago.

It has now been relied upon repeatedly by laws passed that have allowed judge-alone trials in the Territory, that allow, in the Northern Territory, majority verdicts in the Territory, and your Honours are being asked to re‑open that nonetheless and come what may in terms of the consequences. In our submission, it is hard to imagine a stronger case where the fourth John’s factor has the law been independently relied upon in a way that militates against reconsideration. It is hard to imagine a stronger case than this, and certainly, if your Honours do not need to get to that question, in our submission, you should not. But, the ratio of ‑ ‑ ‑

EDELMAN J: Much may depend on what the it is. I mean, if the it is that in no way does Chapter III govern section 122, then it might be hard to say that it is not being relied upon in any way in 100 years.

MR DONAGHUE: If that were the it, in my submission, the ratio of Bernasconi and Spratt v Hermes supports that this reading of it is that a law supported by section 122, whether passed by the Commonwealth Parliament itself, or by a self-governing Territory, is not a law of the Commonwealth for the purpose of section 80. Insofar as the reasoning referred to Chapter III more generally, it has already been wound back in various respects, but that aspect of the holding has not been and, in my submission, should not be reopened – but I see the time, your Honours.

KIEFEL CJ: Yes, thank you. The Court adjourns to 9.30 am tomorrow for the pronouncement of orders, and otherwise to 10.00 am.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 9 FEBRUARY 2022