The Constitution and the Territories

Bharan Narula

Vunilagi v The Queen [2023] HCA 24

The High Court has confirmed unanimously that the Kable principle applies to the territories and that a law of a self-governing territory legislature (whose legislative power is derived from a Commonwealth law made under s 122 of the Constitution) is not a ‘law of the Commonwealth’ for the purposes of s 80 of the Constitution which requires that ‘[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury’. Accordingly it is not constitutionally invalid for a self-governing territory to enact a law permitting a trial on indictment by judge alone.


The appellant was convicted following a trial by judge alone (Murrell CJ) in the Supreme Court of the Australian Capital Territory of seven counts of sexual intercourse without consent and one count of an act of indecency without consent contrary to ss 54 and 60 of the Crimes Act 1900 (ACT). The order for a trial by judge alone, which was opposed by the appellant and the Crown, was made pursuant to s 68BA(3) of the Supreme Court Act 1933 (ACT) (now repealed) which was enacted in the context of the COVID-19 pandemic and the requirements of public health emergency declarations (see [1]-[2], [8]-[9], [60], [79]-[80]).

Relevantly, s 68BA(3) provided that the court may order a trial by judge alone if satisfied that the order ‘will ensure the orderly and expeditious discharge of the business of the court’ and ‘is otherwise in the interests of justice’. Before making this order, s 68BA(4) required the court to give the parties ‘written notice of the proposed order’ and, in that notice, ‘invite the parties to make submissions about the proposed order within 7 days after receiving the notice’ (see [5], [77], [136]).

Two grounds

The ACT Court of Appeal dismissed the appellant’s appeal in which he argued that s 68BA was invalid. The appeal to the High Court concerned whether s 68BA was invalid because it: (1) infringed the Kable principle (Kable Ground); or (2) was inconsistent with s 80 of the Constitution (Section 80 Ground) (see [10], [81]).

In four separate judgments, the High Court unanimously dismissed the appeal.

Kable Ground

The principle for which Kable stands is that ‘because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid’ (at [12], also [82]).

The appellant asserted that the ‘constitutional flaw’ with the ‘gatekeeping function’ given to a judge under s 68BA(4) ‘lay in the power to select arbitrarily from a relevantly identical class of accused persons to whom the s 68BA(3) criteria were prima facie applicable’ (at [15]-[16], [141]).

It was not in issue, and each of their Honours accepted, that the Kable principle applied in the ACT (at [12], [60], [82], [139], [174]). The ACTSC is capable of exercising the judicial power of the Commonwealth in the exercise of jurisdiction conferred on it by laws made by Commonwealth Parliament (at [82], also [62], [139]). Their Honours ultimately held that, properly construed, s 68BA did not infringe the Kable principle (at [17]-[24], [60], [85]-[92], [130], [142]-[145]).

Kiefel CJ, Gleeson and Jagot JJ, with whom Gageler J agreed (at [60]), held that by characterising the function under s 68BA(4) as a ‘gateway’ one, the appellant incorrectly construes it as separate from (and in some respects as governing) the exercise of power under s 68BA(3) (at [17]). Properly construed, ss 68BA(3)-(4) operated together, with s 68BA(4) being facilitative of and ancillary to s 68BA(3)), and their function was more in the nature of case management enabling the Court to manage its criminal caseload during a public health emergency while ensuring that the interests of justice were served (at [19]). The evident purpose of s 68BA(4) was to provide procedural fairness, which conforms to the Kable principle (at [23]).

Gordon and Steward JJ held that s 68BA contained a single operative power for ordering a trial by judge alone, and there was no separate ‘gatekeeping’ or ‘screening’ power (at [85]). The giving of notice and hearing of submissions whether express (under s 68BA(4)) or implied (in the absence of s 68BA(4)) were ‘necessary for the power in s 68BA(3) to conform with the Kable principle’ (at [88]).

Edelman J considered that it was incorrect to submit that s 68BA provided ‘no discernible criteria’ to determine whether an order for a judge alone trial would be proposed (at [130], [140]-[142]), because the ACT Legislative Assembly must be taken to have presupposed that cases would be considered for proposed judge alone trials which could only be performed by reference to case management considerations (at [130], [145]). Section 68BA(4) is based on a presupposition that the ACTSC will consider in each case whether to propose to order a judge alone trial (at [142]).

Section 80 Ground

Section 80 of the Constitution (which appears in Ch III) provides relevantly that ‘[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury…’. Section 122 of the Constitution provides relevantly that the Commonwealth Parliament ‘may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth…’.

In 1909, the geographic area which is the ACT was surrendered by NSW and accepted as a territory by the Commonwealth. From 1911 until 1989, the ACT was administered by the Commonwealth directly under ss 61 and 122 of the Constitution; and the Crimes Act 1900Crimes Act 1900 (NSW) (NSW Crimes Act) was picked up and applied as a surrogate federal law (see [26], [28], [102], [109], [147], 201).

From 11 May 1989, the Territory was established as a body politic under the Crown by virtue of a Commonwealth Act, the Australian Capital Territory (Self- Government) Act 1988 (Cth), s 7. From 28 May 1992, the ACT Legislative Assembly enacted the Crimes Legislation (Status and Citation) Act 1992 (ACT) (Status and Citation Act) providing that the NSW Crimes Act ‘shall be taken to be, for all purposes, a law made by the Legislative Assembly as if the provisions…had been re-enacted’ (see [29], [33]-[35], [69], [117], 201, [218]).

Their Honours each observed that insofar as it was said in R v Bernasconi (1915) 19 CLR 629 that Ch III does not apply to the territories, this is ‘now considered to be incorrect’ (at [54]), it ‘no longer accords with the doctrine of the Court’ (at [62]), ‘was based on a now discredited view’ (at [96]) and ‘is unprincipled and contrary to the stream of authority and precedent in this Court’ (at [170]).

To the extent that Bernasconi had been understood to decide that the requirements of s 80 of the Constitution did not apply to s 122, with the exception of Edelman J, their Honours considered that it was not necessary to distinguish or re-open Bernasconi because the laws of self-governing territories are not the laws of the Commonwealth Parliament (at [55], [62], [98]). Edelman J held that the logically anterior question to interpreting the meaning of the words of s 80 was whether s 80 was applicable at all and that, Bernasconi was manifestly wrong, contrary to the stream of authority and precedent, ought be reopened and its reasoning rejected (at [132], [151], [172], [178], [220]). His Honour held that as ss 54 and 60 of the Crimes Act 1900 (ACT) were not laws of the Commonwealth, it was not necessary to consider whether a similar approach could re-explain the result in Bernasconi (at [222]-[223]).

The key matters held by the Court were as follows:

1. the phrase ‘law of the Commonwealth’ in s 80 of the Constitution refers to laws made by the Commonwealth Parliament under its legislative powers, and not those of the ACT Legislative Assembly (at [51], [55]-[57], [66], [98], [126], [133], [218]-[219]). The converse would appear to result in the laws of a territory legislature prevailing over inconsistent State laws (s 109 of the Constitution); and the Commonwealth potentially being obliged to execute and administer the laws of a territory legislature (s 61 of the Constitution) (at [52], [127], [207]); and

2. at least from 28 May 1992 when the Status and Citation Act was enacted, and applicable to the appellant, the impugned provisions of the Crimes Act 1900 (ACT) were laws of the ACT Legislative Assembly and not laws of the Commonwealth (at [50], [73], [120], [209], [219], [222]). BN

Bharan Narula

Wardell Chambers