ALQ June 2023 - Constitutional Law

Decision summaries

A department’s role in assisting minister may be impliedly limited by statute

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10

Section 351 of the Migration Act 1958 (Cth) conferred upon the Minister responsible for that Act a personal, non-compellable power to substitute a more favourable decision on a visa application for that made by a tribunal. The exercise of the power depended on an assessment of the public interest. In 2016, the then Minister issued guidelines to their department indicating when they wanted a request for Ministerial intervention under s. 351 to be referred to them. Following the guidelines, departmental officers assessed and finalised requests for intervention. In appeals brought by affected persons, the High Court considered whether departmental officers acted lawfully in following those guidelines.

The appellants contended that it was inconsistent with the personal nature of the power conferred on the Minister by s. 351 for departmental officers, following Ministerial guidelines, to effectively determine where the public interest lay. The Commonwealth parties denied that the guidelines involved any such determination.

It is a fundamental constitutional principle that executive power is susceptible to control by statute. In conferring on the minister a power that required them to personally form a view as to the public interest, the Commonwealth Parliament has impliedly limited the executive power which supports the advice and assistance which departmental officers provide to ministers. The assessment and finalisation required by the guidelines transgressed that statutory limit.

‘Notional GST’ is not unconstitutional

Hornsby Shire Council v Commonwealth of Australia [2023] HCA 19

Section 114 of the Constitution (Cth) provides that the Commonwealth may not impose a tax on the property of any kind belonging to a State. The Commonwealth acts imposing GST expressly do not impose any tax on property belonging to a State. However, by Intergovernmental Agreements between the States and the Commonwealth, the States agree that they will act as if GST applies to them, by remitting amounts equivalent to GST to the Commonwealth (referred to as ‘notional GST’).

To put that agreement into effect, NSW enacted the Intergovernmental Agreement Implementation (GST) Act 2000, s. 5 of which provides that State entities ‘may pay’ notional GST.

The Commonwealth also enacted amendments to the Local Government Assistance Act 1995 (Cth), imposing additional conditions on grants made to the States pursuant to s. 96 of the Constitution for payment on to local governing authorities. The new conditions included s. 15(aa), which required the States to withhold, from local governing bodies, grant monies equivalent to amounts of notional GST which ‘should have, but have not, been paid’ by local governing bodies, and pay those amounts to the Commonwealth.

Hornsby Shire Council sued the Commonwealth and NSW in the original jurisdiction of the High Court, contending that this regime contravened s. 114 of the Constitution. The parties filed a special case, relevantly agreeing that:

1.  the Council fell within the concept of ‘a State’ for the purposes of s. 114
2.  the Council had paid notional GST on the sale of certain of its property.

Questions of law were stated for the consideration of the Full Court.

The Council argued, in the alternative, that:

1.  s. 15(aa) imposes an express liability to pay notional GST
2.  s. 15(aa) creates an enforcement mechanism by requiring NSW to repay notional GST not paid by the Council
3.  the Council was ‘practically compelled’ to pay notional GST because of the reduction in the grant that would otherwise be paid to it
4.  that the legislative regime as a whole constituted a circuitous device.

The Court rejected each basis on which it was said that notional GST was a tax. The Court held that none of the impugned provisions, either separately in combination, imposed a tax, including on property belonging to the Council contrary to s. 114 of the Constitution.

Who should determine bias questions in multi-member courts

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15

This case concerned whether orders made by the Full Court of the Federal Court were beyond jurisdiction on the basis of a reasonable apprehension of bias on the part of one member of the Court, Bromwich J. The apprehension of bias was said to arise from the circumstance that, when Bromwich J was the Commonwealth Director of Public Prosecutions, he had acted as senior counsel in a criminal appeal concerning the appellant.

Five members of the High Court held that the decision of the Full Court of the Federal Court was affected by apprehended bias, and thus allowed the appeal. In separate judgments, Steward and Gleeson JJ disagreed.

Though not strictly necessary to consider, six members of the Court also considered the question of who should determine bias questions in multi-member courts. (Gleeson J preferred not to express an opinion).

Kiefel CJ and Gageler J considered that bias questions should be determined by the whole court, not just the member whose impartiality is questioned. While Gordon J suggested that there was not, and could not be, a single set of ‘universally applicable procedures for dealing with recusal applications in multi-member courts’, her Honour went on to say that:

‘The preferable, if not the proper, course is for the judge in question to be given the opportunity initially to decide for themselves whether they will recuse. This may happen informally at or around the time of allocation of the matter, or it may occur later – for example, after hearing an objection from one of the parties. Only if the judge does not recuse themselves, and an objection is maintained or there are matters that the other judges consider may give rise to a potential for apprehended bias, does the Full Court as a whole need to determine the issue.’

Like Gordon J, Edelman J considered that a judge whose impartiality is questioned should have ‘the first opportunity – prior to consideration by the court as a whole – to determine whether to recuse themselves for bias issues’. If, after a judge has made a decision to dismiss a recusal application, a majority of the court concludes that the member should be recused, ‘then that court, as constituted, has no jurisdiction to make orders’. Steward J agreed with Gordon J on the approach to recusal applications in multi-member courts (but, as noted, disagreed on the outcome in this case). Jagot J considered that, as a matter of convention, only the judge whose impartiality is impugned decides a recusal application; ‘[t]he jurisdiction of the court as constituted rises or falls on the decision of that judge’. This convention is, of course, open to change — but her Honour did not think it should lightly be changed.

High Court refuses special leave for Kable challenge to committal procedures in NSW

Landrey v Director of Public Prosecutions (NSW) & Ors [2023] HCATrans 89

Mr Landrey is the subject of committal proceedings, conducted under the scheme in Chap. 3, Pt 2 of the Criminal Procedure Act 1986, for a series of indictable offences. He sought a declaration in the Supreme Court that the committal scheme undermines the institutional integrity of the Local Court and accordingly is invalid, relying on the principle in Kable v Director of Public Prosecutions (1996) 189 CLR 51. The Court of Appeal, to which the proceeding had been removed, dismissed the summons: Landrey v Director of Public Prosecutions & Anor [2022] NSWCA 211. Mr Landrey sought special leave to appeal.

Historically, including in NSW prior to 2017, the judicial officer determining a committal application was required to decide whether there was a reasonable prospect that a jury would convict the accused of the charged offences, prior to making an order for committal. Under the current scheme, the prosecutor is obliged to certify its view that there are reasonable prospects of conviction and, subject to confirming compliance with case management obligations, the Local Court is then required to make the committal order. Mr Landrey contended that this function means the Local Court is unable to act independently of the decisions of the prosecutor and is thus invalidly conscripted to act as the alter-ego of the State.

The High Court refused special leave on the basis that any appeal would have insufficient prospects of success. That outcome leaves in place the Court of Appeal’s decision that the committal function in NSW is valid, as essentially entailing a case management function and not involving the Local Court adopting the view of the prosecutor as to the prospects of success of the prosecution.

Power to make public health orders not unconstitutional

Stratton v State of New South Wales [2023] NSWSC 396

Mr Stratton and Ms Pandolfi attended protests during a COVID-19 lockdown period and were charged with offences under s. 10 of the Public Health Act 2010 for failing to comply with a direction of the Minister for Health made pursuant to s. 7 of the Public Health Act, which required them not to participate in outdoor public gatherings of a particular size.

In proceedings brought by Summons in the Supreme Court, the plaintiffs sought declarations of invalidity in respect of the directions and ss. 7 and 10 of the Public Health Act on the basis that they impermissibly burdened the implied freedom of political communication.

The plaintiffs sought to apply the ‘structured proportionality’ test directly to the Minister’s directions, rather than to the Public Health Act. They argued that High Court authority permitted that approach for certain kinds of very broad powers. They also relied on the Victorian equivalent of the Public Health Act to argue that the impugned provisions were not ‘necessary’, within the meaning of the test, because the Victorian Act was ‘hedged’ with constitutionally significant limitations on the power to burden the implied freedom.

Mitchelmore J, dismissing the plaintiffs’ Summons, held that the structured proportionality test was to be applied at the level of the statute in this case. While the Public Health Act imposes a burden on political communication, this is for a legitimate purpose (being the protection of public health). The law is suitable to the achievement of that purpose (in that it had a rational connection to it), it is necessary (and the Victorian act did not demonstrate otherwise) and it is adequate in its balance. The burden on the implied freedom was therefore justified.

Back to top