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

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

ATTORNEY-GENERAL (CTH) APPELLANT

AND

HUY HUYNH & ORS RESPONDENTS

Attorney-General (Cth) v Huynh

[2023] HCA 13

Date of Hearing: 8 & 9 November 2022

Date of Judgment: 10 May 2023

S78/2022

ORDER

1. Appeal allowed.

2. Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 8 December 2021.

3. Remit the matter to the Court of Appeal for the hearing and determination of the further amended summons in accordance with the judgment of this Court.

On appeal from the Supreme Court of New South Wales

Representation

S P Donaghue KC, Solicitor-General of the Commonwealth, with T M Glover and C Ernst for the appellant (instructed by Australian Government Solicitor)

R J Wilson SC with D J Reynolds for the first respondent (instructed by Legal Aid (NSW))

G A Hill SC with J S Stellios, appearing as amici curiae (instructed by Australian Government Solicitor)

R J Orr KC, Solicitor-General for the State of Victoria, with T M Wood for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

Submitting appearances for the second and third respondents

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Attorney-General (Cth) v Huynh

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – State laws applicable to offenders convicted of Commonwealth offences – Where s 78(1) of Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act") permitted convicted person to apply to Supreme Court of New South Wales for inquiry into conviction or sentence – Where s 79(1)(a) of CAR Act permitted judge to direct an inquiry take place – Where s 79(1)(b) of CAR Act permitted judge to refer whole case to Court of Criminal Appeal to be dealt with as an appeal – Where convicted person applying under s 78(1) was convicted of Commonwealth offence – Whether ss 78 and 79 applied of own force to person convicted of Commonwealth offence – Whether s 68(1) of Judiciary Act 1903 (Cth) operated to apply ss 78(1), 79(1)(a) and 79(1)(b) of CAR Act to person convicted of Commonwealth offence – Whether ss 78(1) and 79(1)(b) of CAR Act could be applied independently of s 79(1)(a) without different legal operation – Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly conferred on judge of State court acting in personal capacity a function without their consent – Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly imposed administrative duty on holder of State statutory office without State legislative approval.