Vunilagi v The Queen [2023] HCA 24 | Case summary

Vunilagi v The Queen [2023] HCA 24 | Case summary | Zoe

The "COVID-19 emergency period" was the period from 16 March 2020 and ending on 31 December 2020[5].
The Explanatory Statement to the Emergency Response Act gave as two of the purposes of s 68BA: the protection of the right of a person charged with a criminal offence to be tried without unreasonable delay; and avoiding putting members of a jury at unnecessary risk[6]. It noted as important that the discretion in s 68BA could only be exercised once the parties to the proceedings had the opportunity to consider whether the trial should be by judge alone and make any submissions to the Court[7]. That was clearly enough a reference to the purpose of s 68BA(4).
On 9 July 2020, s 68BA was repealed[8], but by s 116[9] of the Supreme Court Act the Court could continue to make an order under s 68BA(3) if a notice had been given under s 68BA(4) prior to the repeal of the provision.
On 18 June 2020, notice was given to the appellant and his co-accused (under s 68BA(4)), who were then invited to make submissions because Murrell CJ proposed to make an order under s 68BA(3). The appellant made submissions and opposed the order. By the time of the hearing, his co-accused supported the making of the order. Her Honour found that it was in the interests of justice that the trial proceed before a judge alone[10] and, as noted at the outset of these reasons, made an order accordingly. In relation to the matter stated in s 68BA(3)(a), her Honour found that the trial could not proceed as a jury trial in accordance with social distancing requirements given, in particular, the number of legal representatives. The length of the trial rendered greater the likelihood of delays being caused as a result of COVID‑19 testing requirements and constraints. Her Honour considered that it was in the interests of the complainant, the witnesses and the accused that the matter be resolved expeditiously, noting that three accused were detained in custody.
Following his conviction, the appellant appealed to the Court of Appeal. He argued that his trial miscarried on the basis that s 68BA was invalid. The Court of Appeal dismissed the appeal[11]. The grounds for the appeal to this Court are that the Court of Appeal was wrong to hold: (1) that s 68BA, in its continuing operation, did not contravene the limitation derived from this Court's decision in Kable v Director of Public Prosecutions (NSW)[12]; and (2) that the section is not inconsistent with the requirement in s 80 of the Constitution that the appellant's mode of trial be by jury.
Neither ground is made out. The appeal should be dismissed.

The appellant's case is that the function given to the Supreme Court by s 68BA(4) impaired its institutional integrity by departing to a significant degree from the processes which characterise the exercise of judicial power[15]. As noted above, the appellant focuses only upon what was involved in the process prescribed by sub-s (4). The appellant does not challenge the process undertaken under s 68BA(3).
The appellant accepts that s 68BA(3) required conditions in the nature of jurisdictional facts to be satisfied. The discretion which then arose under that provision involved a regular exercise of judicial power that was to be discharged judicially. The appellant accepts that it involved the usual incidents of the judicial process, including an open and public enquiry, procedural fairness and the giving of reasons.
The constitutional flaw which the appellant identifies in s 68BA, as relevant to the Kable principle, was in the "gatekeeping function" given to a judge under s 68BA(4) to determine the persons, from a relevantly identical class, to be subject to the exercise of the judicial function under sub-s (3). By contrast to the function under sub-s (3), the application of the gatekeeping function in sub-s (4) was inscrutable, the appellant submits. It exposed some, but not all, persons to the risk of losing a jury trial. This latter submission appears to be based upon an incorrect premise that s 80 confers something in the nature of a personal right to a trial by jury[16], but this may be put to one side.
The differential treatment of persons, which the appellant says is contrary to the precept of "equal justice", is said to be brought about because the gatekeeping function of s 68BA(4) was relevantly arbitrary. It was arbitrary because there was no duty to consider whether a notice should be given and the Supreme Court was not required to give reasons for proposing an order under sub‑s (3). There were no criteria and no discernible test which might be applied by the Court. In this regard it cannot be said that those criteria were supplied by s 68BA(3).
It may first be observed that in characterising the function under s 68BA(4) as a "gatekeeping" one, the appellant construes it as separate from, and in some respects as governing, the exercise of power under sub-s (3). Neither approach to the construction of s 68BA is correct.
Section 68BA was general in its application. By s 68BA(1) and (2) it applied to all criminal proceedings where the trial was to be conducted during the COVID‑19 emergency period. Section 68BA(3) was central to the section and its purpose. It provided the power for the Supreme Court to determine if a criminal proceeding was to be tried by a judge alone. It was expressly subject to satisfaction of the two conditions that such an order: (a) would ensure the orderly and expeditious discharge of the business of the Court; and (b) was otherwise in the interests of justice. Section 68BA(4) added a further condition to the exercise of that power. It required that before an order for a judge alone trial was made: (a) a notice be given to the parties of the proposed order; and (b) the parties be invited to make submissions about the proposed order.
Properly construed, sub-ss (3) and (4) operated together. Far from operating as a "gatekeeping" function, sub-s (4) is to be understood as facilitative of and ancillary to the power which was to be exercised under sub-s (3). The function of the sub-sections was more in the nature of case management. The appellant does not deny this. By these means the Court was able to manage its criminal caseload during a public health emergency whilst at the same time ensuring that the interests of justice were served.
The second error made by the appellant as to the construction of s 68BA concerns the scheme of the section and the place of sub-s (4) in it. The appellant's assumption, that sub-s (4) encompassed a decision‑making process about who was to be the recipient of a notice under sub-s (4) and therefore the subject of a decision under sub-s (3), finds no support in the text of sub-s (4). The scheme of s 68BA was to provide the Supreme Court with the power to order that a criminal proceeding be tried by judge alone if the conditions in s 68BA(3) were met. It left it to the Supreme Court to propose which proceedings might be the subject of those considerations and therefore the notice under sub-s (4). It is unremarkable that a court might act on its own motion in such circumstances.
The appellant understandably makes no challenge to Murrell CJ's proposal that his and his co-accused's proceedings be considered under the sub-s (3) power or to the process leading to it. That process may well have involved considering the requirements of sub-s (3). However, sub-s (4) has nothing to say about such considerations or that decision.
The function involved in 68BA(4) was not one to consider which criminal proceedings might be a candidate for an order under sub-s (3). It did not involve any assessment or evaluation of that kind. Its sole criterion was the circumstance that an order under sub-s (3) was proposed. As soon as such a proposal was made the Court came under a duty to provide the notice and the invitation referred to in sub-s (4).
The evident purpose of s 68BA(4), as the Explanatory Statement confirms, was to provide procedural fairness to any person who might be affected if the order proposed to be made under sub-s (3) was made. It ensured that no accused person would have their mode of trial altered without first being given notice of that proposal and the opportunity to be heard with respect to it. The appellant accepts that procedural fairness is required if a court's procedure can be said to conform to the Kable principle.
No reasons can be said to have been required in connection with the giving of a notice under s 68BA(4). There was no decision made under s 68BA(4) in respect of which reasons would be required. The reason for the giving of the notice is apparent from the terms of sub-s (4) itself - it is that an order under s 68BA(3) was proposed.

Given the terms of s 34(4) and the enactment of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth) it could be argued that from 1 July 1990 the Crimes Act (NSW) became a statute of the Australian Capital Territory. The appellant's primary contention is that s 34(4) did not alter the source of authority for the continued operation of the Crimes Act (NSW). Sections 54 and 60 of that Act continued to be given direct force by the Commonwealth Parliament pursuant to s 122 of the Constitution.
The appellant relies on what was said in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[33] and Eastman v The Queen[34] to support this contention. Mr Eastman was charged with and convicted of an offence against s 18 of the Crimes Act (NSW). In Ex parte Eastman[35], Gummow and Hayne JJ said that the criminal liability in respect of which he was tried and convicted "owed its existence to the laws made by the [Commonwealth] Parliament". Similar statements were made in Eastman v The Queen[36]. The two decisions, the appellant says, identify the Commonwealth law as the source of the offence.
The offence for which Mr Eastman was convicted was committed in January 1989[37]. It was no doubt correct to say that at that time ss 54 and 60 had their direct source in Commonwealth law. At that time, the substantive provisions of the Self‑Government Act, including s 34, had not come into effect. And as earlier mentioned, s 34 did not operate with respect to the Crimes Act (NSW) until 1 July 1990.
More to the point was what their Honours had to say about what occurred after s 34 took effect. Earlier in the passage cited by the appellant[38], Gummow and Hayne JJ spoke of the offence provision being "transmuted into an enactment subject to amendment or repeal by the Legislative Assembly for the Australian Capital Territory" and said that "[t]his state of affairs was brought about by the operation of s 34 of [the Self‑Government Act]". Later in their reasons, they spoke of the effect of the identical phrase in s 34(2) of the Self‑Government Act[39], that a specified law "shall be taken to be an enactment, and may be amended or repealed accordingly". Their Honours said that the phrase was directed to the Assembly and had the substantive operation of conferring on an existing law applying in the Territory "the status of a law made by the Assembly" and that it thereby became an enactment.
Far from supporting the proposition for which the appellant contends, the reasons in Ex parte Eastman provide support for the view that the Crimes Act (NSW) became a statute of the Legislative Assembly of the Territory from 1 July 1990. Those reasons would also appear to provide an answer to the contrary of the appellant's assumption, made with respect to the balance of his argument, that because s 34(4) is a deeming provision a law does not become an enactment of the Assembly. It is merely capable of being amended or repealed.
It will be recalled that ss 54 and 60 had been the subject of amendment with respect to an element of the offences. The appellant, however, submits that for the character of a law to cease to operate as a law of the Commonwealth Parliament it was necessary that the Legislative Assembly had repealed it. If the Assembly merely amended a provision, s 34(4) continued to operate as the legislative force for the provision, albeit with an altered legal meaning picking up textual changes made. In substance, the alterations to ss 54 and 60 were only amendments.
The appellant submits that s 34(4) uses the words "amend" and "repeal" in their ordinary sense. This is said to provide a means of "drawing the line" between the continuing authority of the Commonwealth Parliament and the new separate authority of the Legislative Assembly. The appellant relies on what was said in Attorney‑General (WA) v Marquet[40], namely that the central meaning of "amend" is to alter the legal meaning of an Act or provision, short of entirely rescinding it; and the central meaning of "repeal" is to rescind the Act or provision in question.
The distinction which the appellant seeks to draw is not as clear as he suggests. In Marquet[41] itself, it was acknowledged that the words "amend" and "repeal" may be used in ways in which there appears to be some overlapping in their meanings. In the case to which reference was made in Marquet in that regard, Kartinyeri v The Commonwealth[42], it was said that to speak of a clear distinction between amendment and repeal is to assume a false dichotomy. Given that the ordinary usage of amendment of a statute means to alter its legal meaning, it may take the form of and include a repeal. By way of illustration, if a section is deleted it can be said that it is repealed whilst the statute itself has been amended.
The real difficulty in applying the ordinary meaning of "amend" and "repeal" to s 34(4) is that it does not involve a process of construction. Nothing in the text or context of s 34(4) suggests that it is intended to operate differently on laws which might generally be said to amend a law and those which repeal it. The words "and may be amended or repealed accordingly" appearing after "shall be taken to be an enactment" may be better understood to convey a single idea about the changes which may be made to a statute which the Legislative Assembly of the Territory is to treat as its own.
The position for which the appellant contends also produces a rather strange result. Taking the 2008 and 2011 amendments as examples, the appellant would say that ss 54 and 60 of the Crimes Act (ACT) remain sourced in Commonwealth law albeit that the text is changed. This appears to comprehend a law which is mixed or hybrid. The appellant does not explain how this state of affairs was to come about by force of s 122 of the Constitution.
In any event it is not necessary to determine the question as to whether the offences were Commonwealth or Territory laws on the basis of whether the Crimes Act (NSW) became an enactment of the Territory Legislative Assembly on 1 July 1990 or whether later amendments had that effect. It is not necessary because the first question is answered by the Status and Citation Act. It puts the matter beyond doubt.
The Status and Citation Act notably dealt with just one topic: the Crimes Act (NSW). Its long title stated that, in its application in the Territory, the Crimes Act (NSW) was to be treated as an Act passed by the Legislative Assembly and cited accordingly. Section 3(1) provided that the Crimes Act (NSW) shall be taken "for all purposes" to be a law made by the Assembly as if its provisions "had been re‑enacted in an Act passed by the Assembly". In its terms s 3(1) effected an implied repeal of the Crimes Act (NSW) and re-enactment of the law as a law of the Territory. Its intention is clear.
Contrary to the appellant's contention, the Status and Citation Act dealt with more than overcoming cumbersome citation conventions. So much is evident from its terms. The relevant extrinsic materials confirm that the Status and Citation Act "asserts the status of the Crimes Act as a law of the ACT by providing that the Crimes Act is to be treated as an Act passed by the Legislative Assembly"[43]. A note which later appeared in the Statute Law Amendment Act 2001 (No 2) (ACT) also recorded that "[t]he Crimes Act 1900 became an Act of the Legislative Assembly because of the [Status and Citation Act]"[44].
It may be concluded that at all times relevant to this appeal ss 54 and 60 of the Crimes Act (ACT) were laws of the Australian Capital Territory and that was the case even though s 34(4) had its source in Commonwealth law.

The appellant nevertheless contends that s 80 continues to apply. He submits that "any law of the Commonwealth" in s 80 includes a law made by a subordinate legislature of a territory. The contention denies that the term "law of the Commonwealth" refers to a law made by the Commonwealth Parliament itself under the legislative powers of the Commonwealth[45]. In Re Colina; Ex parte Torney[46], this was regarded as having been settled by a long line of authority.
The contention would also appear to have the rather startling consequence that a law passed by a territory legislature would prevail over inconsistent State laws, by reason of s 109 of the Constitution. Additionally, s 61 of the Constitution might be thought to impose an obligation on the part of the Commonwealth to execute and administer laws of a separate and independent body politic.
The appellant's contention is directly contrary to the decision of this Court in R v Bernasconi[47] so far as it concerns s 80. In that case the accused was tried without a jury of an offence which, by ordinance of the Legislative Council of the Territory of British New Guinea, was made a law applying to that Territory. Objection was taken to the mode of trial on account of s 80 of the Constitution. The first question, identified by Griffith CJ[48], was whether the offence for which Mr Bernasconi was convicted was an offence against a law of the Commonwealth. The ultimate question[49] was whether s 80 had any application to the local laws of a territory, whether enacted by the Commonwealth Parliament or by a subordinate legislature set up by it. The answer was that it did not[50].
It was also said in Bernasconi[51] that Ch III of the Constitution has no application to territories, a view which is now considered to be incorrect. This is not relevant for present purposes. So far as concerns s 80, Bernasconi has been understood to decide that, regardless of whether the power in s 122 of the Constitution "is exercised directly or through a subordinate legislature"[52], it is not restricted by the requirement in s 80 that trial be by way of jury.
For the appellant to have any prospect of success with respect to his secondary contention it would therefore be necessary for him to obtain leave to re‑open Bernasconi and have it overruled. The appellant may face some difficulty in doing so given that, as long ago as 1965 in Spratt v Hermes[53], the decision in Bernasconi was considered to be one of long standing which should not be disturbed. Consideration should in any event not be given to whether to re-visit Bernasconi given the prudential approach of this Court to providing no more than is necessary by way of answer to constitutional questions[54]. It is not necessary to do so because, regardless of the decision in Bernasconi, the appellant's contention cannot be reconciled with the proposition, for which there is good authority, that by granting territories self‑government the Commonwealth created new bodies politic the laws of which are distinct from the laws of the Commonwealth Parliament.
In Capital Duplicators Pty Ltd v Australian Capital Territory[55], Brennan, Deane and Toohey JJ[56] said that the Legislative Assembly of the 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". Their Honours observed[57] that the Commonwealth Parliament had no powers under the Self-Government Act of disallowance of a duty imposed by the Legislative Assembly and no power to repeal or amend the enactment.
The view expressed in Capital Duplicators was further explained in Svikart v Stewart[58]. There Mason CJ, Deane, Dawson and McHugh JJ said that a legislature created to confer self‑government upon a territory "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"[59]. More recently this explanation was applied in North Australian Aboriginal Justice Agency Ltd v Northern Territory[60], where Gageler J spoke of the exercise of "a distinct legislative power" by the Legislative Assembly of the Northern Territory[61] and Keane J referred to the law‑making power conferred by the equivalent to the Self‑Government Act as "an independent and unqualified law‑making power"[62].

The appeal should be dismissed.
GAGELER J. The appeal must be dismissed. The consequence is that the appellant's conviction for offences against the Crimes Act 1900 (ACT) following his trial on indictment in the Supreme Court of the Australian Capital Territory before Murrell CJ sitting without a jury must stand.
On the question whether the now repealed s 68BA of the Supreme Court Act 1933 (ACT) as inserted by the COVID-19 Emergency Response Act 2020 (ACT) infringed the limitation derived from Ch III of the Constitution commonly associated with Kable v Director of Public Prosecutions (NSW)[63], I agree with Kiefel CJ, Gleeson and Jagot JJ that it did not and have nothing to add to their Honours' reasoning in support of that answer.
On the question whether that provision, and the trial before Murrell CJ sitting without a jury, were inconsistent with the requirement of s 80 of the Constitution that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury", I agree with Kiefel CJ, Gleeson and Jagot JJ that they were not. My reasoning to that answer can be expressed without undue repetition of anything their Honours have written.
The acceptance in North Australian Aboriginal Legal Aid Service Inc v Bradley[64] of the proposition that courts created under s 122 of the Constitution can answer the description of "such other courts as [the Commonwealth Parliament] invests with federal jurisdiction" in s 71 of the Constitution, so as to be subject to the Kable limitation, is sufficient to demonstrate that the statement of Griffith CJ in R v Bernasconi[65] that "the power conferred by sec 122 is not restricted by the provisions of Chapter III of the Constitution, whether the power is exercised directly or through a subordinate legislature", no longer accords with the doctrine of the Court. Whether the outcome in Bernasconi can nevertheless continue to be accepted on the basis that the case can be taken to establish that "as a matter of construction, the words 'any law of the Commonwealth' in s 80 should be read as if they were followed by the words 'other than a law made under s 122'"[66] need not be addressed. That question would arise for consideration were we concerned with the trial on indictment of an offence created by a Commonwealth law enacted by the Commonwealth Parliament under s 122 of the Constitution. As will be seen, we are not.
The question of any inconsistency of s 68BA of the Supreme Court Act as applied to the trial in the Supreme Court of the Australian Capital Territory of offences against the Crimes Act 1900 (ACT) with the requirement of s 80 of the Constitution that is raised in the present case can and should be seen to turn on the correct contemporary answer to a somewhat narrower and logically antecedent question expressly left unaddressed by Griffith CJ in Bernasconi. That question, in the language then used by Griffith CJ[67], is "whether a law passed by the legislature of a territory under the authority of a law passed by the Parliament of the Commonwealth can properly be regarded as a law of the Commonwealth in any sense".
The appellant properly accepts that "law of the Commonwealth" in s 80 can have no different meaning from the meaning it has elsewhere in the Constitution. Throughout the Constitution, including in ss 61 and 109 as in s 80, the expression is used consistently to refer to legislation enacted by the Commonwealth Parliament[68]. On the theory that legislation once enacted operates as "the expression of the continuing will of the Legislature"[69], the expression encompasses delegated legislation the force and effect of which are dependent on legislation enacted by the Commonwealth Parliament.
In the specific context of s 80's reference to "any offence against any law of the Commonwealth", the expression "law of the Commonwealth" refers to the legislation enacted by the Commonwealth Parliament (and delegated Commonwealth legislation subordinate to legislation enacted by the Commonwealth Parliament) which has created, and which continues at the time of trial to sustain, criminal liability for the offence to be tried on indictment. The expression does not refer to the ultimate source of power to enact that legislation.
Capital Duplicators Pty Ltd v Australian Capital Territory[70] established that the power conferred on the Legislative Assembly by s 22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Self-Government Act") "to make laws for the peace, order and good government of the Territory", being a legislative power conferred in the exercise by the Commonwealth Parliament of its power under s 122 of the Constitution to "make laws for the government of any territory", is a legislative power distinct from and of the same "plenary" nature as that vested in the Commonwealth Parliament itself. A law enacted by the Legislative Assembly in the exercise of that power is not, in any sense, a law of the Commonwealth; it is a law of the Territory.
Section 34(4) of the Self-Government Act, in referring to a law which is "taken to be an enactment" being able to "be amended or repealed accordingly", confirms the capacity of the Legislative Assembly to amend or repeal the law in the exercise of the power conferred by s 22. Section 34(4) is not a separate source of legislative power. Rather, s 34(4) is an amplification of the power conferred by s 22.
There is no need for present purposes to canvass the view taken by Gummow and Hayne JJ in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[71] as to the status of a provision of the Crimes Act 1900 (NSW) as applied by s 6 of the Seat of Government Acceptance Act 1909 (Cth) and s 4 of the Seat of Government (Administration) Act 1910 (Cth) in its application to an offence found to have been committed on 10 January 1989. There is no need to examine the status of any provision of the Crimes Act 1900 (NSW) in application to offences committed before it was "taken to be an enactment" by force of s 34(4) of the Self-Government Act through the operation of s 12(2) of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth) taking effect from 1 July 1990. There is no reason to consider whether a change in the status of the Crimes Act 1900 (NSW) may have been brought about simply by the deeming force of s 34(4) of the Self-Government Act in combination with the plenary capacity of the Legislative Assembly to amend or repeal in the exercise of the legislative power conferred by s 22. And there is no need to trace the detailed history of the amendment of the provisions which bear on the offences for which the appellant was tried and convicted.
Enough for present purposes is to focus on the operation of the Crimes Legislation (Status and Citation) Act 1992 (ACT) ("the Status and Citation Act") as enacted by the Legislative Assembly under s 22 of the Self-Government Act with effect from 28 May 1992 and as continued in effect by the Legislative Assembly under s 22 of the Self-Government Act after the repeal of the Status and Citation Act by s 5 of the Law Reform (Miscellaneous Provisions) Act 1999 (ACT).
The Status and Citation Act, as was indicated by both its short title and its long title, was not concerned to effect a formal change in the citation of the Crimes Act 1900 (NSW) as then taken to be an enactment by force of s 34(4) of the Self-Government Act. The purpose of the Status and Citation Act was to effect a substantive change in the ongoing status of that enactment.
By defining "applied State Act" to mean "the Crimes Act, 1900 of the State of New South Wales in its application in the Territory as amended and in force immediately before the commencement of this Act", s 2 of the Status and Citation Act picked up the text of the Crimes Act 1900 (NSW) in the form in which that text, as then amended, was at that time taken to be an enactment by force of s 34(4) of the Self-Government Act. By providing that "[t]he applied State 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", s 3(1) of the Status and Citation Act then operated to give the totality of that text the status of a law enacted by the Legislative Assembly with effect from 28 May 1992. The expression "as if" was evidently employed in the drafting of s 3(1) as "a convenient device for reducing the verbiage of an enactment"[72]. Although the expression invoked a statutory fiction[73], its fictional effect should not be taken further than is necessary to achieve its legislative purpose[74]. The purpose was to achieve the substantive legal effect of re-enactment of the text identified in s 2 as a law of the Legislative Assembly without repetition of that text. It was the text identified in s 2 as re-enacted by s 3(1) as a law made by the Legislative Assembly which s 4 thereafter permitted to be cited as the "Crimes Act 1900" (ACT).
Through the exercise of the plenary legislative power conferred on it by s 22 of the Self-Government Act, the Legislative Assembly brought about what was in legal substance, and within the terminology of s 34(4) of the Self-Government Act, a "repeal" followed immediately by a re-enactment.
The result is that, with effect from at least 28 May 1992, the Crimes Act 1900 (ACT) and each of its provisions has operated substantively as a law of the Legislative Assembly, enacted in the exercise of the legislative power conferred by s 22 of the Self-Government Act, and not as a law of the Commonwealth.
GORDON AND STEWARD JJ. In February 2020, the appellant was committed to stand trial in the Supreme Court of the Australian Capital Territory ("the ACT") for the offences of sexual intercourse without consent (multiple counts) and an act of indecency without consent, contrary to ss 54 and 60 of the Crimes Act 1900 (ACT). The Crown filed a joint indictment against four co‑accused, all charged with offences alleged to have been committed on 3 November 2019 against the same complainant.
Under s 68A of the Supreme Court Act 1933 (ACT), criminal proceedings must be tried by a jury, except as otherwise provided by Pt 7 of that Act. Section 68B(1), in Pt 7, permitted a person facing criminal prosecution for an offence, other than an "excluded offence", to elect to be tried by judge alone. Sections 54 and 60 of the Crimes Act 1900 (ACT) were both excluded offences[75].
On 16 March 2020, the Minister for Health of the ACT declared a public health emergency under the Public Health Act 1997 (ACT) in response to the health risks posed by the COVID-19 pandemic. On 7 April 2020, the Supreme Court of the ACT issued a practice direction that jury trials would not proceed until further notice. The following day, the COVID-19 Emergency Response Act 2020 (ACT) commenced. It amended s 68B of the Supreme Court Act to permit an accused to elect for a judge alone trial for an excluded offence during the "COVID‑19 emergency period". And, relevantly for this appeal, s 68BA was introduced to empower the Supreme Court to order a trial by judge alone during the "COVID-19 emergency period", with no requirement of election or consent by the accused[76].
Section 68BA of the Supreme Court Act, headed "Trial by judge alone in criminal proceedings - COVID-19 emergency period", relevantly provided:

The Supreme Court of the ACT is a Ch III court that is capable of exercising the judicial power of the Commonwealth in the exercise of jurisdiction conferred on it by laws made by the Commonwealth Parliament[83]. It follows that the Kable principle applies to the ACT Supreme Court and to the ACT Legislative Assembly[84]. Accordingly, the ACT Legislative Assembly cannot, consistently with Ch III of the Constitution, confer on the ACT Supreme Court a function or power that is incompatible with, or substantially impairs, its institutional integrity[85].
The appellant accepted that the power to order a judge alone trial under s 68BA(3) of the Supreme Court Act was a power that can, and indeed must, be exercised judicially. The appellant accepted that the criteria in s 68BA(3)(a) and (b) were susceptible of judicial application[86]. The appellant also accepted that the power in s 68BA(3) attracted the usual incidents of the judicial process, including the essential features of procedural fairness, an open and public inquiry, and the giving of reasons[87]. The appellant did not challenge the power in s 68BA(3) under which the order for a judge alone trial was made. Rather, the appellant's argument for invalidity turned on s 68BA(4) - the obligation to give notice of a proposed order.
The appellant contended that s 68BA(4) was an "antecedent gatekeeping function" - calling for a "screening" and "ex parte" decision - that conferred on the Supreme Court an arbitrary power to select an accused person, from a relevantly identical class of accused persons, to be exposed to the risk of losing a jury trial. The appellant submitted that s 68BA(4) was arbitrary - requiring unequal treatment of accused persons - because there was no duty to give all accused persons a notice and there were no criteria for the Court to decide which accused persons to give a notice. The appellant argued that the process for selection under s 68BA(4) was inscrutable, because there was no requirement to give reasons and the order was made on the Court's own motion.
In a challenge to the validity of legislation, the correct starting point is the legal and practical operation of the impugned legislation, discerned as a matter of statutory construction[88]. Ground 1 can be dealt with briefly. That is because, once s 68BA of the Supreme Court Act is properly construed, the appellant's argument falls away. Section 68BA contained a single operative power for ordering a trial by judge alone. There was no separate "gatekeeping" or "screening" power.
Sub-sections (1) and (2) of s 68BA set out the proceedings to which the power applied. It applied to all criminal proceedings against an accused person for an offence against a Territory law if the trial was to be conducted, in whole or in part, during the COVID‑19 emergency period.
Sub-section (3) contained the power. There was no duty for the Supreme Court to consider exercising the power in s 68BA(3) in all cases. It conferred a discretion on the Court, to be exercised judicially, to order a proceeding to be tried by judge alone if satisfied of the criteria in sub-s (3)(a) and (b). The order could only be made if the Court was satisfied that it would ensure the orderly and expeditious discharge of the business of the Court and that it was in the interests of justice. Section 68BA was not simply a case management power - it had significant consequences for the conduct of the trial, for the accused and for the community. In Newell v The King[89], in a passage quoted by a unanimous High Court in Cheatle v The Queen[90], Latham CJ described trial by jury at common law as "one of the fundamental rights of citizenship and not a mere matter of procedure". Trial by jury has also been described as "the fundamental institution in our traditional system of administering criminal justice"[91] and as fulfilling an important democratic function[92]. While s 68BA evinces a sufficiently clear intention to, and does, abrogate the common law right to a jury trial[93], an order under s 68BA could not be lightly made.
Sub-section (4) made express what would in any event be implied for such a power[94]. When the Court was proposing to exercise the power in s 68BA(3), it was required to give notice to the parties of the proposed order. Section 68BA(4) was a procedural fairness provision, giving some minimum content to the obligation by providing for seven days for the parties to respond. In that respect, the giving of notice and hearing of submissions, whether express under s 68BA(4) or implied (as it would have been in the absence of s 68BA(4)), were indeed necessary for the power in s 68BA(3) to conform with the Kable principle[95].
The duty to give notice under s 68BA(4) was therefore neither arbitrary nor devoid of criteria, nor properly construed as a power. It was a duty that needed to be complied with before the Court made an order under s 68BA(3). It was a duty that arose when the Court considered that the proceeding was a potential candidate for an order under s 68BA(3) - that is, when the Court thought it might be satisfied of the criteria in s 68BA(3) and was considering exercising the discretion to make the order.
The appellant was therefore incorrect in contending that, in the administration of the law, s 68BA(4) came before s 68BA(3). The text of s 68BA(4) was clear: the notice must be given "[b]efore making an order under subsection (3)". But it is equally clear that the Court would be, when notice was given, in the process of considering an order under sub-s (3) - the notice that was given was of the "proposed order".
The appellant accepted that, if s 68BA(4) had been drafted such that giving of a notice was conditioned upon the Court's satisfaction that the case may be a candidate for the exercise of the power under s 68BA(3), given requirements as to social distancing and the like, that would overcome the problem. But that is the result of a proper construction of s 68BA and a proper understanding of the relationship between sub-ss (3) and (4).
Finally, although the appellant was the only accused person to be tried by judge alone, without consent, during the operation of s 68BA, there was nothing to suggest that "like cases" had been treated under s 68BA differently for arbitrary reasons[96]. In her reasons for making the s 68BA order, the trial judge emphasised the number of people who would need to be accommodated in the courtroom for a trial of four co-accused (including the co‑accused, ten legal representatives and 12 jurors, as well as the judge and courtroom staff), stating that "[t]he Court's limited capacity to run jury trials means that the orderly and expeditious discharge of the business of the Court requires the Court to focus on those trials that are more likely to run to a conclusion, ie short trials involving only one (or, at most, two) accused, rather than devoting expensive resources to trials that are likely to be aborted"[97].
The appellant's Kable ground of appeal must be dismissed.

The appellant argued that the offences for which he was tried and convicted - ss 54 and 60 of the Crimes Act 1900 (ACT) - were "laws of the Commonwealth" within the meaning of s 80 of the Constitution, thereby enlivening its command that his trial on indictment be by jury.
In R v Bernasconi[98], decided over 100 years ago, this Court held that the power of the Commonwealth Parliament to make laws for the government of a territory under s 122 of the Constitution, whether the power is exercised directly or through a subordinate legislature, is not restricted by the requirement in s 80. In that case, Mr Bernasconi, a man who was tried without a jury in the Territory of Papua, argued that the offence for which he was convicted was "a law of the Commonwealth" because the Papua Act 1905 (Cth), passed to give effect to the Commonwealth's acceptance of the Territory, had declared that all laws in force in the Territory would continue in force[99]. As Griffith CJ observed, an "interesting question" was also raised, being whether a law passed by the legislature of a territory under the authority of a law passed by the Parliament of the Commonwealth could properly be regarded as a law of the Commonwealth in any sense[100]. Isaacs J was the only judge to state his opinion on the status of the law in question, holding that the offence was a law of the Commonwealth "because its present force subsists by virtue of the declared will of the Commonwealth Parliament" but that in any event s 80 did not apply to Commonwealth laws passed under s 122[101]. Griffith CJ (with whom Gavan Duffy and Rich JJ agreed) did not construe the meaning of "law of the Commonwealth", stating instead that "there [was] a larger and more important question to be answered before these questions can become material, namely, whether s 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"[102]. The "interesting question" about the meaning of "law of the Commonwealth" and whether it would include laws passed by territory legislatures was not decided in Bernasconi.
The decision of all members of the Court in Bernasconi was based on a now discredited view that Ch III of the Constitution "has no application to territories"[103]. Bernasconi has been criticised in many cases since[104], and its reasoning about the relationship between Ch III and s 122 of the Constitution has been heavily qualified[105], but its holding with respect to s 80 of the Constitution has never been overruled.
The appellant accepted that, if ground 2 of the appeal were to be allowed, the Court would need to distinguish, or to reopen and overrule, Bernasconi. The appellant argued that Bernasconi was distinguishable on the basis that it related to "a territory placed by the Queen under the authority of and accepted by the Commonwealth", not one "surrendered by any State" under s 111 of the Constitution or "acquired by the Commonwealth" under s 125 of the Constitution. If it could not be distinguished, the appellant submitted that Bernasconi should be reconsidered because its conclusion was profoundly affected by the view that s 122 stood apart from the remainder of the Constitution: an interpretive approach to s 122 that is no longer accepted by this Court.
However, given that the meaning of "law of the Commonwealth" in s 80 of the Constitution was not decided in Bernasconi, there was a threshold hurdle for the appellant to surmount before it would become necessary for this Court to consider distinguishing or reopening Bernasconi. That hurdle takes as a premise, contrary to Bernasconi, that s 80 is capable of applying to laws made under s 122. The threshold question is whether the offences for which the appellant was tried and convicted - ss 54 and 60 of the Crimes Act 1900 (ACT) - fell within the meaning of "offence[s] against any law of the Commonwealth" in s 80 of the Constitution. As will be explained, they did not. It is unnecessary for this Court to consider distinguishing or reopening Bernasconi.

From 1911 until 1989, the ACT was administered by the Commonwealth directly under ss 61 and 122 of the Constitution. During that period, the ACT was not a separate body politic and did not have a separate legislative power.
The transition of the ACT to self‑government was achieved in steps[113]. In 1989, the Self-Government Act established the Australian Capital Territory as a "body politic under the Crown"[114]. The Legislative Assembly, established under s 8, was given the power under s 22, subject to Pt IV, to make laws for the peace, order and good government of the Territory[115]. There were certain matters excluded from the power to make laws, for example with respect to the coining of money[116]. Three years later, on 1 July 1992, responsibility for the ACT courts was transferred from the Commonwealth to the ACT[117]. On 1 July 1994, the transition to self‑government was arguably completed with the establishment of the independent ACT Government Service[118]. By no later than 1 July 1994[119], the ACT was an independent body politic.
Although the Court in Capital Duplicators split on the question of whether the ACT Legislative Assembly could levy an excise duty under s 22 of the Self‑Government Act (in light of s 90 of the Constitution), all members of the Court agreed that an enactment of the Legislative Assembly under s 22 could not be characterised as an exercise of the legislative power of the Commonwealth Parliament[120]. All members of the Court agreed that, by passing the Self‑Government Act under s 122 of the Constitution, the Commonwealth Parliament had established a Legislative Assembly with a "new" and separate plenary legislative power[121]. As Brennan, Deane and Toohey JJ (with whom Gaudron J agreed) observed, enactments of the Legislative Assembly "do not lack 'independent and unqualified authority' ... [T]he Parliament did not intend the Legislative Assembly to exercise its powers 'in any sense [as] an agent or delegate ...' ... The Legislative Assembly of the Australian Capital Territory has been erected to exercise not the Parliament's powers but its own"[122].

The question is whether the offences in ss 54 and 60 of the Crimes Act 1900 (ACT) were properly characterised as an exercise of Commonwealth legislative power, or of the separate legislative power of the Legislative Assembly, at the relevant time. That requires a historical analysis of ss 54 and 60 of the Crimes Act and the manner of its application to the ACT.
The Crimes Act 1900 (NSW) was enacted in New South Wales in 1900. It had offences for rape and indecent assault in ss 62-78.
The Seat of Government Acceptance Act 1909 (Cth) allowed for the Governor-General to declare by proclamation that the Territory surrendered by New South Wales for the Seat of Government of the Commonwealth (described in a Schedule to the Act) was accepted by the Commonwealth[123]. Section 6 provided that "[s]ubject 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".
Section 4 of the Seat of Government (Administration) Act 1910 (Cth) provided that, where any law of the State of New South Wales continued in force by virtue of s 6 of the Seat of Government Acceptance Act, "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".
In 1985, the Governor-General made an Ordinance under the Seat of Government (Administration) Act, amending the Crimes Act 1900 (NSW) in its application to the Territory[124]. Section 4 of the Ordinance inserted a new Pt IIIA, which included s 92D (sexual intercourse without consent) and s 92J (act of indecency without consent). Section 7 repealed, among other things, the sexual offences in ss 62-81 of the Crimes Act 1900 (NSW). At that time, the offences in the Crimes Act 1900 (NSW) were given force in the Territory by Commonwealth law picking up and applying the text of the State law, as modified by the Commonwealth Ordinance[125].
As explained, the ACT Legislative Assembly - and its separate legislative power - were established in 1989. "Enactment" was defined under the Self‑Government Act as a law made by the Legislative Assembly under the Act, or a law, or part of a law, that was an enactment because of s 34[126]. Section 34 of the Self‑Government Act was headed "Certain laws converted into enactments". Section 34(4) provided that:

At the time of enactment of the Self-Government Act, s 34(4) did not apply to a law specified in Sch 3 to that Act, which listed certain "Acts of the Parliament of New South Wales in force in the Territory", including the Crimes Act 1900 (NSW)[127]. On 1 July 1990, the Crimes Act 1900 (NSW) was among a number of laws removed from Sch 3 by s 12 of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth). Section 34(4) of the Self-Government Act was then capable of applying to the Crimes Act 1900 (NSW) as it applied in the Territory. Section 12 of the ACT Self-Government (Consequential Provisions) Act also provided that those laws "shall be taken to be enactments and may be amended or repealed accordingly".
The Attorney-General for the ACT, and the Attorney-General of the Commonwealth intervening, submitted that s 34(4) of the Self-Government Act in its terms conferred on the Crimes Act 1900 (NSW), including for the purposes of the Constitution, the status of a law of the ACT Legislative Assembly. That is, the Attorneys‑General submitted that s 34(4) did not simply deem some laws previously in force in the Territory to be enactments of the Legislative Assembly and to be capable of amendment or repeal by the Legislative Assembly but that s 34(4) had the substantive effect that they became laws of the Legislative Assembly. They sought to draw support for their submission from observations of Gummow and Hayne JJ in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[128]. That submission should be rejected.
As this Court's foundational decision in Australian Communist Party v The Commonwealth[129] made clear, no law can deem itself to be valid as an exercise of power under the Constitution. Similarly, a Commonwealth Act cannot conclusively deem a law not to be a Commonwealth Act. That is a question that is ultimately for this Court to determine. And, while the Commonwealth Parliament is superior to the ACT Legislative Assembly (and, indeed, could restrict or abolish its powers), the Commonwealth Parliament is not able to itself exercise the separate and distinct legislative power of the Assembly.
Section 34(4) of the Self-Government Act in its terms provided that the Acts to which it applied were to be taken, by way of a fiction, to be Acts made by the Legislative Assembly under s 22 of the Self-Government Act when they were not, by definition, such Acts. Section 34(4) was an exercise of Commonwealth legislative power under s 122 of the Constitution. It was a law of the Commonwealth, and the Acts which s 34(4) picked up were applied to the Territory as laws of the Commonwealth. But that was not where s 34(4) stopped.
By s 34(4) of the Self-Government Act, the Commonwealth Parliament evinced an intention to hand over the lawful authority for those enactments to the ACT Legislative Assembly - it provided that those enactments could be amended or repealed by the Legislative Assembly. Put in different terms, while, for the reasons explained, s 34(4) was not constitutionally effective in itself to make those enactments laws of the Territory, if the Legislative Assembly then sufficiently adopted the laws, such that the fiction no longer truly applied, the laws became laws of the Territory. That is, as the appellant accepted, s 34(4) contained the potential for a law to be patriated to the Territory by the Territory, by an amendment or a repeal and re-enactment of the law by the Legislative Assembly.
The next issue in this appeal, however, was that the appellant contended that such an amendment or repeal and re-enactment of the Crimes Act 1900 (NSW) (as it applied to the Territory by Commonwealth law) had not occurred. The appellant did not challenge the decisions of this Court that held that the ACT Legislative Assembly is neither a delegate nor an agent of the Commonwealth and that it has its own distinct legislative power[130]. Rather, the appellant contended that the Legislative Assembly had not exercised that power to adopt the Crimes Act 1900 (NSW), as applied in the Territory, as a law of the ACT. That contention should be rejected.
The Crimes Act 1900 (NSW), as applied to the Territory by Commonwealth law, was adopted by the Legislative Assembly two years later, on 28 May 1992, when the Legislative Assembly itself took the step of enacting the Crimes Legislation (Status and Citation) Act 1992 (ACT) ("the Status and Citation Act"). Section 3(1) of that Act provided that the Crimes Act 1900 (NSW), in its application in the Territory, "shall be taken to be, for all purposes, a law made by the Legislative Assembly as if [its] provisions ... had been re-enacted in an Act passed by the Assembly". Section 4 provided that the Act may be cited as the Crimes Act 1900 (ACT).
The appellant submitted that the Status and Citation Act was yet another "fiction" and that it was an enactment "in vain" because it did not amend or repeal and re‑enact the Crimes Act 1900 (NSW) as it applied in the Territory. However, even if the Status and Citation Act erected a "fiction", it was a statutory fiction of the Legislative Assembly which provided in terms that the Crimes Act 1900 was to be taken to be, for all purposes, a law made by the Assembly as if it had been "re‑enacted". The Legislative Assembly intended to alter the status of the Crimes Act 1900. As the long title to the Status and Citation Act stated, it was an Act 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". The attempted distinction between such a law and a repeal and re‑enactment would be a triumph of form over substance[131]. It should be rejected.
In 1999, the Status and Citation Act was repealed by the Law Reform (Miscellaneous Provisions) Act 1999 (ACT), but the repealing Act declared that the Status and Citation Act was an Act to which s 42 of the Interpretation Act 1967 (ACT) applied[132]. Section 42 of the Interpretation Act then provided that the repeal of an Act did not end the declaratory or validating effect of the Act[133].
For those reasons, the Crimes Act 1900 became a law of the ACT Legislative Assembly no later than 1992. As a result, the appellant's arguments in relation to subsequent amendments to ss 54 and 60 of the Crimes Act 1900 (ACT) which were passed by the ACT Legislative Assembly, although unnecessary to the rejection of the appellant's arguments, may be addressed briefly.
First, ss 92D and 92J of the Crimes Act 1900 (ACT) were renumbered to, respectively, ss 54 and 60 by s 43 of the Crimes Legislation Amendment Act 2001 (ACT). Second, each of ss 54 and 60 was amended to clarify the fault element necessary to prove the offence. In 2008, the words in s 54(1) and (2) "who knows that that other person does not consent, or who is reckless as to whether that other person consents" were omitted and substituted by "who is reckless as to whether that other person consents"[134]. A new s 54(3) was inserted at the same time which provided that "[f]or this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness". In 2011, the element of recklessness in s 60 was amended in the same manner as s 54 had been in 2008[135]. Third, also in 2011, the penalties for a contravention of s 60 were increased[136]. Finally, in 2013 the Legislative Assembly amended the definition of sexual intercourse in s 50 of the Crimes Act, expanding the physical element of the offence of sexual intercourse without consent under s 54[137].
The appellant's contention was that the ACT Legislative Assembly would not be taken to have "adopted" the laws unless it made a sufficiently substantive change to the laws, and that adoption needed to be in the form of an amendment or re‑enactment. That is, the appellant contended that none of the amendments to ss 54 and 60 were "substantive" and that only substantive amendments would have the effect of transmuting[138] the offences into offences against a law of the Territory. In particular, the appellant submitted that physical and fault elements of the offences remained the same and that there was "no enlargement or contraction of the nature of the offence". Those submissions should be rejected.
The appellant's submission was incorrect because the 2013 amendments to the definition of sexual intercourse expanded the physical element of the offence in s 54. But, in any event, just as in Kartinyeri v The Commonwealth, where Gummow and Hayne JJ observed that comparing amendment and partial repeal is a "false dichotomy" as both "alter [the statute's] legal meaning"[139], so too did the appellant's argument based on the notion of "substantive" amendment improperly rely on an illusory distinction. Each time it amended the provisions, the ACT Legislative Assembly expressed its plenary power under s 22 of the Self‑Government Act. With respect to the offences for which the appellant was convicted, it expressed that plenary power on numerous occasions[140]. The argument that the offences derive their immediate force from the Commonwealth Parliament cannot be sustained.

The appellant put forward an alternative contention that would only arise if the Court were to conclude that the legislative source of ss 54 and 60 of the Crimes Act 1900 had shifted from s 34(4) of the Self‑Government Act to an exercise of legislative authority by the ACT Legislative Assembly under s 22 of the Self‑Government Act.
The alternative contention was that a law enacted by the ACT Legislative Assembly, exercising its legislative power derived from a law made by the Commonwealth Parliament under s 122 of the Constitution, is a "law of the Commonwealth" for the purposes of s 80 of the Constitution. The appellant argued that this Court should take that step because such a law is enacted indirectly under the ultimate authority of the Commonwealth Parliament and "s 122 entails an ineradicable Commonwealth character for laws for the government of a Territory".
That argument must be rejected because it is contrary to Capital Duplicators[141]. As explained, the Court there recognised that, by granting the ACT self-government, the Commonwealth Parliament created a separate and distinct legislative power[142]. While the exercise of that distinct legislative power by the Legislative Assembly is derived from the Commonwealth Parliament, it "is not an exercise of the [Commonwealth] Parliament's legislative power"[143]. The ACT Legislative Assembly exercises its own power - not a power under delegation or agency from the Commonwealth Parliament. That is, laws made by the ACT Legislative Assembly are not laws made by, or under delegation of, the Commonwealth Parliament. The term "law of the Commonwealth" refers to laws made under the legislative powers of the Commonwealth[144]. Necessarily, the laws passed by the Legislative Assembly are therefore "laws of the Territory", not "laws of the Commonwealth".
The appellant's argument, if accepted, would create anomalies elsewhere in the Constitution where the phrase "laws of the Commonwealth" is used, including in ss 61, 109 and 120. The phrase "laws of the Commonwealth" should as far as possible have a consistent meaning in the Constitution. While it is clear that a law enacted by the Commonwealth Parliament under s 122 is a "law of the Commonwealth" within the meaning of s 109[145], the appellant's construction would mean that a law enacted by an independent Territory legislature would also be a "law of the Commonwealth" and would prevail over a State law where inconsistency arose.

Mr Vunilagi was tried on indictment for serious offences against laws that were initially laws of the Commonwealth Parliament but which had been adopted by the Legislative Assembly of the Australian Capital Territory. He was tried and convicted by a process involving a judge sitting without a jury. Mr Vunilagi brought a constitutional challenge to the law of the Legislative Assembly of the Australian Capital Territory that permitted this process, s 68BA of the Supreme Court Act 1933 (ACT). Mr Vunilagi's challenge failed in the Court of Appeal of the Supreme Court of the Australian Capital Territory[146]. Mr Vunilagi appealed to this Court on two grounds.
Mr Vunilagi's first ground concerned the mechanics by which s 68BA of the Supreme Court Act permitted the selection of his case as one for a judge alone trial. He submitted that s 68BA provided no discernible criteria for the Supreme Court of the Australian Capital Territory to determine whether an order for a judge alone trial would be proposed to an accused person. The absence of discernible criteria was said to have impaired the institutional integrity of the Supreme Court of the Australian Capital Territory. The premise of that submission cannot be accepted. The Legislative Assembly of the Australian Capital Territory must be taken to have presupposed that criminal cases would be considered for proposed judge alone trials whether individually or by reference to a general policy. That exercise could not be performed by the Supreme Court according to caprice or whim. It could only be performed by reference to case management considerations, albeit a category of considerations of very wide denotation.
Mr Vunilagi's second ground concerned s 80 of the Constitution. Section 80 of the Constitution falls within Ch III, "The Judicature". Section 80 relevantly provides that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury". Mr Vunilagi submitted that he was tried for offences which were against laws of the Commonwealth contrary to s 80 of the Constitution with the effect that s 68BA of the Supreme Court Act was invalid because it authorised trials without a jury, and that consequently his convictions must be quashed.
The ultimate source of power for the offences for which Mr Vunilagi was tried was s 122 of the Constitution. The immediate issue for Mr Vunilagi's second ground of appeal, as a matter of logic and authority, is therefore whether the power in s 122 of the Constitution is immunised from any of the requirements of Ch III of the Constitution by a negative implication in Ch III of the Constitution. If the power in s 122 is immunised in this way, then - on any view - the constraints of s 80 would not apply to the offences for which Mr Vunilagi was tried. The answer is that s 122 is not so immunised. The reasoning to the contrary by this Court in R v Bernasconi[147] should be re-opened and held to be manifestly wrong as a matter of principle and contrary to a substantial stream of authority and precedent in this Court. The result of that case cannot be re-explained on the basis that the same negative implication might somehow be discerned only within s 80 of the Constitution.
The next issue that arises from Mr Vunilagi's second ground of appeal is whether, as a matter of interpretation and application of s 80 of the Constitution, the offences for which he was tried on indictment were offences against laws of the Commonwealth. The answer is that they were not. The established approach to the interpretation of s 80 of the Constitution, the need to apply a consistent meaning of "laws of the Commonwealth" throughout the Constitution, and the precedent of this Court, all deny that a law of the Legislative Assembly of a self-governing Territory is a law of the Commonwealth. The offences for which Mr Vunilagi was tried were against laws of the Legislative Assembly of the Australian Capital Territory. The appeal should be dismissed.

Ch III of the Constitution contains an implication that preserves the institutional integrity of a court that exercises federal jurisdiction. That implication is not limited to State courts. It applies also to courts of the Territories[153].
Mr Vunilagi's first ground of appeal asserted that s 68BA of the Supreme Court Act was invalid because it impaired the institutional integrity of the Supreme Court of the Australian Capital Territory. Mr Vunilagi properly accepted that the institutional integrity of a court is not impaired by open-textured criteria in a legislative provision, about which more concrete rules would emerge only after judicial interpretation and application[154]. But he submitted that s 68BA(4) provided no discernible criteria at all for a court to apply in determining whether an order would be "proposed". In this respect, he submitted that s 68BA(4) was uncontrolled by the criteria in s 68BA(3). In effect, Mr Vunilagi's submission was that whether or not there was any duty upon the Supreme Court to consider the possibility of a judge alone trial, s 68BA(4) provided no criteria by which the Court could engage in such consideration and no constraints upon the approach to be taken to determine which cases would be considered for a judge alone trial.
If Mr Vunilagi were correct, there would be serious constitutional questions about s 68BA. It would mean that s 68BA would enable the Supreme Court to adopt a policy which would permit the Court to consider whether to propose an order for a judge alone trial if an indictment were filed on a Monday or a Tuesday, but not if an indictment were filed on a Wednesday, a Thursday or a Friday. It would mean that s 68BA, enacted to ensure that the trials of serious criminal matters were not delayed, could purport to permit judge alone trials to be considered only for the least serious offences. As the point was eloquently expressed in Mr Vunilagi's written submissions: "[t]he constitutional flaw 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".
Mr Vunilagi's submission should not be accepted. Section 68BA(4) is based on a presupposition that the Supreme Court will consider in each case whether to propose to order a judge alone trial. The requirement in s 68BA(4) of written notice when an order is "proposed" is plain evidence of this presupposition. The existence of a presupposition, not expressly provided in a provision, is not unusual despite the possibility of misapprehension that arises: "the very nature and essence of human language ... renders a total exclusion of every imaginable misapprehension, in most cases, absolutely impossible"[155].
Legislative presuppositions and assumptions, like those upon which constitutional provisions are based[156], can be of two types. One type is an assumption about the way in which the meaning of the legislation will be applied. Courts interpret the meaning of legislative words and apply that meaning to facts and circumstances. In applying that meaning, a court is not bound by any assumption about the application of the legislation, however widely held those assumptions might have been. The other type is a presupposition, based upon the purpose of a provision, concerning the essential meaning of the provision. Such presuppositions affect the meaning of express terms and can give rise to separate implied terms. But whatever the assumption or presupposition on which s 68BA was based, s 68BA was not invalid.
If the assumption underlying s 68BA(4) only concerned the expected application of that provision, so that in deciding whether to propose an order it was expected that the Supreme Court would consider each case, then there would likely be no implied duty upon the Court to consider whether to propose a judge alone trial. Section 68BA would, prima facie, permit the Supreme Court to adopt any approach, however irrational and however unjust, to whether such consideration would be undertaken. But if s 68BA could, prima facie, be applied in a manner which permitted such irrational and absurd applications, and if such applications meant that the institutional integrity of the Court was impaired, then s 68BA would be disapplied to that extent by ss 120(2)(a) and 120(3) of the Legislation Act 2001 (ACT).
Alternatively, if s 68BA(4) contained a presupposition that it would be necessary for the Court in each case to consider whether to propose a judge alone trial, then s 68BA(4) would be interpreted as including an implied duty requiring the Supreme Court to consider whether to propose a judge alone trial in each case either by individual consideration or by reference to a general policy. That required approach would not be unconstrained. Just as the exercise of a power is subject to the usual implication that the power be exercised in a reasonable manner[157], so too the performance of a duty is subject to the usual implication that it be performed in a reasonable manner[158]. The bounds of reasonableness in s 68BA(4) would be informed by reference to case management considerations. This is because the Court would be aware that the ultimate, and subsequent, decision as to whether a trial by judge alone is ordered must be made by reference to the case management considerations in s 68BA(3). As senior counsel for Mr Vunilagi properly accepted, s 68BA(3) is "a complete programmatic description" of those case management considerations. It would make no sense for a notice to be given of a proposed order unless the Court administration considered that such an order would be possible in the subsequent decision to be taken under s 68BA(3). In effect, therefore, s 68BA(4) required that the Court take into account the case management considerations in s 68BA(3) to decide whether a trial by judge alone might be ordered. That approach is wholly compatible with the institutional integrity of the Supreme Court. The first ground of appeal should be dismissed.

Mr Vunilagi's second ground of appeal was that the Court of Appeal of the Supreme Court of the Australian Capital Territory should have held that s 68BA of the Supreme Court Act was invalid because it was inconsistent with s 80 of the Constitution, a provision contained within Ch III, "The Judicature".
The sexual assault and indecency offences for which Mr Vunilagi was tried and convicted were against ss 54 and 60 of the Crimes Act. As explained later in these reasons, predecessor rape and indecency offences were first given force in the Australian Capital Territory from 1911 by laws of the Commonwealth Parliament made under s 122 of the Constitution and, later, by laws of the Legislative Assembly of the Australian Capital Territory which, themselves, were supported by laws of the Commonwealth Parliament under s 122 of the Constitution. This ground of appeal requires two issues to be addressed.
First, are laws passed under s 122 of the Constitution immunised from the constraints of s 80 of the Constitution? This raises the question of whether the reasoning of this Court in R v Bernasconi[159] should continue to be accepted or whether R v Bernasconi should be overruled or re-explained. If, as this Court held in R v Bernasconi, laws passed under s 122 of the Constitution are not subject to Ch III of the Constitution, then a law passed under the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Self-Government Act"), which was itself passed under s 122 of the Constitution, could not be subject to Ch III of the Constitution and therefore would not be subject to the constraints of s 80 of the Constitution.
Secondly, if s 122 is not immunised from the requirements of s 80 then, as a matter of interpretation of s 80, is a law that is passed by the Legislative Assembly of the Australian Capital Territory under the Self-Government Act a "law of the Commonwealth" so that a trial on indictment of offences against ss 54 and 60 of the Crimes Act is required to be by jury and s 68BA of the Supreme Court Act is inconsistent in this respect with s 80 of the Constitution?

In R v Bernasconi[160], Griffith CJ (with whom Gavan Duffy and Rich JJ agreed) said that the "larger and more important question to be answered", before addressing the second question of the interpretation of s 80 of the Constitution, was "whether [s] 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". Griffith CJ therefore addressed the larger and more important first question before the second question. His answer to the first question meant that he did not need to address the second question.
As a matter of logic and principle, that approach is plainly correct. It would be an exercise in backwards logic to suggest that the second question, concerning the interpretation of the meaning of the words of s 80, must be decided prior to the first question of whether s 80 is applicable at all. To engage in that exercise might lead to perceptions, however unjustified, that the Court contrived an answer to the second question in order to avoid answering the logically anterior question. The Solicitor-General of the Commonwealth submitted, however, that this Court should avoid confronting the first question by applying its "usual prudential approach in constitutional cases". That usual prudential approach was said to require this very approach of starting with the second question and, if that second question were dispositive of the appeal, avoiding any answer to the first question.
A prudential approach has sometimes been taken by this Court to resolve a case by reference to non-constitutional issues, avoiding any decision on constitutional issues. Hence, this Court has sometimes avoided engaging with issues of constitutional invalidity if the case could be decided as a matter of statutory interpretation. This so-called prudential approach is "not a rigid rule"[161] and there may often be good reasons not to take that approach. Indeed, the importance of an issue can itself be a reason for the issue to be confronted rather than avoided. The constitutional role of this Court can require engagement with large and important issues even if those issues might strictly be unnecessary to resolve the dispute between the parties[162]. More importantly, the so-called prudential approach does not apply at all where two constitutional issues are involved. The so-called prudential approach does not justify the Court refusing to engage with one constitutional issue on the basis that it is perceived to be more important than another constitutional issue. And it certainly should not be extended to justify the suspension of logic by addressing a consequential constitutional issue before an anterior constitutional issue.

Mr Vunilagi submitted that R v Bernasconi should be re-opened and that its reasoning should be re-explained or its result overruled. In order to address that submission, it is necessary to delineate, with precision, the different concepts of "re-opening", "re-explaining" and "overruling".
"Re-opening" an earlier case involves the acceptance that it is appropriate to engage in consideration of whether to depart from either, or both, of: (i) the decision, or result of the case; or (ii) all or part of the ratio decidendi. Hence, this Court's approach to re-opening is not limited to the result of a case. It extends also to the re-consideration of any ratio decidendi of the case even if the result is left undisturbed[163]. Since the inception of this Court these two closely associated aspects of a case have been stressed. In Deakin v Webb[164], for instance, Griffith CJ said that "[t]he learned Judges of the Supreme Court intimated that they did not consider themselves bound by the reasoning contained" in a decision of this Court. The Chief Justice politely described that intimation as "a somewhat novel mode of dealing with a judgment of a Court of final appeal", explaining that a "[c]ourt of law performs the double function of declaring the law, and of applying it to the facts"[165].
The principles concerning re-opening have not, however, yet been extended beyond the result and ratio decidendi of a case to seriously considered obiter dicta despite the rule, which is binding only by virtue of the rule itself, that seriously considered obiter dicta of this Court is binding upon lower courts[166]. The classical view of the ratio decidendi that binds lower courts is as follows. It is the legal rules necessary (or sometimes sufficient where a decision might have more than one basis) for the decision, based on the material facts before the court, and expressed at an appropriate level of generality. The ratio decidendi will generally follow the expression of it where it is stated by the judge[167] or, if unstated by the judge, it will be the legal principles at the appropriate level of generality which "the judge must logically have considered necessary or treated as material"[168].
The choice to re-open an earlier case requires a preparedness to disrupt the rules that have previously been applied by the courts of Australia. It is not a consideration that should be undertaken lightly: "[u]niformity of judicial decision is a matter of great importance. Without it, confidence in the administration of justice would soon dissolve"[169]. The decision whether to re-open an earlier case, and therefore potentially depart from the result or the ratio decidendi of that case, requires a preliminary assessment of the prospects that the Court will so depart. As explained below, a number of different factors are considered which, in broad terms, involve asking: (i) the force with which it is considered that the result of the case or the ratio decidendi of the case cannot be justified; and (ii) the consequences of departure from the result of the case or the ratio decidendi of the case.
The general approach of this Court has been to require a person who requests this Court to depart from the result or ratio decidendi of an earlier case to seek leave for that case to be re-opened. At least where that leave requirement concerns a constitutional matter, the requirement of leave has been controversial as a matter of principle[170]. It is also difficult in some cases, as a matter of practice, to ascertain before oral argument whether leave to re-open should be granted in the absence of full argument about the extent to which the ratio decidendi of a case is unjustified or contrary to the stream of authority and precedent or about the consequences of departure from the reasoning or result in the earlier case[171].
Nevertheless, in some cases, leave to re-open might be refused at the outset of a case, or during the hearing, because of the lack of prospects of the Court departing from the result of the previous case or its ratio decidendi. For instance, in Evda Nominees Pty Ltd v Victoria[172], this Court refused leave to re-open earlier cases[173], even though the decisions in those cases may have stood only "as authority for a result, rather than for any strand of reasoning common to a majority of Justices"[174]. Six members of this Court said, after reference to those earlier cases, that[175]:

Most fundamentally, the first two questions are concerned with a different dimension from the latter two. The first two questions will affect the force with which a belief is held that the result or ratio decidendi in the earlier case cannot be justified. Justification is concerned with principle and authority. Even a decision that is contrary to legal principle might be justified if, for example, it is structurally embedded such as where a decision is reached by unanimous reasoning and is developed by a succession of cases[179]. The second two questions concern the consequences of overruling the result of the earlier case, or departing from its ratio decidendi, irrespective of the force with which it is thought to be wrong[180].
Although both dimensions of consideration are important, greater importance lies with the dimension of justification that is concerned with the correctness of the result or reasoning, as a matter of legal principle and structural legal integrity: even an argument against re-consideration based on "widespread practical ramifications and … extraordinary confusion" cannot prevail if it is clear that the interpretation is incorrect in the sense of being unprincipled and structurally inconsistent[181].
Hence, even where there are large consequences for re-explaining or overruling an earlier result or ratio decidendi, the dominant approach in this Court has been to re-explain or overrule the earlier case where it is "clearly wrong" or "manifestly wrong"[182], in the strong sense that the result or ratio decidendi is not a matter upon which "[r]easonable minds may differ"[183] because it both "conflicts with well established principle" and "fails to go with a definite stream of authority"[184].
There may even be cases that are so fundamentally contrary to basic principle, involving reasoning that is so abhorrent or involving such significant and manifest error or injustice, that the result or reasoning should never be permitted to stand even if the decision might be thought to have become structurally embedded and even if overruling would lead to large consequences. Such cases are likely to be extremely rare. But, if and when those cases arise, a judge's ethical duty precludes timorous acceptance of grave injustice even if the price of that duty is perpetual dissent.
After assessing all the factors, if the Court departs only from the ratio decidendi and not the result of the case this amounts to "re-explaining" the ratio decidendi of the case (or "reformulat[ing] the principle"[185]) rather than "overruling" the decision or result. In Esso Australia Resources Ltd v Federal Commissioner of Taxation, in the course of departing from the ratio decidendi of an earlier decision of this Court, although not the result, Gleeson CJ, Gaudron and Gummow JJ said[186]:

The same negative implication relied upon by Griffith CJ in R v Bernasconi was used as the basis for the decision in Porter v The King; Ex parte Yee[194]. In Porter, this Court relied upon R v Bernasconi to hold that a law under s 122 could confer appellate jurisdiction on this Court for appeals from a Territory court[195], creating an exception to the principle that Ch III was the exclusive source of the appellate jurisdiction of the High Court[196]. A so-called "workable anomaly" was thus created by which the High Court's appellate jurisdiction was not exclusive, but its original jurisdiction was exclusive[197]. As Isaacs J expressed the point in the majority in Porter, the reasoning in R v Bernasconi was thought to justify the exclusion of s 122 from the exclusive operation of Ch III on the basis that the judicial power of the Commonwealth in Ch III was "that of the Commonwealth proper"[198]. In other words, Ch III of the Constitution was confined to "the area included within States"[199].
Although there was, for some years, support for the negative implication recognised in R v Bernasconi and in Porter, based on the rationale that the Territories stand outside the "Commonwealth proper" or the "federal system"[200], the negative implication itself and that rationale are unprincipled. The principled approach is that taken by Knox CJ and Gavan Duffy J in dissent in Porter, in which their Honours denied the existence of any negative implication in Ch III that excluded s 122 from its scope and thus purported to authorise "an attempt to do that which is implicitly forbidden by the Constitution", namely the conferral of appellate jurisdiction on this Court outside Ch III[201].
In 1998, in Gould v Brown[202], McHugh J said that s 122 is not an exception to the principle that "Ch III is exhaustive of the High Court's appellate jurisdiction", and that for that reason he had long believed that R v Bernasconi and Porter had been wrongly decided. McHugh J's premise about the exhaustive nature of Ch III can be accepted without necessarily accepting his Honour's conclusion that Porter was wrongly decided. This is because there may be other sources of constitutional authority in Ch III for legislation conferring appellate jurisdiction on the High Court for an appeal from a Territory court. One possibility may be to say that a Territory court (being a court of a Territory invested with federal jurisdiction within the meaning in s 71 of the Constitution[203]) always exercises jurisdiction over a federal subject matter because any rights and duties in issue are "under" a law of the Commonwealth Parliament, in the sense that the rights or duties ultimately owe their existence to[204], or ultimately depend for their enforcement upon[205], a law of the Commonwealth Parliament. This may be so whatever the scope of the geographic dimension of jurisdiction[206] and whether or not the federal jurisdiction is directly invested by the Commonwealth Parliament[207]. Consistently with the Commonwealth of Australia being "a single law area with respect to matters within federal jurisdiction"[208], this would mean that, like the reference to "invests with federal jurisdiction" in s 71, the reference to "exercising federal jurisdiction" in s 73 contains no implication limiting it to State courts[209]. This possibility, and the correctness of the decisions in Capital TV and Appliances Pty Ltd v Falconer[210] and Spratt v Hermes[211], need not be further explored on this appeal.
From 2000, the negative implication in Ch III, recognised in R v Bernasconi and Porter - based on a rationale that regarded Ch III as concerned only with the so-called "Commonwealth proper" that included the States and not the Territories - was also implicitly rejected in a series of cases in which it was repeatedly held that "courts created pursuant to s 122"[212], which may be invested with federal jurisdiction, fall within s 71 of the Constitution and are subject to restrictions, including the principle in Kable v Director of Public Prosecutions (NSW)[213], arising from implications in Ch III[214].
A rejection of the negative implication in Ch III, and a consequent inclusion of the Territories and s 122 within the scope of Commonwealth judicial power and Ch III of the Constitution, is also consistent with the treatment of the executive and legislative powers of the Commonwealth. In Re Governor, Goulburn Correctional Centre; Ex parte Eastman[215], Gummow and Hayne JJ observed that the executive power of the Commonwealth in s 61 is not limited to the States, and the legislative power vested by s 1 in the "Federal Parliament" is not limited to the States. And in Re Wakim; Ex parte McNally, their Honours quoted from Cowen and Zines[216], surely correctly, that[217]:

The reference to Lamshed v Lake[218] was to the reasoning of this Court that there was no negative implication in Ch V of the Constitution that prevented a law validly made under s 122 from prevailing over an inconsistent State law by operation of s 109 of the Constitution. In that case, Kitto J said that the proper interpretation treated "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"[219]. As Dawson J recognised in Kruger v The Commonwealth[220], the reasoning in R v Bernasconi "is plainly inconsistent with a great deal that was said in Lamshed v Lake".
A rejection of the negative implication in Ch III permits Ch III to be treated in the same way as Chs I ("The Parliament"), II ("The Executive Government"), IV ("Finance and Trade"), and V ("The States") of the Constitution. In addition to Ch V, with which Lamshed v Lake was concerned[221], Barwick CJ observed in Spratt v Hermes that neither Ch I nor Ch II contains any negative implication excluding the Territories, and s 122, from the scope of those Chapters[222]. Nor is such a negative implication to be found in Ch IV. Indeed, it has even been suggested that the constitutional guarantee of freedom of trade, commerce and intercourse between the States in s 92 extends beyond instances where goods transit between States and pass through a Territory[223], so as to include a positive implication of the same guarantee in the Territories[224]. There is no justification for a different approach to Ch III from the approach taken to Chs I, II, IV, and V[225].
Once it is recognised that the negative implication in Ch III in the reasoning of Griffith CJ (Gavan Duffy and Rich JJ agreeing) in R v Bernasconi is manifestly wrong and is contrary to the stream of authority and precedent in this Court, leave to re-open R v Bernasconi must be granted and that reasoning in that case must be rejected. The result in R v Bernasconi must also be overruled unless: (i) the result can be re-explained on an orthodox basis; or (ii) there are consequential obstacles to overruling the result which support the result remaining as law (but confined as narrowly as possible to avoid those consequences).
For the reasons immediately below, the result in R v Bernasconi cannot be re-explained as being based upon a more confined negative implication. Nor can it be re-explained, as Mr Vunilagi submitted, as being limited to laws applying in a Territory placed by the Crown under the authority of and accepted by the Commonwealth. However, the result in R v Bernasconi might be re-explained by reasoning that avoids many of the extreme consequences raised by the Attorneys-General of the Commonwealth, the Australian Capital Territory and the Northern Territory. That reasoning involves interpreting "any law of the Commonwealth" in s 80 of the Constitution as excluding the laws of a self-governing Territory. Ultimately, this appeal should be resolved in this way, with the effect that it is unnecessary to consider whether or not the result in R v Bernasconi could be re-explained by reference to this point of interpretation.

One attempt to re-explain the result in R v Bernasconi was to rely on a narrower approach that confined the negative implication to s 80, immunising s 122 from the scope of s 80 only, rather than from Ch III as a whole. The purported rationale for such a confined negative implication that treated s 122 as immunised only from s 80 rather than Ch III as a whole was expressed by Isaacs J in R v Bernasconi. It was essentially the same as the purported rationale for the wider negative implication. As Fullagar J and Kitto J respectively said in Waters v The Commonwealth[226] and in Spratt v Hermes[227], the approach of Isaacs J was "really expressing the same view" and there is "no difference in fundamental idea".
Like the purported rationale for the wider negative implication, the purported rationale for the confined negative implication was that s 80 is concerned only with a federal system that excludes the Territories. As Isaacs J said, when adopting the more confined negative implication, the purported rationale is that s 80 applies to the Commonwealth only "as a self-governing community" whereas the Territories are not "constituent parts of the self-governing body" and are "not yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers"[228]. In Porter[229], after incorporating all of his reasons from R v Bernasconi, Isaacs J reiterated the purported rationale as being that the judicial power of the Commonwealth in Ch III "means the area included within States".
The more confined negative implication has occasionally been relied upon by various Justices of this Court who have sought to re-explain R v Bernasconi. For instance, in Spratt v Hermes[230], the more confined negative implication was preferred by Barwick CJ. And in Capital TV and Appliances Pty Ltd v Falconer[231], the more confined negative implication was supported by Menzies J, who said that the words of s 80 "any law of the Commonwealth" should be "read as if they were followed by the words 'other than a law made under s 122'".
Although the confined negative implication is essentially a narrower version of the same argument as the broader negative implication, there is even less that could justify a confined negative implication in s 80 than the broader negative implication in Ch III as a whole. The factors that might have supported the broader negative implication in Ch III as a whole were: the approach that had been taken to the "legislative courts" in the United States[232], particularly the "territorial courts [which] resemble state courts, which need not satisfy Article III's strictures"[233]; the absence of any express mention in Ch III of the Territories or Territory courts; and the perception that the first five Chapters of the Constitution are concerned with the working of a federation of States but Ch VI is concerned with a different topic[234]. But no such arguments exist for a confined negative implication in s 80. Indeed, the text of s 80 refers to "any" law of the Commonwealth.
Mr Vunilagi denied both the broader negative implication that formed the basis of the reasoning in R v Bernasconi, and any attempt to re-explain the result in R v Bernasconi by the more confined negative implication. His challenge in this respect should be accepted. The same reasons of principle that exclude a broader negative implication in Ch III also exclude the more confined negative implication in s 80. Once it is recognised that s 122 is not "disjoined from the rest of the Constitution"[235], then it can no more be disjoined from Ch III in general than it can be from s 80 in particular. Indeed, even Menzies J, who supported the confined negative implication, recognised in Spratt v Hermes[236] that it is hard to "grasp how what is part of the Commonwealth is not part of 'the Federal System'". And despite supporting the confined negative implication in s 80 in Capital TV and Appliances Pty Ltd v Falconer, in the same case Menzies J also held that there was no confined negative implication in s 76(ii) which could permit the words of s 76(ii) "to exclude laws made by the Parliament under s 122"[237].
It is true that some particular provisions of the Constitution have been held, effectively by a confined negative implication, to exclude Commonwealth laws passed pursuant to s 122. But that aspect of the reasoning in many of those decisions has generally been seriously criticised, overruled, or re-explained without the confined negative implication.
One example is the view that a confined negative implication excluded the power in s 122 from the condition in s 51(xxxi) in Ch I of "just terms" that attaches to the power to acquire property from any "person for any purpose in respect of which the Parliament has power to make laws"[238]. In Teori Tau v The Commonwealth[239], this Court unanimously held that s 122 of the Constitution is a plenary power, "general and unqualified"[240], which was unconstrained by the guarantee in s 51(xxxi) of compensation on just terms for the acquisition of property. But, in 2009, this principle in Teori Tau was rejected by four members of this Court, with Gummow and Hayne JJ saying that Teori Tau involved "an error in basic constitutional principle" and had been "rendered an anomaly"[241].
A further example is the line of cases reaching the conclusion that the appointment of judges to Territory courts does not need to comply with the requirements of s 72 of the Constitution[242]. A confined negative implication in s 72, equivalent to the confined negative implication in s 80, was initially influential in the reasoning used to reach that conclusion. But that conclusion was later entirely rejected by some members of this Court[243]. And the conclusion was explained by others without reliance upon a confined negative implication. For instance, it was said that s 72 does not extend to s 122 as a matter of the proper interpretation of its terms because the "other courts created by the Parliament" to which s 72 refers are the same "other federal courts as the Parliament creates" to which s 71 refers[244]. Hence, by treating a Territory court as not being a federal court created by the Commonwealth Parliament, the Territory court would not fall within the terms of s 72.
That line of cases culminated in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[245], in which no member of this Court endorsed a confined negative implication in s 72. The reasoning of Gleeson CJ, McHugh and Callinan JJ denied the operation of s 72 to Territory courts as a matter of precedent without expressly referring to any confined negative implication. The principle they relied upon was that, as a matter of the interpretation of s 72, a Territory court created "by or pursuant to laws under s 122" is not an "other court[] created by the Parliament" within the meaning of s 72[246]. Separately, Gaudron J provided more detail as to this matter of interpretation, also without any reference to a confined negative implication. Her Honour said that contextual considerations provided a basis for reading s 72 so that the reference to "other courts created by Parliament" was "only to federal courts created pursuant to s 71"[247]. Gummow and Hayne JJ took the most nuanced approach, reasoning that whatever might have been the position beforehand, by the time of the appointment of the challenged judge to the Supreme Court of the Australian Capital Territory on 3 April 1995, that Court had been transferred to the authority of the Legislative Assembly of the Australian Capital Territory[248] and had been substantially reconstituted in relevant respects by enactments of the Legislative Assembly. It was not at that time a court created by the Parliament of the Commonwealth within s 72[249]. Kirby J dissented, reasoning that s 72 applied to the relevant enactments[250].
For these reasons the course of authority in this Court does not support recognising a confined negative implication in s 80, which only immunises s 122 from the reach of that particular provision, any more than it recognises the broader negative implication in Ch III as a whole based on the same purported rationale. The course of authority in this Court is opposed to both negative implications.

Counsel for Mr Vunilagi submitted that R v Bernasconi might not need to be overruled if it were confined in its application to laws applying in a Territory placed by the Crown under the authority of and accepted by the Commonwealth. In other words, s 122 of the Constitution could be regarded as distinguishing between two different kinds of Territories: (i) those that are "surrendered by any State to and accepted by the Commonwealth"; and (ii) those that are "placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth".
Counsel for Mr Vunilagi relied upon a statement by Griffith CJ, speaking for this Court in Mitchell v Barker[251] three years after R v Bernasconi, where the Chief Justice said that a distinction may "some day be drawn between Territories which have and those which have not formed part of the Commonwealth". The words were followed by the Chief Justice's statement: "[b]ut the Court, as now constituted, cannot say so". Griffith CJ's refusal to distinguish between different Territories of the Commonwealth was in the context of his Honour's description of the basis for the decision in R v Bernasconi being that Ch III did not apply to a Territory of the Commonwealth.
If the negative implication, either as a wide approach in R v Bernasconi to all of Ch III or as a confined approach only in s 80, were still accepted today, then there may have been much to be said for reducing, as much as possible, the number of Territories that would not be part of the "Commonwealth proper" or the "federal system"[252]. There would equally be much to be said for Mr Vunilagi's submission that such Territories outside the "Commonwealth proper" should not include those which had been surrendered by the Parliament of a State under s 111 of the Constitution and which had, by that provision, "become subject to the exclusive jurisdiction of the Commonwealth". This would particularly be so in relation to the "seat of Government" in the Australian Capital Territory, as provided in s 125 of the Constitution.
But the rejection of any negative implication removes any justification for Mr Vunilagi's submission which draws a distinction between different types of Territories, a distinction that is not contemplated by s 122 itself. As Gleeson CJ, McHugh and Callinan JJ said in Re Governor, Goulburn Correctional Centre; Ex parte Eastman[253], the Territories with which s 122 deals "have been, still are, and will probably continue to be, greatly different in size, population, and development. Yet they are all dealt with, compendiously and briefly, in s 122." In Waters v The Commonwealth[254], Fullagar J had therefore denied that any distinction could be drawn "between Territories surrendered by a State and Territories otherwise acquired by the Commonwealth".

Section 80 of the Constitution was modelled on Art III, s2, cl 3 of the Constitution of the United States, which relevantly provides: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury". But even those apparently all-encompassing words were not given their literal meaning at the time of the adoption of the Constitution: "all crimes" was held to exclude "numerous offenses, commonly described as 'petty', which were tried summarily without a jury"[255].
Section 80 was designed to be more constrained. It expressly limits the extent to which a trial by jury is required. One way that it does so is by applying only to a "trial on indictment". It is the Commonwealth Parliament that provides whether an offence is a summary offence or an indictable offence[256]. At the Convention Debates, Mr Isaacs observed that the Commonwealth Parliament could provide that "murder was not to be an indictable offence, and therefore the right to try a person accused of murder would not necessarily be by jury"[257].
The position of Isaacs J has commanded great support, although it has not been universally accepted. A dissenting view was that of Dixon and Evatt JJ in R v Federal Court of Bankruptcy; Ex parte Lowenstein[258], who reasoned that the essential meaning of an "indictment" needed to be expressed at a high level of generality so that the requirements of s 80 were not rendered illusory. Their Honours considered that the elements of an "indictment" included: (i) the choice by a particular legal authority to proceed to a trial of an offence; and (ii) an offence that was punishable by imprisonment or something more serious. That view did not prevail and leave to re-open R v Federal Court of Bankruptcy; Ex parte Lowenstein was later refused[259].
In 1985, three members of this Court said in Kingswell v The Queen that it was "settled" that s 80 "leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily"[260]. Although that was not a unanimous view[261], when the issue was subsequently reagitated in Cheng v The Queen[262] there was again little appetite to depart from the approach of Isaacs J[263]. Gleeson CJ, Gummow and Hayne JJ refused leave to re-open Kingswell, and made remarks in support of that decision[264]. McHugh J and Callinan J, writing separately, also rejected the challenge to Kingswell. McHugh J wrote of his belief in the importance of trial by jury but concluded that to give effect to his own values or beliefs would be to cross the line between constitutional interpretation and constitutional amendment; "[t]he words of s 80 were deliberately and carefully chosen to give the [Commonwealth] Parliament the capacity to avoid trial by jury when it wished to do so"[265]. And although Callinan J expressed "disquiet" about the prospect of leaving it "entirely for the legislature to define what is, and what is not to be an offence charged on indictment", his Honour referred to the "deliberate selection by the framers of the Constitution of the language to be used in s 80 of the Constitution"[266].
Another way that s 80 constrains the extent to which trial by jury is required is by providing that the trial is to be by jury for "any offence against any law of the Commonwealth". The interpretative issue concerning the meaning of "any law of the Commonwealth" that Mr Vunilagi raised on this appeal involves similar issues of levels of generality to those arising in the interpretation of "trial on indictment".
If the purpose of s 80 were to provide a strong guarantee of trial by jury, rather than a flexible and pragmatic approach ensuring trial by jury of those offences that the Commonwealth Parliament nominated as indictable, then there might be a strong argument that it should not matter whether the offence to be tried was one that was created by a Commonwealth law or whether it was one that was created by the law of a self-governing Territory, the ultimate authority for which was a Commonwealth law. In other words, if the purpose of s 80 were to provide for a robust guarantee, it should not be affected by whether a person was tried for offences under ss 54 and 60 of the Crimes Act (or their predecessor provisions) on:

The central issue of interpretation of s 80 of the Constitution concerns whether a law passed under the Self-Government Act is a "law of the Commonwealth". Mr Vunilagi submitted that a "law of the Commonwealth" in s 80 is not limited to laws passed by the Commonwealth Parliament or its delegates. He submitted that it includes any law with a statutory source that is either: (i) enacted indirectly under the authority of the Commonwealth Parliament; or (ii) a law of a constituent part of the Commonwealth body politic. In other words, it was submitted that a law passed under the Self-Government Act is a "law of the Commonwealth" under either of these limbs. If this submission were accepted, then every law of the Legislative Assembly of the Australian Capital Territory would be a law of the Commonwealth.
This submission, however, is inconsistent with the formal approach to the interpretation of s 80. Consistently with the formal approach taken to the meaning of "trial on indictment" in s 80, a "law of the Commonwealth", properly understood, means a law that is an enactment of the Commonwealth Parliament or its delegate (as delegated legislation)[270]. The formal approach to s 80 denies that a law passed by a Parliament of a Territory, whether in the seat of government or not, is a law of the Commonwealth. Such a law is not a law passed by the Commonwealth Parliament or its delegate. Nevertheless, just as the Commonwealth Parliament has the power to choose whether s 80 applies to an offence by making it indictable, so too the Commonwealth Parliament retains the power to make s 80 apply to an offence created by the Parliament of a Territory by "overriding" an enactment of the Territory and passing a "new law" under s 122 for a Territory creating any indictable offence, with the effect that the offence would be one of the Commonwealth and would therefore be required to be tried by jury[271].
The Self-Government Act was not a delegation by the Commonwealth Parliament of its legislative power under s 122, which would have had the effect that laws passed under the Self-Government Act constituted the exercise of delegated power. Rather, the Self-Government Act, enacted by the Commonwealth Parliament in reliance upon s 122, created a new source of power for the government of the Australian Capital Territory. As Mason CJ, Deane, Dawson and McHugh JJ said in Svikart v Stewart[272], the legislature of a self-governing Territory "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". As the Solicitor-General for the Northern Territory accepted, the power exercised by the Legislative Assembly under the Self-Government Act is subordinate power, but it is not delegated power.
Mr Vunilagi relied upon the reasoning of Kitto J in Lamshed v Lake[273] that "the entire legal situation of the territory, both internally and in relation to all parts of the Commonwealth, may be determined by or by the authority of Parliament". This reasoning can be accepted. It may arguably mean that since a Commonwealth law, the Self-Government Act, is the ultimate source of authority for the power to pass laws under that Act, a matter that arises under the Self-Government Act is "under" a law of the Commonwealth Parliament for the purposes of s 76(ii) of the Constitution. But it does not mean that a law passed with the authority of the Self-Government Act is formally a "law of the Commonwealth" within the meaning of s 80.
This formal approach to the meaning of a "law of the Commonwealth" in s 80 ensures a consistent and coherent approach throughout the Constitution. It conforms with the conception of a law of the Commonwealth in ss 61, 109 and 120 of the Constitution. For instance, s 109 preserves the paramountcy of policy choices made by the Commonwealth Parliament by ensuring that State laws are inoperative to the extent that they are inconsistent with laws passed by the Commonwealth Parliament. But it does not confer the same paramountcy upon the policy choices of a Parliament of a Territory: the same State laws are not inoperative to the extent that they are inconsistent with the laws of the Parliament of a Territory.
The formal approach to s 80 also aligns with the approach taken by a majority of this Court to the expression "power of the Parliament" in s 90. In Capital Duplicators Pty Ltd v Australian Capital Territory[274], a majority of this Court held that the exercise of power by the Legislative Assembly of the Australian Capital Territory was by "its own legislative powers concurrent with, and of the same nature as, the powers of the [Commonwealth] Parliament".

The final issue in relation to the interpretation and application of s 80 concerns whether, at the time Mr Vunilagi was tried, ss 54 and 60 of the Crimes Act were laws of the Commonwealth within the formal meaning of that expression. Mr Vunilagi submitted that ss 54 and 60 were offences against laws of the Commonwealth, such that the requirement for a trial by jury in s 80 applied. That submission is correct in relation to the predecessor provisions to ss 54 and 60. But, for the reasons below, by 28 May 1992 at the latest, and therefore long before Mr Vunilagi was tried, ss 54 and 60 of the Crimes Act were laws of the Legislative Assembly of the Australian Capital Territory. They were not laws of the Commonwealth.
The Crimes Act 1900 (NSW) contained offences for rape and indecent assault. Upon the establishment of the Australian Capital Territory on 1 January 1911, the Seat of Government Acceptance Act 1909 (Cth) continued the Crimes Act 1900 (NSW) in force[275], while the Seat of Government (Administration) Act 1910 (Cth)[276] gave it effect "as if it were a law of the Territory".
The offences under ss 54 and 60 for which Mr Vunilagi was tried and convicted were inserted into the Crimes Act on 28 November 1985, by the Crimes (Amendment) Ordinance (No 5) 1985 (ACT), as ss 92D and 92J respectively.
In 1989, by the power in s 122 of the Constitution, the Self-Government Act - of the Commonwealth Parliament - established the Legislative Assembly of the Australian Capital Territory[277] and gave the Legislative Assembly the "power to make laws for the peace, order and good government of the Territory"[278]. Section 3 of the Self-Government Act defined an "enactment" as "(a) a law (however described or entitled) made by the Assembly under this Act; or (b) a law, or part of a law, that is an enactment because of section 34". Section 34, entitled "[c]ertain laws converted into enactments", contained various deeming provisions which deemed certain laws to be enactments. Relevantly, s 34(4) provided that:

Section 34(5) provided that "[s]ubsection (4) does not apply to a law specified in Schedule 3". The Crimes Act 1900 (NSW) was listed in Sch 3 to that Act with the effect that s 34(4) did not apply to it. But, on 1 July 1990, the Crimes Act 1900 (NSW) was removed from Sch 3 to the Self-Government Act[279]. This meant that from 1 July 1990 s 34(4) of the Self-Government Act operated with respect to the Crimes Act 1900 (NSW) as it applied in the Territory.
The operation of s 34(4) of the Self-Government Act by which the Crimes Act was "taken to be an enactment" involves a legal fiction. The reason that the Commonwealth Parliament needed to deem, by legal fiction, the Crimes Act to be an enactment of the Legislative Assembly of the Australian Capital Territory is that it was not, in fact, an enactment of the Legislative Assembly made pursuant to the power in s 22 of the Self-Government Act. Instead, the Crimes Act was a law of the Commonwealth Parliament, operating by the Seat of Government (Administration) Act giving the Crimes Act effect as a law of the Territory.
The Commonwealth Parliament cannot avoid the constitutional characterisation of its law by deeming it to be legislation of a subordinate polity. Constitutional interpretation does not work like that[280]. Contrary to the submissions of the Attorney-General of the Australian Capital Territory (the second respondent) and the Attorney-General of the Commonwealth, the relevant provisions did not become laws of the Legislative Assembly of the Australian Capital Territory on 1 July 1990 merely by virtue of the deeming provision in s 34(4) of the Self-Government Act[281].
Subsequent to 1 July 1990, the Legislative Assembly of the Australian Capital Territory made various amendments to the provisions of the Crimes Act, including those for which Mr Vunilagi was tried. Relevantly, in 2001, ss 92D and 92J of the Crimes Act were re-numbered as ss 54 and 60[282]. In 2008, the fault element necessary to prove the offence in s 54 was clarified[283]. In 2011, the element of recklessness in s 60 was amended[284]. Also in 2011, the penalties for a contravention of s 60 were increased[285]. In 2013, the definition of sexual intercourse in s 50 of the Crimes Act was expanded, altering the physical element of the offence of sexual intercourse without consent under s 54[286].
It is arguable that a law of the Commonwealth Parliament does not become a law of the Legislative Assembly of the Australian Capital Territory merely because the Legislative Assembly makes some minor amendments to it which do not change the law's essential substance, and which are not sufficient to constitute adoption of the law. But even on this view, it must be the case that, at some point, amendments by the Legislative Assembly to a Commonwealth law would be so substantial that, unlike the ship of Theseus, it would be impossible to characterise the formal nature of the law as a Commonwealth law[287]. Fascinating as these issues may be, it is unnecessary to explore them further. This is because an earlier law of the Legislative Assembly of the Australian Capital Territory adopted the Crimes Act as a law of the Australian Capital Territory.
Section 3(1) of the Crimes Legislation (Status and Citation) Act 1992 (ACT) provided that the Crimes Act 1900 (NSW) "shall be taken to be, for all purposes, a law made by the Legislative Assembly as if the provisions of [that] Act had been re-enacted in an Act passed by the [Legislative] Assembly". The result was that from 28 May 1992, being the date of commencement of that Act, the Crimes Act 1900 (ACT) was adopted by the Legislative Assembly and thus became a law of the Territory. As the Statute Law Amendment Act 2001 (No 2) (ACT)[288] relevantly provided in an explanatory note, "[t]he Crimes Act 1900 became an Act of the Legislative Assembly because of the Crimes Legislation (Status and Citation) Act 1992".
In 2020, Mr Vunilagi was therefore tried for offences against a law of the Australian Capital Territory. He was not tried for offences against a law of the Commonwealth. The terms of s 80 of the Constitution did not apply to his trial.

[1]

Leave to re-open the reasoning in R v Bernasconi should be granted. Irrespective of the correctness of the result in that case[289], this Court should reject the reasoning: (i) that s 122 sits outside Ch III of the Constitution, and (ii) that any negative implication is contained in Ch III or in s 80 to immunise s 122 from the operation of Ch III or s 80. 2. As to the result in R v Bernasconi, the Attorneys-General of the Commonwealth, the Australian Capital Territory and the Northern Territory all submitted that the consequences of overturning the result could be extreme. They pointed to legislation that, for many decades, has provided for judge alone trials on indictment in inhabited and uninhabited Territories, and legislation permitting majority verdicts in the Northern Territory[290]. That submission appeared to present this Court with a choice between, on the one hand, maintaining a decision that is manifestly wrong as a matter of both principle and the stream of authority and precedent and, on the other hand, facing extreme consequences if the result were to be overturned. 3. Ultimately, however, this appeal does not present such a choice. In the Australian Capital Territory, convictions from judge alone trials have been supported for more than three decades by laws passed under self-government legislation[291]. And the Northern Territory obtained self-government in 1978[292]. Most of the consequences of overturning the result in R v Bernasconi to which reference was made do not arise because, as a matter of the interpretation of s 80 of the Constitution, provisions such as ss 54 and 60 of the Crimes Act would not have fallen within the terms of s 80 because they are not laws of the Commonwealth. 4. The conclusion that, as a matter of the interpretation of s 80 of the Constitution, ss 54 and 60 of the Crimes Act have not been laws of the Commonwealth for decades concerns the smaller issue of interpretation that was raised, but not decided, in R v Bernasconi. It is not necessary to consider whether a similar application could re-explain the result in R v Bernasconi, which would have the effect that the result in R v Bernasconi would not be overruled. The application of this smaller issue of interpretation to the facts of R v Bernasconi would require a close analysis of the nature of the offence provision under which Mr Bernasconi was convicted[293], adopted as law in the Territory of Papua by the Criminal Code Ordinance of 1902 (No 7 of 1902) (British New Guinea), and a consideration of whether the continuance of that Ordinance by the Papua Act 1905 (Cth) had the effect that Mr Bernasconi was tried for an offence against a law of the Commonwealth. It may be that such an issue is only a matter of historical interest. 5. The appeal should be dismissed.

Vunilagi v The Queen

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