NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Constitutional law (Cth) – Judicial power of Commonwealth – Immigration detention – Indefinite detention without judicial order – Where plaintiff stateless Rohingya Muslim having well-founded fear of persecution in Myanmar – Where plaintiff's bridging visa cancelled following criminal conviction – Where following release from criminal custody plaintiff taken into immigration detention under s 189 of Migration Act 1958 (Cth) ("Act") – Where plaintiff's application for protection visa refused and finally determined – Where ss 198(1) and 198(6) of Act imposed duty upon officers of Department administering Act to remove plaintiff from Australia as soon as reasonably practicable – Where s 196(1) of Act required plaintiff to be kept in immigration detention until removed from Australia, deported, or granted visa – Where attempts by Department to remove plaintiff from Australia unsuccessful as at date of hearing – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Where plaintiff sought writ of habeas corpus requiring release from detention forthwith – Whether application for leave to reopen constitutional holding in Al Kateb v Godwin (2004) 219 CLR 562 should be granted – Whether constitutional holding in Al Kateb should be overruled – Whether detention of plaintiff punitive contrary to Ch III of Constitution – Whether separation of plaintiff from Australian community pending removal constitutes legitimate and non-punitive purpose – Whether detention of plaintiff reasonably capable of being seen as necessary for legitimate and non punitive purpose.

Immigration – Unlawful non-citizens – Detention pending removal from Australia – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Whether detention of plaintiff authorised by ss 189(1) and 196(1) of Act – Whether application for leave to reopen statutory construction holding in Al-Kateb should be granted.

Words and phrases – "alien", "conservative cautionary principle", "deportation", "deprivation of liberty", "executive detention", "habeas corpus", "indefinite detention", "judicial function", "judicial power of the Commonwealth", "legitimate and non-punitive purpose", "Lim principle", "penal", "power to exclude", "practicable", "punishment", "punitive", "real prospect", "reasonably capable of being seen as necessary", "reasonably foreseeable future", "removal from Australia", "separation from the Australian community", "unlawful non-citizen".

Constitution – s 51(xix), Ch III.
Migration Act 1958 (Cth) – ss 3A, 189, 196, 198.

Dr James Stellios appeared for the Applicant.

Reasons for the High Court’s decision can be found here.

Attorney-General (Cth) v Huynh [2023] HCA 13

Constitutional law — Judicial power — Federal jurisdiction — Where person convicted of offence against law of Commonwealth in state court — Where person sought order for inquiry into conviction — Where person sought to have matter referred to New South Wales Court of Criminal Appeal — Where application unsuccessful — Where person sought judicial review — Whether provisions of Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) applied by their own force to conviction by New South Wales court for offence under law of Commonwealth — Whether provisions of CAR Act picked up by s 68(1) of Judiciary Act 1903 (Cth) — (CTH) Criminal Code Act 1995 ss 11.5, 307.11 — (NSW) Crimes (Appeal and Review) Act 2001 ss 76, 77, 78, 79, 86 — (NSW) Criminal Appeal Act 1912 s 5.

Dr James Stellios appeared as amicus curiae.

Reasons for the decision can be found here.

Vunilagi v The Queen [2023] HCA 24

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in Territory courts – Institutional integrity of Territory courts – Where s 68BA inserted into Supreme Court Act 1933 (ACT) in response to COVID-19 pandemic – Where s 68BA(3) allowed Supreme Court of Australian Capital Territory ("ACT") to make order for trial by judge alone for previously excluded indictable offences if satisfied order would ensure orderly and expeditious discharge of Court business and in interests of justice – Where s 68BA(4) required judge to provide written notice of proposed order under s 68BA(3) – Where no requirement for election or consent by accused – Where Justice of Supreme Court proposed to and did order trial by judge alone despite appellant's submissions opposing order – Where appellant tried and convicted under ss 54 and 60 of Crimes Act 1900 (ACT) – Whether s 68BA(4) substantially impaired institutional integrity of Territory courts as function conferred incompatible with position of Territory court as repository of federal jurisdiction.

Constitutional law (Cth) – Trial by jury – Where prior to self-government Crimes Act 1900 (NSW) picked up and applied in ACT as surrogate federal law – Where following self-government Commonwealth law provided Crimes Act 1900 (NSW) shall be taken to be enacted by ACT Legislative Assembly and may be amended and repealed – Where subsequent ACT law provided Crimes Act 1900 (NSW) to be treated as an Act passed by ACT Legislative Assembly – Where ss 54 and 60 of Crimes Act 1900 (ACT) were indictable offences – Whether ss 54 and 60 were laws of the Commonwealth within meaning of s 80 of Constitution – Whether "any law of the Commonwealth" within meaning of s 80 of Constitution includes laws of ACT Legislative Assembly as "subordinate legislature" – Whether miscarriage of justice as trial on indictment was not by jury contrary to s 80 of Constitution – Whether R v Bernasconi (1915) 19 CLR 629 should be re-opened or overruled.

Words and phrases – "amend or repeal", "case management", "Ch III court", "COVID-19 emergency period", "gatekeeping function", "independent body politic", "institutional integrity", "interests of justice", "judge alone trial", "Kable principle", "law of the Commonwealth", "overruling constitutional precedent", "peace, order and good government of the Territory", "picked up and applied", "plenary power", "proposed order", "prudential approach", "self-government", "statutory fiction", "subordinate legislature", "taken to be an enactment", "trial on indictment".

Constitution, Ch III, ss 80, 111, 122. ACT Self-Government (Consequential Provisions) Act 1988 (Cth), s 12. Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 7, 8, 22, 34. 

Dr James Stellios appeared for the appellant.

Reasons for the decision can be found here.

Vella v Commissioner of Police (NSW) [2019] HCA 38

Constitutional law (Cth) – Judicial power – Constitution – Ch III – State Parliament – Institutional integrity of State courts – Where s 5(1) of Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) provides that State court may make order if satisfied that specified person has been convicted of serious criminal offence or involved in serious crime related activity and satisfied that reasonable grounds to believe that making of order would protect public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where s 6(1) of Act provides that order against that specified person may contain such prohibitions, restrictions, requirements and other provisions as court considers appropriate for purpose of protecting public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where proceedings under Act are civil proceedings – Whether making order exercise of judicial power – Whether powers conferred by Act incompatible with State court's role as repository of federal judicial power – Whether powers conferred by Act substantially impair institutional integrity of State court.

Dr. James Stellios represented the defendant.

The reasons for the decision can be found here.

MASSON AND PARSONS & ORS [2019] HCA 21

Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction.

Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child's financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be "parent" within ordinary meaning of word but not under s60H – Whether s60H exhaustive of persons who may qualify as "parent" of child born of artificial conception procedure – Whether "parent" used in Family Law Act according to ordinary meaning except as otherwise provided – Whether appellant is "parent" within ordinary meaning – Whether ordinary meaning of "parent" excludes "sperm donor" – Whether appellant is "sperm donor".

Constitution, s 109.
Family Law Act 1975 (Cth), ss 4, 60B, 60EA, 60G, 60H, 61D, 61DA. Judiciary Act 1903 (Cth), s 79(1).
Status of Children Act 1996 (NSW), Pt 3 Div 1.

Michelle McMahon, Dr James Stellios led by Brett Walker SC represented the first and second respondents.

Reasons for the decisions can be found here.

PHAN V R [2018] NSWCCA 225

CRIME – conviction appeal – attempt to possess a commercial quantity of an unlawfully imported border controlled substance contrary to ss 11.1 and 307.5 of the Criminal Code (Cth)

CRIME – procedure – four accused – verdicts returned against two accused when jury was constituted by 12 jurors – lengthy jury deliberations – jury notes – Black direction in respect of co-accused – “partial” Black direction in respect of co-accused and appellant – discharge of juror – order that trial continue with 11 jurors – Black direction in respect of co-accused and appellant – discharge of another juror – order that the trial continue with 10 jurors – illness of juror in jury room – jury allowed to separate over Christmas – upon return of jury, third juror discharged – order that trial continue with 9 jurors – note from juror – examination by judge of juror and foreperson – jury discharged in respect of coaccused – jury not discharged in respect of appellant – guilty verdict returned shortly thereafter

CRIME – s 53C Jury Act – discharge of jurors – consideration of risk of substantial miscarriage of justice – secrecy of jury deliberations – maintenance of a fair trial – trial in progress beyond 2 months – order of jury deliberations – whether error in ordering continuation of trial with 9 jurors – anxiety disorder of discharged juror – unprecedented length of jury deliberations – reasonableness and well-being of remaining jurors – whether discharge of three jurors upset the balance of the remaining jurors – whether error in declining to discharge the jury following receipt of juror’s note and examination of juror and foreperson – whether error in continuing trial after discharge of jury in respect of coaccused – whether discharged juror may have been a dissentient juror – benefit of hindsight – whether error in confining consideration of discharge to the likelihood of reaching a unanimous verdict – s 56(3) Jury Act – House v The King error – failure to consider whether the ability of the nine remaining jurors to carry out their function had been compromised – substantial miscarriage of justice – guilty verdict quashed

Dr James Stellios represented the First Intervenor.

Reasons for the decision can be found here.

Rizeq v Western Australia [2017] HCA 23

From the High Court of Australia:

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Where appellant resident of New South Wales – Where appellant indicted for offence against law of Western Australia – Where matter between State and resident of another State within meaning of s 75(iv) of Constitution – Where District Court of Western Australia exercising federal jurisdiction – Whether provisions of State Act picked up and applied as Commonwealth law – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 6(1)(a) of Misuse of Drugs Act 1981 (WA) – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 114(2) of Criminal Procedure Act 2004 (WA).

Criminal law – Appeal against conviction – Where trial by jury in federal jurisdiction – Where majority verdict of guilty returned – Whether unanimous jury verdict required by s 80 of Constitution – Whether majority jury verdict permitted under s 114(2) of Criminal Procedure Act 2004 (WA).

Words and phrases – "accrued jurisdiction", "diversity jurisdiction", "Federal Judicature", "federal jurisdiction", "jurisdiction", "matter", "picked up and applied", "power", "State jurisdiction", "State legislative capacity", "trial by jury".

Dr James Stellios assisted Matthew Howard SC in representing the appellant.

National Road Transport Association Ltd v Road Safety Remuneration Tribunal [2016] FCAFC 56

PRACTICE AND PROCEDURE – Application for prerogative remedies in respect of orders and decision of statutory tribunal – Interlocutory application for stay of order and decision – Whether prima facie case of invalidity – Whether strong case – Whether exceptional circumstances shown – Interests of parties and wider community – Imminence of final hearing.

Dr Christopher Ward SC and Dr James Stellios appeared for the Commonwealth Minister for Employment, the Hon. Michaelia Cash MP.

Australian Industry Group v Road Safety and Remuneration Tribunal [2016] FCA

INJUNCTION - decision of Road Safety and Remuneration Tribunal - introduction of new minimum pay rates for for long-distance drivers and those involved in the distribution of goods destined for sale or hire by supermarket chains.

Dr Christopher Ward SC and Dr James Stellios appeared for the Commonwealth Minister for Employment, the Hon. Michaelia Cash MP in these proceedings concerning the decision of the Road Safety and Remuneration Tribunal.

AFR Report

The Australian report

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41

STATUTORY INTERPRETATION – Div 4AA of Pt VII of Police Administration Act (NT) provides members of Northern Territory Police Force who arrest person without warrant in relation to infringement notice offence can detain person for up to four hours – Whether detention penal or punitive in character – Relevance of principle of legality – Relevance of principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs  (1992) 176 CLR 1.

CONSTITUTIONAL LAW (CTH) – Separation of judicial power – Whether Legislative Assembly of Northern Territory subject to constitutional limitations which limit legislative power of Commonwealth Parliament – Interaction between s 122 and Ch III of Commonwealth Constitution.

CONSTITUTIONAL LAW (CTH) – Constitution – Ch III – Principle in Kable v Director of Public Prosecutions (NSW)  [1996] HCA 24;  (1996) 189 CLR 51 – Whether Div 4AA of Pt VII of Police Administration Act (NT) conferred powers on Northern Territory executive which impaired, undermined or detracted from institutional integrity of Northern Territory courts. 

WORDS AND PHRASES – "infringement notice offence", "institutional integrity", "Kable principle", "penal or punitive", "separation of judicial power", "supervisory jurisdiction". 

Constitution, Ch III, s 122.
Bail Act (NT), ss 16, 33. 
Fines and Penalties (Recovery) Act (NT), ss 9, 12B, 13, 21, 22. 
Police Administration Act (NT), Pt VII, Div 4AA; ss 123, 137, 138.
Police Administration Regulations (NT), reg 1

Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13

CONSTITUTIONAL LAW – Judicial power – Independent Commission Against Corruption produced reports which recommended passing legislation to cancel three exploration licences granted under Mining Act 1992 (NSW) – Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) ("Amendment Act") inserted Sched 6A into Mining Act 1992 (NSW), cancelling three licences without compensation – Whether Amendment Act involves exercise of judicial power in nature of, or akin to, bill of pains and penalties.

CONSTITUTIONAL LAW – Constitution Act 1902 (NSW) – Legislative competence of New South Wales Parliament – Whether Amendment Act is "law" within meaning of s 5 of Constitution Act 1902 (NSW).

CONSTITUTIONAL LAW – Inconsistency between Commonwealth and State laws – Provision of Amendment Act authorised use or disclosure of information contained in works – Whether provision of Amendment Act inconsistent with Copyright Act 1968 (Cth) and invalid to extent of inconsistency.

Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13