The court resumed after Easter with a couple of hefty judgments delivered on Wednesday, 12 April. Heard by a Full Bench of seven Justices, Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary, Department of Home Affairs [2023] HCA 10; (2023) 97 ALJR 214 held by majority that a purported instruction by the immigration minister requiring Departmental officials effectively to filter applications to override certain AAT decisions under the Migration Act 1958 (Cth), s 351 involved a prohibited delegation of a power vested exclusively in the Minister.  In five separate judgments, the court explored not only the scope of s 351 but the broader scope of Commonwealth executive power and its amenability both to control by the legislature and supervision by Chapter III courts.

On the same day the court delivered a unanimous joint judgment in Kingdom of Spain v Infrastructure Services Luxembourg sàrl [2023] HCA 11; 97 ALJR 276, concerning the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) and the application of the Foreign States Immunities Act 1985 (Cth) to international arbitral awards registered in Australia as judgments of the Federal Court.  The respondent obtained an arbitral award of €101 million against the Kingdom of Spain and sought to enforce it in Australia (where the Kingdom was known to have property holdings).  The respondent registered the award with the Federal Court and sought to enforce it under Pt 2 of the International Arbitration Act 1974 (Cth).  At first instance, Stewart J held that Spain was bound by the international convention and as such had waived its sovereign immunity from enforcement, but not from execution of the judgment which, under the Convention was subject to the Australian domestic law.  On appeal the Full Court (Allsop CJ, Perram and Moshinksy JJ) concluded that immunity from the court processes of execution – and perhaps also enforcement – had not been waived but ordered that judgment for the award amount be entered nevertheless.

Spain’s appeal to the High Court raised two issues: whether agreement to relevant provisions of the Convention involved waiver of foreign state immunity from the jurisdiction of Australia courts and if so, whether Spain’s amenability to jurisdiction was limited to “bare recognition” of the award, or to “recognition” and “enforcement”; and secondly whether the Full Court’s orders amounted to enforcement.  The Court unanimously dismissed the appeal, holding that the structure of the Convention used the words “recognition”, “enforcement” and “execution” separately and with different meanings.  The orders of the courts below were properly characterised as orders for recognition and enforcement only.  Spain’s agreement to the Convention provisions amounted to a waiver of immunity from recognition and enforcement, but not from execution, which was left to Australian domestic laws concerning immunity.

In a short judgment delivered on 20 April (Hood v Down Under Enterprises International Pty Ltd; Hood v New Directions Australia Pty Ltd [2023] HCA 12 (2023) 97 ALJR 296), Gageler and Steward JJ dismissed an application for indemnity costs arising out of a refusal of special leave to appeal.  The successful respondents made a purported Calderbank offer to settle the accompanying order for costs, which their Honours held was ineffective since it was not open for acceptance at any relevant time, ie when the special leave applications were instituted or on foot. The unsuccessful party was therefore not vulnerable by having ignored the purported offer.

Attorney-General (Cth) v Huynh [2023] HCA 13, decided by the Full Court on 10 May, held by majority that an inquiry after conviction under New South Wales law could be conducted in respect of convictions for Commonwealth offences.  Mr Huynh was sentenced in the District Court of New South Wales to 12 years’ imprisonment for conspiracy to import a commercial quantity of pseudoephedrine contrary to the Criminal Code (Cth). Having exhausted all avenues of appeal, he applied for an inquiry into his convictions pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), ss 78 and 79(1).  He was unsuccessful at first instance before Garling J and on appeal to a five-member bench of the NSW Court of Appeal. The High Court held unanimously that ss 78(1) and 79(1) of the NSW statute do not apply of their own force to a conviction by a State court for an offence under Commonwealth law.  A 4/3 majority nevertheless held that ss 78(1) and 79(1)(b) (but not s 79(1)(a)) applied to such a conviction because they were “picked up” as laws of the Commonwealth by the Judiciary Act 1903 (Cth), s 68(1).  Consequently the appeal was allowed and the matter remitted to the Court of Appeal for further hearing and determination.

In BA v The King [2023] HCA 14, also delivered on 10 May, a majority of the court held that the appellant did not commit a “break and enter” offence against the Crimes Act 1900 (NSW), s 112 when he forcibly  re-entered an apartment of which he was a co-tenant but no longer a resident.  After separating from his partner and moving out of the property, the appellant returned to collect some belongings but was refused entry by his former partner.  In response he kicked the door open and assaulted her.  The majority Justices held that the statutory offence required that there be a trespass: the appellant did not trespass on the property because he had a right of exclusive occupancy under a current residential tenancy agreement which was not lost even after he ceased to occupy the apartment.

On 17 May the Full Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 considered whether a member of the Full Court of the Federal Court should have been disqualified from hearing the appellant’s appeal to that court and whether the question of disqualification should have been resolved by the judge himself or by the whole Bench.  The appellant, a non-citizen, was convicted of a drug importation offence in 2013 and sentenced to a term of imprisonment leading to the cancellation of his visa on character grounds.  A delegate of the respondent Minister decided not to revoke the cancellation decision; the delegate’s decision was affirmed by the Administrative Appeals Tribunal and an application for judicial review of the Tribunal decision was refused by Kerr J in the Federal Court.  The appellant then appealed to a Full Court of the Federal Court which was to be constituted by McKerracher, Griffiths and Bromwich JJ. 

It emerged just before the hearing of the appeal that Bromwich J, while holding office as Commonwealth Director of Public Prosecutions had appeared as leading counsel for the Crown to argue points of law in the appellant’s appeal against conviction for the drug offences.  Counsel for the appellant made an oral application for Bromwich J to recuse.  Following a short adjournment, the presiding judge invited Bromwich J to “deal with the application”, which his Honour did by declining to recuse himself from the hearing of the appeal.  A majority of the High Court held that his Honour should have done so, applying the established test of the “fair-minded lay observer” in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 75 ALJR 277 and concluding that in the circumstances the Full Court lacked jurisdiction to hear the appeal.

While not dispositive of the present appeal, the High Court published dicta concerning the second question. Kiefel CJ and Gageler J opted for determination by the whole of the Full Court; Gordon J (with whom Edelman and Steward JJ agreed in separate judgments) held that the application should be determined by the individual judge “in the first instance” and, if that judge declines to recuse, the other members of the court should decide whether it is possible to proceed, or prudent to reconstitute.  Jagot J held that any issue of bias must be determined by the judge said to be subject to disqualification and no other judge exercising “co-ordinate jurisdiction” can gainsay it.  Consequently, the jurisdiction of the court as constituted “rises or falls on the decision of [the first judge]”.  Gleeson J declined to decide the question “in the face of possible law reform”.

The majority held that the hypothetical fair-minded lay observer would have apprehended a bias on Bromwich J’s part which “vitiated” the jurisdiction of the whole Bench.  QYFM’s appeal goes back to the Full Court to be heard by three other judges.

Finally, in BDO v The Queen [2023] HCA 16, also decided on 17 May, the court considered a child’s responsibility for criminal acts under the Criminal Code (Qld) and whether the requirements of s 29(2) to rebut a presumption of incapacity can be equated to comparable requirements of the common law.  The appellant was convicted on 11 counts of rape, alleged to have been committed on unknown dates when he was aged between nine and 19 although the appeal was concerned only with the appellant’s criminal responsibility between the ages of 10 and 14.  Allowing the appeal in part, the High Court held that evidence of the child’s capacity to know that he or she “ought not to do the act or make the omission” constituting an actus reus sufficient under s 29(2) to rebut the presumption of incapacity, does not require the prosecution to prove actual knowledge of moral wrongness of the act in question, but rather the child’s capacity to know or understand that to be the case.  That is to be drawn from evidence of the child’s intellectual and moral development.

The court’s next sittings commence on Monday 5 June and continue until Friday 16th, after which the court will adjourn for a six-week winter recess.