‘Parliamentary Perks’ as Constitutionally Protected Property?: Cunningham v Commonwealth

By Dr Lulu Weis

Cunningham Case Page

How could the same constitutional provision that Darryl Kerrigan famously invoked to protect his ‘castle’ be relied upon by former Members of Parliament to protect ‘gratuitous’ — in the sense that they go above and beyond entitlements based on superannuation contributions — retirement benefits against any possible future reductions? As news coverage of the High Court’s recent decision in Cunningham v Commonwealth [2016] HCA suggests, the very contention is offensive to public sensibilities.

The constitutional provision in question, s 51(xxxi), protects individuals from the arbitrary acquisition of property by requiring that the acquisition of property by the Commonwealth be ‘on just terms’. Yet it seems highly counterintuitive to think of gratuitous retirement benefits — funded by taxpayer money, no less — as ‘property’ that the Constitution affords protection to. As one opinion piece scoffed, ‘you could hardly be blamed for imagining a snort of derision from the Bench at the implication that the [former parliamentarians] believed it was their own money they were fighting for.’ Surely they’re dreamin’ … or are they?

In this blog post I will briefly comment on the seemingly odd character of the constitutional challenge, explaining why Cunningham is not in fact that odd as far as s 51(xxxi) cases go. I will then offer a few remarks on what the commonplace character of challenges of this kind tells us about the broader challenges that confront the High Court’s jurisprudence in this area, and why the Court didn’t exactly tell the plaintiffs to ‘dream on’.

‘Property’ protected by the constitutional guarantee

In reality, cases like Darryl Kerrigan’s — which involve straightforward real property interests — are atypical for Australian constitutional property law. Australian constitutional property law much more frequently Continue reading

Greyhounds, Michael McHugh and the Integrity of the Judiciary

By Gabrielle Appleby and Alysia Blackham

On 16 June 2016, retired High Court judge, the Hon Michael McHugh AC QC delivered his report as Commissioner of a Special Commission of Inquiry into the Greyhound Racing Industry in NSW. The report found ‘overwhelming evidence of systemic animal cruelty, including mass greyhound killings and live baiting’, and concluded that the industry had ‘fundamental animal welfare issues, integrity and governance failings that can not be remedied.’ Relying on the report, the NSW Government moved to shut down the greyhound racing industry, with legislation introduced to effect a full closure by 1 July 2017. In a move described by the NSW Opposition as the ‘mother of all backflips’, the NSW Premier has now confirmed that greyhound racing will not be banned after all, with ‘tough penalties’ to be introduced to ensure animal welfare instead.

Banning greyhound racing is a politically and emotionally charged issue. Prior to the government’s backflip, the NSW Greyhound Racing Industry Alliance criticised the Special Commission of Inquiry report as being ‘biased and seriously flawed’. It argued that racers and trainers were denied procedural fairness. There were allegations that the report was a ‘stitch up’, with the result predetermined by NSW Premier Mike Baird. The greyhound industry even brought a claim in the NSW Supreme Court, seeking to have the report declared invalid. Others applauded the ban, and saw Continue reading

News: Another NSW-Vic schism amongst special leave grants

It is always hard to predict the outcome of special leave applications, but one category of appeal comes close to a certainty: cases where Australian courts have divided on the meaning of a single, important statute. Earlier this year, the High Court (in a divided decision of its own) entered into a key dispute between the NSW and Victorian courts about the meaning of Australia’s ‘uniform’ evidence law, and last month the Court took on a case dealing with a second dispute between those courts about that law. Last week, the Victorian Court of Appeal decided not to follow the NSW Court of Criminal Appeal on the precise role of guilty pleas in federal sentencing, guaranteeing that the issue will reach the High Court soon. This month, the sole grant of leave ‘on the papers‘ was a pair of cases where the NSW and Victorian courts reached different views on the fault element of federal drug offences.

The Court’s new process continues to be unpredictable. For the first time since the process began, the Court held two oral hearings – these were held, unusually, in separate weeks, and yielded five more special leave grants. The Court’s written dispositions refusing leave continue to be very uninformative. One exception was the Court’s refusal of a NSW criminal appeal, which included the Court’s view that the NSW Court of Criminal Appeal was right to apply the High Court’s House ruling (requiring an error of law before a decision can be reviewed) to a trial judge decision; alas, the NSW case is (for now) suppressed, so the public is none the wiser about the nature of this ruling. Chief Justice French continues to play no role in the Court’s written dispositions, but participated in (at least) the first oral hearing.

The six matters where leave was granted are appeals from the following decisions: Continue reading

Ainsworth v Albrecht

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal relating to the alteration of the rights of lot owners to common property in a community titles scheme. The appellants and first respondent are owners of lots in the community title scheme at Viridian Noosa Residences. When the first respondent sought to amalgamate two balconies on his lot, which would require his exclusive use of the common property airspace between the balconies, the body corporate rejected the request. Following a ruling by an adjudicator, which was overturned by QCAT, the QCA restored the adjudicator’s initial ruling, holding that the adjudicator’s role was not limited to asking whether the present appellants’ objections (and those of the architect) were reasonably Continue reading

Cunningham v Commonwealth

The High Court has decided a constitutional matter on the annual allowance payable to retired members of parliament. The plaintiffs, four retired ALP and LNP MPs, challenged the validity of various provisions of statutes relating to retirement allowances and travel benefits (‘Life Gold Passes’) for former parliamentarians and the powers of the Remuneration Tribunal. The plaintiffs contended that those allowances amounted to property rights within the meaning of s 51(xxxi) of the Constitution, and that changes to those provisions and the connected tribunal Continue reading

Prince Alfred College Inc v ADC

The High Court has allowed an appeal against a decision of the Full Court of the South Australian Supreme Court on vicarious liability of a school for an employee’s child sexual abuse offences. While a student at Prince Alfred College, the appellant was sexually assaulted multiple times by a boarding house master, Bain, who was dismissed once the school learned of the abuse, and who had previously been convicted of gross indecency and suspected of abusing students at a previous school. The appellant contended that the school was vicariously liable for Bain’s abuse, and that it was negligent in failing to make proper and adequate inquiries into Bain’s suitability for employment. The SASCFC overturned the trial judge’s decision to dismiss the action, Continue reading

Lyons v Queensland

The High Court has dismissed an appeal against a decision of the Queensland Court of Appeal on whether preventing a deaf person from serving on a jury constitutes discrimination. The appellant, who is deaf, is a proficient lip reader, but requires an Auslan interpreter when communicating with people who do not know Auslan. After being called for jury service, the appellant notified the Deputy Registrar that she required an Auslan interpreter, after which the Deputy Registrar excluded the appellant as a potential juror under s 4(3)(l) of the Jury Act 1995 (Qld) which precludes a person with a ‘physical or mental disability that makes the Continue reading

News: Re-reading Monis v the Queen

The High Court’s judgment, Monis v The Queen [2013] HCA 4, concerns the meaning and validity of the federal government’s ban on offensive postal communications. However, the case is known for many more things: the extremity of the communications sent by the defendants to bereaved families condemning the deceased’s involvement in military operations; the rare evenly divided High Court ruling, upholding the NSW Court of Criminal Appeal’s dismissal of the defendants’ pre-trial challenge to the statute’s constitutionality; Justice Dyson Heydon’s final judgment, quoting Kipling’s My Boy Jack and condemning the implied freedom of political expression as he applied it (one of the ‘great dissents’ nominated in Andrew Lynch’s edited collection); later accusations against the defendants of much more serious crimes; and, finally and most dramatically and sadly, Man Haron Monis’s killing of two people (and his own death) during the siege of Martin Place’s Lindt Cafe.

It is not surprising that the case continues to draw academic attention. The latest instance is an entire book devoted to the case. Continue reading

Murphy v Electoral Commissioner

The High Court has decided a constitutional matter challenging the Commonwealth Parliament’s power to legislate to suspend the processing of claims for enrolments to vote and transfers of enrolments to vote from seven days after the issue of writs for an election. The plaintiffs argued that the principle in Rowe v Electoral Commissioner [2010] HCA 46, in which the Court held that Parliament could not close the rolls on the day the writs are issued, should be extended up to polling day (or, at least, more than the current seven day period), and that the current arrangements contravene the requirements contained in ss 7 and 24 of the Constitution. Central Continue reading

News: “The Castle in reverse”, a coda to DPP (Cth) v Poniatowska

A sad coda to the High Court’s decision in DPP (Cth) v Poniatowska emerged recently. Malgorzata Poniatowska has had two major litigation successes, but each has been followed by setbacks. Her first success, obtaining a historic payout for sexual harassment from her former employers in a building consultancy, was followed by her prosecution for fraud charges for allegedly failing to inform Centrelink of the commissions she earned from that consultancy. Her second success, obtaining a landmark ruling from the High Court quashing her conviction (together with many other social security prosecutions), was soon followed by a negative story on Channel 7’s Today Tonight:

Matt White: First, this evening, a legal landmark in the High Court has forced Centrelink to close a loophole that will allow people to claim welfare they shouldn’t get. An Adelaide woman has shot down Centrelink, avoiding prosecution for claiming $20,000 in single parent benefits she wasn’t entitled to. As David Richardson reports, it’s a case that has shifted the goal post, and sent the government back to the drawing board.
Reporter: Every year, Centrelink goes hunting for cheats – 4 million entitlements reviewed, 640,000 payments reduced, 3400 cases convicted. They don’t miss much – until today.
Warren Moore: Instead of the average person being the winner, you’ve got one woman taking money from the average taxpayer.
Reporter: Meet the cheat who got away: she confessed to defrauding them, then she beat them.

She responded by suing Channel 7 for defamation and, recently, lost, badly.

Continue reading

News: ‘Hey Dad!’ case one of six special leave grants

The High Court’s August round of special leave deliberations has yielded six grants of leave to appeal, following a very slow start:

  • Wednesday 24th: None out of 3 applications granted (on papers, Bell & Keane JJ)
  • Thursday 25th: None out of 7 applications granted (on papers, Nettle & Gordon JJ)
  • Tuesday 30th: None out of 8 applications granted (on papers, Bell & Gageler JJ)
  • Wednesday 31st: None out of 6 applications granted (on papers, Bell & Keane JJ)
  • Thursday 1st: 3 out of 21 applications granted (on papers, 7 Kiefel & Keane JJ (no grants),  7 Kiefel & Nettle JJ (1 grant), 7 Gageler & Gordon JJ (2 grants))
  • Friday 2nd: 3 out of 7 applications granted (oral hearings; 4 Kiefel & Nettle JJ (2 grants), 3 Gageler & Gordon JJ (1 grant)). (There was also a further matter where leave was granted and the appeal allowed, by consent of the parties.)

As usual, French CJ did not decide any special leave matters. As per recent practice, the pairs of judges assigned are no longer always geographically connected. One interesting development is just two pairs of judges were responsible for all six grants (both written and oral), with Gageler  & Gordon JJ responsible for all the criminal grants and Kiefel & Nettle JJ responsible for all the civil grants. There also appears to be a slight increase in information included with the refusals, for example Bell & Gageler JJ’s refusal of leave to Matthew and Elizabeth Pallet, campaigners in favour of medical cannabis, which indicates that their unsuccessful argument was a constitutional challenge to Victoria’s drug laws.

The six cases in which grants were made are: Continue reading

Maritime Union of Australia v Minister for Immigration and Border Protection

The High Court has decided a challenge in its original jurisdiction to two ministerial determinations on ‘offshore resources activity’ and associated vessels, both of which impact on the visa conditions of non-citizens involved in work in various offshore resources industries. The initial challenge was to the Minister’s decisions made in March 2015 under ss 9A(6) and 33(2)(b)(ii) of the Migration Act 1958 (Cth), which respectively empower the Minister to make a determination to define an Continue reading

The Queen v Baden-Clay

The High Court has allowed an appeal against a decision of the QCA to substitute a conviction of murder for one of manslaughter on the basis of the jury’s verdict being reasonable. Baden-Clay was found guilty of the murder of his wife by a jury after a trial at which he gave evidence that he did not fight with her, kill her or dispose of her body. On appeal, the QCA held that while the evidence supported a finding that Baden-Clay had killed his wife, it did not allow it to be satisfied beyond reasonable doubt that he had intended either to kill her or cause her grievous bodily harm, and specifically that the prosecution had not excluded the hypothesis that Baden-Clay had fought with his wife without intent to kill or cause grievous bodily harm and in the course of that Continue reading

NH v DPP; Jakaj v DPP; Zefi v DPP; Stakaj v DPP

The High Court has allowed four appeals from a judgment of the Full Court of the Supreme Court of South Australia on jury procedures. After it emerged that the jury foreman may have misunderstood the trial judge’s question about whether or not ten or more of the jury had voted to find the appellants not guilty of murder, the DPP applied for orders to expunge or quash those verdicts, the judgment of acquittal, and the alternative convictions of manslaughter returned by the jury, and an order for a new trial on the murder charges. A majority of the SASCFC Continue reading

News: Claim Baden-Clay judgment sets a ‘massive precedent’

R v Baden-Clay [2016] HCA 35 is one of the High Court’s most-watched judgments, at least by non-lawyers. Indeed, this morning’s announcement of the Court’s orders in its Canberra premises was live-blogged on at least two Brisbane websites, so readers at home knew of the outcome some 15 minutes before the Court posted its judgment summary on its website. The rather brief proceeding (including other judgments and a hearing in a current appeal) was attended by friends of Baden-Clay’s victim, who told the media:

The law has acknowledged what we, who were closest to her, knew from that very morning Allison went missing — that is — that she was murdered… Today’s decision brings an end to Gerard’s attempts to smear Allison’s name. If some were in doubt as to his true nature, his behaviour after Allison disappeared and during the trial must have removed that doubt.

All of these matters were established by the jury’s verdict, but in Australia’s criminal justice system, appeal courts can sometimes second-guess the jury. In today’s judgment, the High Court firmly second-guessed the Queensland Court of Appeal’s second-guessing and also closed off all regular avenues for future second-guessing in the courts.

But some lawyers commenting on the decision have attributed more to today’s decision. Baden-Clay’s lawyer told the media: Continue reading

Deal v Father Pius Kodakkathanath

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal concerning workplace accident compensation and the connections between tasks and anticipated risks. The appellant, a primary school teacher, was injured after falling from a small step-ladder while removing artwork from a wall at the school. Regulation 3.1.2 of the Occupational Health and Safety Regulations 2007 (Vic) requires that an employer ensure that the risk of a musculoskeletal disorder ‘associated with’ a Continue reading

Sio v The Queen

The High Court has allowed an appeal against a decision of the New South Wales Court of Criminal Appeal on the unreasonableness of a conviction for armed robbery with wounding in light of that conviction’s inconsistency with an acquittal for murder, and on the use of a convicted criminal’s statements to police in convicting an accomplice. At trial, the appellant was acquitted of murder, but convicted of one count of armed robbery with wounding for his role in the robbery of a brothel by his co-offender, who stabbed and killed an employee of the brothel. The co-offender had made a statement to police that alleged the appellant had driven and encouraged him to commit the robbery, but did not testify at the defendant’s trial. The NSWCCA held that Continue reading

Miller v The Queen; Smith v The Queen; Presley v DPP (SA)

The High Court has allowed three appeals against a decision of the South Australian Supreme Court on the extended joint criminal enterprise doctrine of complicity, in the context of a murder conviction. Miller and two others were convicted of murder through extended joint criminal enterprise for their involvement in a confrontation in which a fourth man, Betts, stabbed and killed one of the victims. The SASC rejected Miller’s arguments that the verdict was unsafe because the trial judge had erred in misdirecting the jury by leaving open extended joint criminal enterprise in relation Continue reading

News: High Court rejects challenge to Australia’s common law of complicity

Today, a 6-1 majority of the High Court upheld a 6-1 majority decision of the same court a decade ago to not revisit a unanimous decision of the same court 21 years ago, whose effect is eloquently described in Gageler J’s judgment as follows:

Three men set out to rob a bank. They adopt a simple plan. One of them, the driver, is to wait in the car. The other two are to enter the bank. One is to wave a gun. The other is to put the money in a bag. The two who enter the bank encounter a security guard. The gunman shoots him and he dies. Who of the three is liable for murder? The traditional answer of the common law is that the criminal liability of each depends on the intention of each. The gunman is liable for murder if he shot the security guard intending to cause death or grievous harm…. But what if shooting to kill or cause grievous harm was never part of the plan? The gunman went too far. The gun was not meant to be loaded. The gun was meant only to frighten….  The common law has of late given a different answer. The bagman and driver need not have intended that the gunman would shoot to kill or cause grievous harm as a possible means of carrying out the plan to rob the bank. It is enough for them to be liable for murder that they foresaw the possibility that the gunman would take it upon himself to shoot to kill or cause grievous harm and that they participated in the plan to rob the bank with that foresight.

Whereas the Privy Council and the Supreme Court of the United Kingdom ruled that the ‘common law of late’  was a ‘wrong turn’, the High Court today disagreed. Continue reading

News: Vale James Merralls AM QC

We were deeply saddened at Opinions on High to read of the death of Mr James Merralls, AM QC, editor of the Commonwealth Law Reports for the last forty seven years. The High Court issued a press release celebrating the considerable achievements of Mr Merralls:

Mr Merralls was the editor of the Commonwealth Law Reports, the authorised reports of the decisions of the High Court of Australia, for 47 years commencing in 1969. His unsurpassed period as editor was one of great public service to the Court, the profession and to the administration of justice in Australia. The high standard of his work as editor has been publicly acknowledged by two former Chief Justices of the Court, Sir Anthony Mason and Chief Justice Murray Gleeson. Mr Merralls, who served as an associate to another Chief Justice of this Court Sir Owen Dixon, rose to become a leading member of the Victorian Bar with a national reputation. He will be greatly missed.

I first came to know Mr Merralls after I sat next to him at a conference lunch about four years ago, although I had already known of him by reputation while in practice and when working at the Victorian Supreme Court. He was a polite and humble man who always stopped to say hello when he saw me; a gentleman. To my delight, it became evident that he was a reader of this blog, and he would engage me in debate about posts.

Mr Merralls’ humility did not stop others from recognising his considerable skills, and in 2013, he was awarded an Honorary Doctorate in Laws by the University of Melbourne. Then, in 2014, a Visiting Fellowship in Law was established at Melbourne Law School in Mr Merralls’ honour.

We extend our deepest condolences to Mr Merralls’ wife and children.

Coralling the penalties horse: Paciocco v Australia and New Zealand Banking Group Ltd

Paciocco v ANZ Case Page

It’s said that you can’t shut the stable door after the horse has bolted, but this presumes that there is only one door. If there is a gate on the field around the stable, then the horse can be successfully corralled by shutting the second door, even if the first door is left wide open. And in Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28, the High Court effectively shut a ‘second door’ to prevent the penalties doctrine from escaping. The ‘doors’ are the two questions a court must ask when establishing whether a clause is a penalty and thus void or unenforceable:

  1. Is this a clause to which penalties doctrine applies?
  2. On the facts, is this clause a penalty?

The first door had been left ajar in Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30, potentially allowing the penalties doctrine to invalidate (at least partially) a wider range of clauses. This post will focus on the penalties doctrine rather than on the statutory claims of the appellants. It is suggested that after Paciocco there will only be a very small number of cases where plaintiffs can successfully challenge contractual clauses as void or unenforceable penalties. The Court’s findings regarding the question of whether a specific clause was a penalty indicate that the second door has been closed so that only the tiniest crack remains. This will be a relief for organisations such as banks and utility companies as they will have greater latitude to charge late payment fees. And it will provide particular relief for construction contractors, who were concerned that abatement provisions (often used in PPP or Public Private Partnerships) and time bar provisions would be penalties pursuant to Andrews. Continue reading

News: Former High Court judge rules on high profile NZ murder case

In a report published on Tuesday, former Australian High Court judge Ian Callinan found that New Zealander David Bain ‘has not proved on the balance of probabilities that he did not kill his siblings and his parents on the morning of the 20th of June 1994.’ While the judge’s career since leaving the High Court in 2007 has been characterised by government-commissioned reports (as well as sitting on an International Court of Justice dispute between Australia and East Timor), this is surely the first occasion that a retired High Court judge has played the role of judge of fact in a murder case. The Bain case, which turns on the question of whether David Bain shot his parents and three siblings at an isolated farm near their house in Dunedin (for no known motive), or whether Bain’s father committed a murder-suicide (possibly fearing revelations of abuse of his only youngest daughter) while his eldest son was on a paper run, has long divided New Zealanders. Remarkably, it has also been the subject of three controversial interventions by overseas judges. Continue reading

News: 5 new appeals under amended High Court Rules

On 1st July, amendments to the High Court’s rules took effect, including an all new Part 41 on special leave applications. Amongst other changes, the new rules consolidate the application for leave and the summary of argument into a single document (effectively halving the time for lodging all the documents from 56 days to 28 days, and subjecting the totality to a single page limit) and omit existing separate rules on unrepresented applicants and oral arguments in favour of a single rule permitting ‘any 2 justices’ to determine any applicants without an oral hearing.The explanatory memorandum states that ‘[c]onsultations on the changes have taken place with relevant professional organisations and the Special Committee of Solicitors-General.’

One result of the new rules is that there is no longer any public indication as to whether a particular applicant for special leave was represented or unrepresented (as all applications are now determined under new rule 41.08.1.) Rather, all we know is that there were:

  • 32 matters determined without a hearing (2 grants, 30 rejections), heard by Nettle & Gordon JJ (10 matters), Gageler & Gordon JJ (5 matters), Kiefel & Keane JJ (7 matters), Kiefel & Nettle JJ (4 matters) and Bell & Gageler JJ (5 matters), shaking up the previous wholly geographical pairings of judges. French CJ continues to play no role in these determinations.
  • 8 matters determined with a hearing (4 grants, 4 rejections), held in Brisbane (even though none of the matters heard were from Queensland.)

Although the Court’s  2016 calendar describes today is a ‘special leave date’,  no leave applications seem to be listed for determination today. Under the Court’s new approach, dedicated special leave dates are becoming a thing of the past, as, increasingly, are Court sittings in Australia’s two largest cities.

The five judgments that will now be reviewed in the second half of this year by the apex Court are: Continue reading

News: What happened after Smith v WA [2014] HCA 3?

In Smith v WA [2014] HCA 3, the High Court unanimously ordered the Western Australian Court of Appeal to reconsider an appeal by a man who sought to have his conviction for indecent dealing with a child set aside because of a note found in the jury room after the verdict that stated ‘I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel’. The High Court held:

The shadow of injustice cast on the verdict by the note cannot be dismissed on the basis that the note itself and the paucity of evidence of its provenance are insufficient to create a suspicion that, as a matter of fact, the author of the note was overborne in the performance of his duties as a juror.

The Court observed that the identity of the author could be readily discerned, the note’s true meaning could be readily resolved by asking the author, that a wide-ranging and intrusive inquiry would not ‘necessarily’ follow and that the practicality of any inquiry, given the time since the early 2012 trial, is a matter for the Court of Appeal. Nearly two-and-a-half years later, a judgment published today by the WA court reveals how these predictions played out and how the appeal stands (for now.) Continue reading

Paciocco v Australia and New Zealand Banking Group Ltd

Katy Barnett, ‘News: Bank Fees Back to High Court’ (9 April 2015)

The High Court has dismissed an appeal from a decision of the Full Federal Court on the lawfulness of late payment fees for credit card and business bank accounts. The appellant, a business owner and head of the representative proceeding, argued that various late payment fees were penalties and/or unconscionable or unfair and contrary to various provisions Continue reading

Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI

The High Court has allowed an appeal against two decisions of the Full Federal Court relating to the procedural fairness implications for asylum applications following a ‘data breach’. On 10 February 2014, a ‘data breach’ incident occurred, in which the names and personal details of over 9,000 asylum seekers were made publicly available on the Department of Continue reading

Graham v The Queen

The High Court has dismissed an appeal against the Queensland Court of Appeal on the effect of jury misdirections in the context of self-defence. The appellant shot and wounded a rival bike gang member, Teamo, and a bystander at a shopping centre, after Teamo produced a flick knife. The appellant was convicted by the jury of attempted murder and of wounding the bystander with intent to wound Teamo. The appellant contended that Continue reading

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on collateral contracts and estoppel. Crown leased two premises to Cosmopolitan for five years on the understanding that Cosmopolitan would complete significant refurbishments and, allegedly, that in exchange for the refurbishment Cosmopolitan would receive an extension of the lease for another five years. After the leases expired, Crown did Continue reading

The High Court and the facts of sentencing: Nguyen v R and Betts v R

Australia’s law students are currently sitting their first semester exams. Some of them might be examining hypotheticals like this one:

D shot and wounded the V, who was a police officer, while V was lawfully executing a search warrant in company with other police officers on premises in close proximity to D’s home. The shot struck V in the arm, thereby causing him a serious but non-fatal gunshot wound. In the course of the fire-fight which ensued, one of the other police officers fired a shot which was intended for D, but which unfortunately instead hit V in the neck, thereby inflicting a wound from which he later died. Assume that when D fired at V, D honestly believed that V was someone posing as a police officer who was intent on robbing the D and might have posed a serious risk to the D’s safety.

That exam question could earn the examiner congratulations for her inventiveness, but the next one would probably earn her a meeting with her Dean:

D moved to stab V in the chest but she asked him not to stab her there and he rolled her over and stabbed her a number of times in the back. V believed her only chance to escape was to calm D and weaken him. She said, “If we are going to do this together, then I should have a turn with the knife.” The tip of the knife D then had had broken and was embedded in V’s back so D grabbed another knife from the kitchen, handed it to V and said “Okay” and lay on his back. V stabbed D in the stomach, giving an extra shove to make sure the knife was in deep and she twisted it. It appeared that some of D’s intestines came out, D remarking “That was a good one.”

Adding further details – that D was a former contest on Australian Survivor and that, during D’s attack, a real estate agent entered the flat to open it for inspection, saw ‘red liquid’ everywhere, and left, seemingly without calling the police – may well leave the lecturer without a job. But, as Mark Twain is reputed to have said, ‘the difference between fact and fiction is that fiction must be believable.’ Or, as the late Han Solo said, ‘it’s true, all of it’.

The victims of crime in the above two cases were Bill Crews, a 26 year-old police constable whose parents recounted to the coroner their surprise and pride when their son told them three years earlier that he had got in to the police force and then sat and watched video of his last moments, and Samantha Holland, aged 23 at the time, who was stabbed at least 26 times before she escaped over a balcony and will suffer physical and psychological scars for life, and who sobbed in court as her ex-boyfriend was sentenced. The defendants were Phillip Nguyen, then 55, whose first wife was murdered a decade earlier and whose second marriage failed while he was on remand for killing Crews, and Joel Betts, then 30, a victim of childhood sexual abuse and violence who faces a lifetime of incontinence due to the bowel injury he incurred while stabbing Holland. Each recently lost their final appeals in the High Court. Because both defendants pleaded guilty, the Court’s task was not the criminal law student’s task of applying the rules of criminal responsibility to these strange facts. Rather, the nation’s top judges faced an infinitely harder task: assessing whether the punishment each offender was given fitted their unusual crimes. Continue reading

News: Latest special leave cycle yields five new appeals

The past month has produced five grants of special leave, as follows:

  • 25th May (non-oral): 2 grants, no refusals (Nettle & Gordon JJ)
  • 9th June (non-oral; 8 unrepresented matters, 1 represented): no grants, 9 refusals (Nettle & Gordon JJ)
  • 15th June (non-oral; 11 unrepresented, 10 represented): no grants, 21 refusals (Kiefel & Keane JJ)
  • 17th June (non-oral, 6 unrepresented, 4 represented, 1 unknown): 1 grant, 10 refusals (Bell & Gageler JJ)
  • 17th June (oral): 2 grants, 4 refusals

This month continues the previous trend of non-oral matters being divided amongst three pairs of geographically linked judges, i.e. the Victorian judges (Nettle & Gordon JJ), the Queensland judges (Kiefel & Keane JJ, who received a double load this month) and the NSW/ACT judges (Bell & Gageler JJ), with French CJ again not participating in any non-oral leave matters. Presumably, these pairings suit practical arrangements within the Court, but they also potentially skew leave grants, to the extent that these various pairs see things eye to eye more than other pairs (or French CJ.) The oral matters continue to also be heard by pairs of judges (rather than three, as might be expected if two judges had previously disagreed on the written merits), but the oral pairs don’t match the non-oral ones. This month also sees the Court’s listings all referring to ‘matters for determination’, rather than for publication of reasons or not, and hence no longer indicating results in advance of the Court’s sittings.

The five matters granted leave to appeal are as follows: Continue reading

Betts v The Queen

The High Court has dismissed an appeal against a sentencing decision of the New South Wales Court of Criminal Appeal after it allowed an appeal against sentence because of errors in the characterisation of aggravating factors. The appellant was convicted of attempted murder and kidnapping following a murder-suicide attempt on his former partner, in which he repeatedly stabbed her over a prolonged period of time, and sentenced to 16 years imprisonment with a non-parole period of 11 years. Continue reading

Alqudsi v The Queen

The High Court has dismissed a motion on a cause removed from the New South Wales Supreme Court relating to constitutional requirements for trials in the context of a trial for terrorism recruitment offences. The applicant is charged with seven offences against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), which makes it an offence for a person to give money, goods or services to a person or body for the purpose of supporting or promoting the commission of an incursion into a foreign country to engage in hostilities (on which see also s 6 of the Act). Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the applicant made a motion to be tried by a judge only. Section 80 of the Commonwealth Constitution, however, provides that trials on indictment for Commonwealth offences ‘shall be by jury’. Following an application by the Commonwealth Attorney-General, French CJ ordered that part of the cause be removed into the High Court to determine the following question:

Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant’s trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution?

Continue reading

Hall v Hall

The High Court has dismissed an appeal from the Full Family Court on spousal maintenance and the meaning of support and ‘financial resources’ under the Family Law Act 1975 (Cth). In late 2013, the primary judge made an interim spousal maintenance order of approximately $10,000 per month pending the final determination of a property settlement and maintenance proceedings between the appellant wife and respondent husband, on the basis that the wife was ‘unable to support herself adequately’ as per s 72 of the Family Law Act. The recently deceased father of the wife had expressed a ‘wish’ that she be paid $150,000 per year Continue reading

Robinson Helicopter Co Inc v McDermott

The High Court has allowed an appeal against a decision of the Queensland Court of appeal on negligence and manufacturer’s liability for defective goods in the context of a helicopter crash. The first respondent was severely injured in 2004 when a helicopter manufactured by the appellant crashed due to a loose bolt in the helicopter’s flexplate. The respondents claimed that the maintenance manual provided by the appellants gave inadequate instructions on the method for checking the tightness of the bolts, contrary to the law of negligence and ss 75AD and AE of the Trade Practices Act 1974 (Cth). The trial judge found that the manual was adequate in requiring torque seals Continue reading

Dictators, Discretion and Systems of Public Law: Bell Group NV (in liq) v Western Australia

By Martin Clark

Bell Group Case Page

The High Court’s judgment in Bell Group was a nice rendition of the well-told story about s 109 of the Constitution. Section 109 provides that ‘[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’ Western Australian passed a law to create a body that was empowered to finally determine the liabilities owed to various creditors of the Bell Group companies in the fallout of their liquidation, the long saga of which is detailed by Katy Barnett here and here. The High Court held that this law was invalid because it conflicted with the federal tax laws, which created the rights of and liabilities owed to another government and another office holder in relation to these companies: the Commonwealth and the federal Commissioner of Taxation. As I wrote shortly after the decision came down, the plurality judges (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ) held that:

The Authority’s purportedly absolute discretion to determine the existence of a liability of a WA Bell Company and to quantify that liability and the Governor’s powers to extinguish liabilities that would otherwise be owed to the Commonwealth meant that the Bell Act effectively created a scheme that stripped the Commonwealth’s tax debts of their existence, quantification, enforceability and recovery under the Tax Acts (at [57]–[60]). Because it overrides the Commonwealth’s rights under the Tax Acts as a creditor of the WA Bell Companies, the Bell Act alters, impairs or detracts from the rights accrued to the Commonwealth under the Tax Acts (at [61]).

The day after the High Court handed down Bell Group I heard the eminent British historian Gareth Stedman-Jones speak on the meaning of ‘dictatorship’. What followed was a great rendition (which I’ll recollect poorly shortly) of a well-told story in the history of political thought — the origins and development of the office of ‘dictator’ in Rome and beyond.

In this post, I attempt to make the otherwise fairly routine decision in Bell Group a little more interesting by framing it around the content of Stedman-Jones’s paper. This might seem a bit esoteric: what could the two have to do with each other? But I think that bringing Bell Group and the idea of ‘dictator’ together suggest one way in which the case is interesting: as a modern Australian episode in the long global history of the relation between discretion and systems of law. That relation is of fundamental importance to public law in general, and reflects some foundational aspects of the Australian constitutional system that were at play in Bell Group. Continue reading

News: Wigs in the High Court

At the start of this month, the judges of Victoria’s Supreme Court all stopped wearing wigs. A similar (but broader) decision was made by the High Court in 1988:

As of today, Tuesday, 2 August, the Chief Justice and Justices of the High Court of Australia will wear black gowns when sitting in court instead of the traditional attire of a robe, jabot and wig.

While the Victorian decision was a statutory determination by the state’s Chief Justice, the High Court’s decision was not made under any statute and involved no new rules or practice directions; the Court’s seven judges simply all entered the courtroom wigless, as Murphy J and (for a time) Starke J had individually decided in the past. The Court’s press release was careful to disclaim any implications for other Australian courts:

This decision is not intended to establish a model for other courts. The fact that the High Court is a constitutional and appellate court and not a trial court has been significant in the decision to alter the dress. Different considerations may well apply to other courts. The nature of their work, particularly that of trial courts, differs from that of the High Court.

By contrast, in the case of barristers’ wigs, decisions by other Australian courts, including this week’s direction from Victoria’s common law division that barristers appearing there must do so without wigs, can directly affect what barristers wear in the High Court.
Continue reading

News: Bell Group litigation – harder to kill than a Hydra

In September 2013, it appeared that the Hydra had finally been slain: the long-running, complex and expensive Bell Group litigation had settled just before the hearing of an appeal to the High Court. However, just like the Hydra of myth, it appears that where one head of litigation is cut off, at least one other will grow. The High Court has just ruled in Bell Group N.V. (in liquidation) v Western Australia [2016] HCA 21 that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) (‘Bell Act’), under which the $1.7B settlement sum was sought to be distributed, is constitutionally invalid. The legislation was rushed through the Western Australian parliament last year, but last-minute amendments made in April this year were insufficient to save it. It seems likely that the Bell litigation will continue, as litigation had previously been both threatened and commenced after settlement and prior to the enactment of the Bell Act.

Attribution: Wolfgang Sauber

Attribution: Wolfgang Sauber

Continue reading

News: Uber’s legality turns on 1929 High Court decision

Wednesday’s ruling by Victoria’s County Court quashing the conviction of an Uber driver in a test prosecution has been reported as confirming the legality of the Uber X service in Victoria, avoiding the need for drivers and vehicle owners to obtain expensive commercial licenses. A curiosity of this week’s ruling is the role of,a High Court decision on the Uber X of 1929 Victoria (and the first ever High Court judgment of Justice Owen Dixon.)

In Blyth v Hudson [1929] HCA 3, the High Court considered the legality of a transport service from Geelong to Melbourne. The driver, George Hudson, who had been refused a commercial licence to operate a ‘motor omnibus‘ – a service for ‘carrying passengers for reward at separate and distinct fares for each passenger’ – struck a deal with the Geelong Motor Tourist Bureau, which arranged for shopkeepers to sell tickets for his service and then pay him a lump sum to drive anyone who showed up with a ticket. When he was prosecuted by William Blyth (the Country Roads Board’s Chief Inspector,) Victoria’s Supreme Court ruled that the definition of motor omnibus should be read strictly so that it didn’t cover fares paid to intermediaries, but the High Court (including Dixon J) disagreed, prophetically emphasising the need for flexibility to effectively regulate a fast-changing sector of the economy: Continue reading

News: New special leave process yields five new appeals

Last Friday was the High Court’s official special leave day for May. However, there were no special leave hearings that day and no determinations either. Rather, May special leaves were determined on three days:

  • Two Thursdays ago, when 2 matters received leave and 11 (including 4 unrepresented matters) were refused, all decided on the papers by Nettle & Gordon JJ.
  • Last Thursday, when 1 matter received leave and 13 (including 6 unrepresented matters) were refused, all on the papers by Bell & Gageler JJ.
  • This Monday, when 2 matters received leave and 5 were refused, all after listed oral hearings.

So, that is a total of 5 grants and 29 rejections, out of 7 oral hearings, 17 represented non-oral matters and 10 unrepresented non-oral matters.

This month, we have learnt a little more about the Court’s new process. Continue reading

Bell Group NV (in liq) v Western Australia; WA Glendinning and Associates Pty Ltd v Western Australia; Maranoa Transport Pty Ltd (in liq) v Western Australia

The High Court has decided a constitutional matter on the validity of a state law, the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA), which aimed at providing a legislative framework for the dissolution and administration of the property of the Bell Group Ltd (the Bell Act). Following the collapse of the Bell Group and a number of its subsidiaries (the WA Bell Companies), the Western Australian parliament enacted a law to collect the remaining property of each of these companies to be then transferred to and vested in a fund that was to be administered by a statutory authority (see [20]ff). The Commonwealth was a substantial creditor of several WA Bell Companies, including for pre-liquidation tax debts and post-liquidation liabilities. The Bell Act required the Authority to determine the property and liabilities of each Continue reading

Day v Australian Electoral Officer for the State of South Australia; Madden v Australian Electoral Officer for the State of Tasmania

The High Court has dismissed a constitutional matter challenging changes to the ballot papers to be used in the election of Federal Senators. Recent amendments to the Electoral Act 1918 (Cth) allowed electors to vote ‘above the line’ on the Senate ballot paper by numbering at least six squares sequentially. The list of candidates marked ‘1’ will be allocated preferences in the order in which they appear, then followed by the list of candidates marked ‘2’, and so on. Continue reading

News: Court accused of undermining suppression order

Sunday’s Northern Territorian included the following story (HT: Twitter @dunlop_craig):

THE High Court has published, and later removed, a document which bares the name of an alleged Northern Territory paedophile, whose identity is the subject of an NT Supreme Court suppression order. The document, a case chronology, was downloaded repeatedly by the NT News last week, but was switched out with a redacted version late on Saturday night, around the time inquiries were sent to court staff.

The NT News states that the case was IMM v R, a very significant ruling on Australia’s uniform evidence law where the Court issued a complex judgment last week. Like most High Court evidence law cases, the facts involved alleged child sexual abuse and the adult defendant’s name was most likely suppressed to protect the identity of the complainant. That being said, the Court did not suppress the man’s name when the case was initially listed for a special leave hearing and the court list for that day (which is still hosted by the Court but not hyperlinked from the Court’s website) still contains his surname. [EDIT: see the first comment below.]

The ‘chronology’ mentioned in the report is likely to be the one supplied by the appellant and published (now without the defendant’s name) by the Court on its website here. Continue reading

Military Rehabilitation and Compensation Commission v May

The High Court has allowed an appeal against a decision of the Full Federal Court on workers compensation and the meaning of ‘injury’ in the Safety, Rehabilitation and Compensation Act 1988 (Cth). The appellant, a former RAAF officer cadet, began to experience symptoms similar to vertigo that could not be diagnosed specifically, and which gradually arose after he received various vaccinations during the course of his employment. The FCAFC held that the Tribunal and a single Federal Court judge erred in concluding that the established definition of injury as a Continue reading

Badenach v Calvert

The High Court has allowed an appeal against a decision of the Supreme Court of Tasmania on the professional duties of lawyers in the context of a will dispute. The first appellant, a solicitor, prepared a will that was to pass all of the testator’s estate to the respondent. After the testator died it emerged that the appellant’s firm (the second appellant here) had prepared two wills in 1984, one of which included a bequest to an estranged daughter. The daughter successfully sued for a maintenance provision out of the estate and was awarded a significant portion of it plus legal costs. The respondent then Continue reading

News: Reading the special tea leaves

We are now nearly two months into the High Court’s new process for determining special leave applications. Pending a fuller review after Friday’s hearings, a potential pattern has emerged that may reveal, a day in advance of the Court’s formal ruling, whether cases that have been listed for orders without an oral hearing will be granted special leave. If correct, then that means that there is a sign this evening that special leave will be granted tomorrow morning in the high profile appeal by Queensland prosecutors against an appellate ruling by that state’s Court of Appeal reducing Gerard Baden Clay’s conviction for murder to manslaughter. Continue reading

News: Court ruling on Senate voting this Friday

Yesterday’s High Court’s judgment delivery notification service (an email list) includes the following announcement:

Please be advised that the High Court will deliver the following judgments:

Friday, 13 May 2016 at 10:00 am in Court No. 2 Parkes Place, Canberra

Day v Australian Electoral Officer for the State of South Australia & Anor (S77/2016)

Madden & Ors v. Australian Electoral Officer for the State of Tasmania & Ors (S109/2016)

These judgments are a pair of constitutional challenges by Senator Bob Day and Tasmanian senate candidate Peter Madden (both of the Family First Party) to amendments made to the Commonwealth Electoral Act in March 2016 to some aspects of the system for voting for senators. A successful challenge would (most likely) mean that the coming federal election would be governed by the previous rules for Senate voting, which have been criticised for permitting candidates with little direct support to be elected through complex deals with other parties about how ‘above the line’ votes for particular parties are dealt with. Such a ruling would be one of the apex court’s most dramatic recent interventions in national politics.

There has been no shortage of detailed analysis of the arguments put forward by Day and Madden. Most predict that the challenge will fail because of the weakness of the arguments put forward. In my view, the Court’s own conduct since the hearing also strongly suggests that the challenge will fail.  Continue reading

News: Congratulations to Katy Barnett

Hamish Michael Thompson was born Friday, weighing 3.3kg, with a fresh dose of immunity, but, disturbingly for his parents Katy and Scott, greatly reduced incentive to settle. Particular congratulations are due to Katy Barnett, who recently won the Barbara Falk prize for excellence in teaching and has written books on Accounting for Profit for Breach of Contract, Remedies in Private Law (with Sirko Harder) and a dystopian science fiction novel, The Earth Below. Somehow she did all of that while editing this blog. We wish the first ever Opinions on High baby and his family well.

News: High Court refuses to overrule itself on advocates’ immunity

Yesterday, in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16, a majority of the High Court upheld the appeal of a man who wanted to sue his lawyers for negligence over advice they gave him that led him to settle a dispute about a bank guarantee that ended up being very costly for him. However, while refusing to extend advocates’ immunity to work that leads to an out-of-court settlement, the Court also unanimously refused to reopen two earlier decisions where majorities of previous High Court benches had held that advocates are generally immune from civil actions concerning the advice they give in relation to court proceedings that proceed to judgment. While yesterday’s entire ruling will surely be closely studied by private lawyers, a point of more general significance is the Court’s reasons for not reconsidering its earlier decisions. As the Court noted yesterday, it has ‘undoubted authority’ to overrule itself, a power it last exercised in 2013 (as discussed here by Katy Barnett).

However, that doesn’t mean that it will overrule itself, even in situations where the current Court would now develop the law differently. Continue reading

Attwells v Jackson Lalic Lawyers Pty Ltd

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on advocates immunity from negligence actions in the context of out of court settlements. ANZ Bank sought to enforce a guarantee of approximately $1.75 million on a loan taken out by the appellants. An employee of the respondent law firm allegedly negligently advised the appellants to settle the claim and also accept liability for a larger amount (approximately $3.4 million) because it ‘would not make any difference’ whether they defaulted for $3.4 million or the lesser sum. The Court of Appeal held that the trial judge should not have refused the appellants’ application to first determine Continue reading

Nguyen v The Queen

The High Court has dismissed an appeal against a sentencing decision of the New South Wales Court of Criminal Appeal relating to excessive self-defence. The appellant, a drug addict and dealer, was convicted of manslaughter and wounding with intent to cause grievous bodily harm after a shootout with plain clothes police, in which the appellant wounded one office, and another was accidentally shot by the injured officer and mortally wounded. The NSWCCA held that the trial judge erred in finding that the appellant’s mistaken belief that the police officers were robbers was a mitigating factor in sentencing, because that belief was already implicit in the conviction for manslaughter, rather than murder, and in finding that sentences should be served concurrently because each involved distinct consequences and criminality. The NSWCCA raised the sentence from 9 years and 6 months to 16 years Continue reading

News: Few appeal grants as Court’s new special leave process takes shape

A month ago (or so), the High Court’s registrar announced changes to the Court’s practice on special leave applications, including filtering all applications (rather than just applications by unrepresented litigants) first on the papers, and only proceeding to an oral hearing with some of them. The Court’s announcement was short on details and none have been forthcoming, but there is now a month of practice to consider. The headline is that there are now far fewer oral special leave hearings. Just four were listed for Friday’s special leave day, all in the Court’s Melbourne registry (although two were heard by video link.) And only one of those matters was granted special leave. By comparison, there were eighteen cases (with six grants) heard on March’s special leave day (although some were multiple applications concerning the same matter) and seventeen (with five grants) this time a year ago.

So, what has happened to all the other special leave matters?  Continue reading

Coverdale v West Coast Council

The High Court has dismissed an appeal from the Full Court of the Supreme Court of Tasmania in a matter relating to the meaning of ‘land’ in the context of local government land valuations. West Coast Council sought a declaration that the Valuation of Land Act 2001 (Tas), the Local Government Act 1993 (Tas) and the Marine Farming Planning Act 1995 (Tas) required the Valuer-General to issue a valuation for several areas in Macquarie Harbour that are subject to marine leases, which would allow the Council to levy rates. At trial, Blow CJ held that while the areas would constitute ‘land’ under the Crown Lands Act 1976 (Tas), for the purposes of the LGA they were not liable to be rated (see at [24]). A majority of Continue reading

IMM v The Queen

The High Court has allowed an appeal against a decision of the Northern Territory Court of Criminal Appeal on complaint and tendency evidence and probative value in the context of child sexual assault. The appellant was convicted of sexually abusing his step-grandchild on three occasions. The NTCCA upheld the trial judge’s decision to admit evidence from the complainant’s friend and relatives, to direct the jury that if they were satisfied of that complaint evidence they could use it as ‘some evidence that an offence did occur’, and to admit tendency evidence from the complainant about the appellant’s conduct during a massage that indicated his sexual interest in her. Before the High Court the appellant argued that the NTCCA Continue reading

News: High Court grants injunction staying asylum seeker’s abortion

In breaking news, ABC News reports that the High Court has issued an urgent injunction restraining an asylum seeker from having an abortion. (The Commonwealth later clarified that she was in fact a refugee to whom a temporary protection visa has been granted). The woman, who is held on Nauru, had requested the abortion in Australia. However, she was flown out to Papua New Guinea yesterday to undergo the procedure, without any notice. She has sought a stay of the procedure because of doubts as to the legality of the procedure in Papua New Guinea.

In what follows below, I outline the law with regard to abortion in Papua New Guinea, and the test for an interlocutory injunction.

UPDATE: The transcript of the application before Keane J is now available. Continue reading

Mok v DPP (NSW)

The High Court has dismissed an appeal against a decision of the New South Wales Court of Appeal on applicable jurisdiction in the context of a cross-State prison transfer escape. The appellant briefly escaped custody in the course of being transferred from Victoria to New South Wales at Tullamarine Airport, a ‘Commonwealth place’. His transfer took place under a federal law, the Service and Execution of Process Act 1992 (Cth), s 89(4) of which states that the law in force in the place of issue of a warrant relating to the liability of a Continue reading

Fischer v Nemeske Pty Ltd

The High Court has dismissed an appeal against a decision of the New South Wales Court of Appeal on directors powers in the context of family trust dispute. In 1994, the directors of Nemeske Pty Ltd, a trustee company, resolved to make a final distribution of the trust monies to the beneficiaries, Mr and Mrs Nemes. That resolution was purportedly made pursuant to cl 4(b) of the trust deed, which provided that the trustee may ‘advance or raise any part or parts of the whole of the capital or income of the Trust Funds and to pay or to apply the same as the Trustee shall think fit for the maintenance, education, advancement in life or Continue reading

Zaburoni v The Queen

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on the test for intent and foresight of consequences in the context of HIV transmission. After the appellant was diagnosed with HIV in April 1998, he commenced a sexual relationship with the complainant in December 2006 involving unprotected sex, and in 2009, after the relationship had ended, she was diagnosed with HIV. Throughout this time, the appellant denied on multiple occasions that he had HIV, claimed that he only knew about Continue reading

News: Obeid’s suppressed High Court application

Two judgments published yesterday by Gageler J reveal that previously suppressed High Court events in mid-January involved an application by former NSW Legislative Councillor Eddie Obeid to delay and perhaps ultimately prevent his trial on a charge of misconduct in public office. In  the first of yesterday’s judgments, Obeid v The Queen [2016] HCA 9, Gageler J explained his reasons for refusing Obeid’s request to stay his trial until the High Court had considered his application for special leave to appeal the NSW Court of Criminal Appeal’s rejection of his pre-trial arguments (that his parliamentary position at the time of the alleged public misconduct either fell outside of the scope of the offence charged or meant that only the Legislative Council could try it.) In the second, Obeid v The Queen [No 2] [2016] HCA 10, Gageler J explained why both the fact of Obeid’s application for special leave and a stay and Gageler J’s ruling rejecting the stay were not published by the High Court until now: it was because Gageler J himself suppressed that information (at the ex-politician’s request.)That explains why the relevant court list only revealed that an application for an application for a non-publication order was to be heard, but not who made the application or what it was about.

The two sets of reasons for judgment from Gageler J explain the events and his reasoning in considerable and very useful detail. Continue reading

News: Fast track for complicity law challenge

Australian criminal defence lawyers have wasted no time responding to February’s UK ruling overturning the common law rule in England and some other countries that deemed anyone engaged in a criminal enterprise liable for any crimes committed by their colleagues, no matter how serious, if they foresaw the mere possibility that the crime would occur. A challenge to Australia’s similar common law (left untouched by the English decision) is already before the High Court in Smith v the Queen, a South Australian matter that was referred for argument before an expanded High Court bench just a week before the UK judgment. Smith’s 20-page submissions, lodged last week, spend just two pages on the issue that was the subject of the referral (the role of intoxication in such cases, a matter already before the Court in an appeal by Smith’s co-defendant.) Rather, the balance was devoted to the following new question:

Should the doctrine known as “extended joint enterprise”, enunciated in McAuliffe v The Queen (1995) 183 CLR 108, be reconsidered and revised or abandoned, in light of the decision of the Supreme Court of the United Kingdom in R v Jogee [2016] 2 WLR 681?

Whether the High Court actually considers this question turns on multiple exercises of the Court’s discretion, including whether or not Smith can amend his earlier application for special leave to appeal, whether special leave will be granted and whether Smith can ask the Court to reconsider  its earlier rulings on this issue.

In many ways, this challenge resembles the Court’s current reconsideration of advocates’ immunity to negligence actions, another commonly criticised part of the common law. Continue reading

News: Chief Justice announces early resignation

The ‘News Room’ of the High Court’s website contains the following announcement:

Retirement of Chief Justice
The Chief Justice of the High Court has advised the Prime Minister of his intention to resign from office with effect from midnight on 29 January 2017. The resignation will take effect a few weeks ahead of the Chief Justice’s 70th birthday on 19 March 2017 in order that his successor may take up office at the commencement of the 2017 sittings on 30 January 2017.
Andrew Phelan.
Chief Executive & Principal Registrar. 23 Mar 2016

The Chief Justice’s resignation comes 47 days before the date mandated by the Constitution.

The publication of the Chief Justice’s retirement plan is a welcome development Continue reading

News: The High Court’s work during federal elections

An election is of obvious interest to the legislature and executive. However, it is also increasingly relevant to the work of the government’s third branch. Each of the last three federal elections has required the Court to resolve complex questions urgently:

  • two months prior to the 2007 election, the Court struck down legislation from 2006 barring all prisoners from voting.
  • two weeks before the 2010 election, the Court struck down legislation from 2006 removing the 7 day ‘statutory grace period’ allowing people to enrol after an election is called.
  • five months after the 2013 election, Hayne J, sitting as the Court of Disputed Returns,  declared the election of Western Australian senators void due to the loss of 1370 ballot papers.

The 2015 election, whenever it occurs, will continue this trend.

So far, two pre-election High Court cases have been announced. Continue reading

News: Court announces fewer oral hearings for special leave applications

The ‘News Room’ heading on the High Court’s website contains a notice from the Court’s Chief Executive titled ‘Changes to Special Leave’ that is mostly devoted to the following change:

In represented applications, a Panel of Justices will determine in the first place whether an oral hearing is warranted. If the Panel considers that no oral hearing is required, the application will be granted or refused special leave on the papers. If an oral hearing is required, the application will be listed for hearing as soon as practicable.

This announcement continues a decades long trend away from oral hearings in the Court’s function of determining its own appellate docket and brings the Court’s practices closer those in comparable courts in the UK, Canada and the US. In previous years, the Court moved from five-judge benches to three-judge and then the current two-judge benches, and generally stopped giving oral hearings to self-represented applicants. The current announcement indicates that there will now be up to two hearings for all special leave applications, one on the papers and then a possible second oral hearing. It seems that the first non-oral hearing will always involve a decision on whether or not to proceed to an oral hearing and, if there is to be no oral hearing, will also determine whether or not special leave will be granted.

There are a number of aspects of this new process that are not entirely clear from the notice. Continue reading

News: Six new cases as Morcombe matter ends

Friday’s High Court special leave hearings received particular attention in Queensland, with the Court rejecting an application for leave to appeal by Brett Cowan, who was convicted of murdering Sunshine Coast teenager Daniel Morcombe in 2011. The case drew attention because of the tragedy of a 13-year old’s violent death, the publicity given to police suspicions about Cowan at the coronial inquest, the oddity that Cowan was one of two otherwise unrelated child sex offenders who may have been in the vicinity when Morcombe vanished, and the playing out of the dispute about the Chief Justiceship of Tim Carmody during Cowan’s state appeal. Today’s hearing was attended by Morcombe’s parents, who were relieved that the matter was at an end and reportedly critical of the appeal process. However, the national Court’s refusal of leave will disappoint those who hoped it would revisit its earlier support for complex police stings such as the one used to obtain admissions from Cowan, especially given the recent revisiting of such operations by the Supreme Court of Canada, where the method originated.

The High Court nevertheless granted leave to appeal six cases, all of which are especially interesting: Continue reading

Moreton Bay Regional Council v Mekpine Pty Ltd

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on compensation for resumed land in the context of commercial tenancies. In March 1999 the Mekpine entered into a retail shop lease in respect of Lot 6 within a retail shopping centre, which, after an expansion of the area in 2007, led to amalgamation of Lot 6 with Lot 1 and newly named ‘New Amalgamated Lot 1’. In 2008 the Council resumed part of New Amalgamated Lot 1, which had previously been part of Lot 1. Mekpine then brought a claim for Continue reading

R v Independent Broad-Based Anti-Corruption Commissioner

The High Court has dismissed an appeal against a decision of the Victorian Court of Appeal on the powers of Victoria’s anti-corruption commission. IBAC sought to hold a public examination of the appellants, who are two police officers accused of assaulting a woman in custody and who face criminal charges in relation to that incident, pursuant to s 115 of the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic). The VSCA upheld the Continue reading

News: Gageler J on Victoria’s missing rights Charter

Today, the High Court unanimously rejected an appeal by two anonymous Victorian police officers who argued that they should not be publicly examined by Victoria’s anti-corruption commission about an alleged assault of a detainee in a Ballarat police station because they had been notified that they may be prosecuted for the assault. The Court held that its recent decisions on a common law rule obscurely named the ‘companion principle’, which prevents executive action that interferes with the accusatorial process unless it is allowed by clear legislative language, does not apply to people who are not yet formally charged with an offence. Six of the Court’s seven judges explained their reasons in the usual short format that characterises the French court. But Gageler J added a more interesting concurrence discussing a statute the majority didn’t mention: Victoria’s Charter of Human Rights and Responsibilities Act 2006. This prompts the question: why wasn’t Victoria’s landmark human rights statute addressed by the balance of Australia’s peak court in a major decision involving the human rights of Victorians under a Victorian law? Continue reading

Sham Self-Employment in the High Court: Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd

By Dr Alysia Blackham

Quest South Perth Holdings Case Page

In Australia, workers may be engaged as employees or as self-employed independent contractors. Employees are entitled to a range of employment rights, but independent contractors are not — after all, they are not employees. ‘Sham self-employment’ is where individuals are supposedly engaged as independent contractors, but they are actually employees. Cases where employers have misrepresented employees as being independent contractors are increasingly prevalent, affecting well-known companies like Myer (here and here), Australia Post (here) and the MCG (here and here). This may significantly affect workers’ terms and conditions of work — for example, cleaners employed as ‘independent contractors’ at Myer (via cleaning contractor Spotless) alleged that they were paid less than casual employees, did not receive penalty rates and had to pay their own tax, superannuation and insurance (see here and here).

Sham self-employment has again come on to the political agenda, thanks to the High Court case of Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45, which was handed down on 2 December 2015. Under s 357(1) of the Fair Work Act 2009 (Cth), an employer ‘that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.’ Section 357(1) does not apply where the employer proves that, when the representation was made, the employer:

(a) did not know; and

(b) was not reckless as to whether;

the contract was a contract of employment rather than a contract for services (s 357(2)). Continue reading

Victoria v Tatts Group Ltd

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal relating to state contracts on gaming operator’s licences in Victoria. After gaming machines were legalised in Victoria in 1991, the State created a duopoly between TAB (then a statutory corporation) and the trustees of an estate which would later become Tatts Group Ltd by issuing them with gaming licences. After TAB was privatised (becoming Tabcorp) and listed on the ASX, Victoria granted it a statutory right to a payment if new licences were granted after the expiry of its licence. Similar arrangements were made with the trustees, Continue reading

The Queen v GW

The High Court has allowed an appeal against a decision of the ACT Court of Appeal on unsworn evidence given by children. GW was convicted of several counts of committing acts of indecency upon or in the presence of R and H, his children. In a pre-trial hearing, pursuant to s 13 of the Evidence Act 2011 (ACT), Burns J ruled that R, a six year old, was not competent to give sworn evidence on the basis that while she said she understood the difference between truth and falsehood and the obligation to tell the truth, Burns J was ‘not satisfied’ that she had the capacity to understand that giving evidence involves the obligation to give truthful evidence. Defence counsel did not make any objection to Burns J’s statement or decision at the pre-trial stage, but requested at the trial stage before Penfold J that her Honour advise the jury that R was not giving sworn evidence. Continue reading

Tabcorp Holdings Ltd v Victoria

The High Court has dismissed an appeal against a decision of the Victorian Court of Appeal relating to state contracts on gaming operator’s licences in Victoria. After gaming machines were legalised in Victoria in 1991, the State created a duopoly between TAB (then a statutory corporation) and the trustees of an estate which would later become Tatts Group Ltd by issuing them with gaming licences. After TAB was privatised (becoming Tabcorp) and listed on the ASX, Victoria granted it a statutory right to a payment Continue reading

Scott Stephenson, Michael Crommelin and Cheryl Saunders on the Judgments in Plaintiff M68-2015 v Commonwealth

Plaintiff M68-2015 Case Page

This post collects three perspectives on the judgments of the High Court in Plaintiff M68/2015 v Commonwealth [2016] HCA 1 offered by Scott Stephenson, Michael Crommelin and Cheryl Saunders. These remarks emerged from a recent discussion of the case at a workshop by the Centre for Comparative Constitutional Studies at MLS convened by Adrienne Stone. Scott spoke on the joint judgment and the judgment of Keane J, Michael on Bell J and Gageler J’s opinions, and Cheryl on the dissent of Gordon J.

Scott Stephenson on the Joint Judgment (French CJ, Kiefel and Nettle JJ) and Keane J

Cheryl, Michael and I have divided our discussion of M68 by judgment. I will start by covering the joint judgment of French CJ, Kiefel and Nettle JJ as well as the judgment of Keane J. I imagine most people are somewhat familiar with the case and the facts, but let me provide a brief overview.

The case was a challenge to the legality of the offshore processing arrangements that operate on Nauru. The arrangements allow the Australian Government to transfer to Nauru non-citizens who arrive in Australia by boat without a valid visa and seek asylum. These persons remain on Nauru while their applications for refugee status are determined. In practice, the arrangements work as follows. The Australian Government intercepts an asylum seeker at sea, brings the person to Australia, and applies on behalf of the asylum seeker, and without their consent, to the Nauru Government for a regional processing centre visa. The Nauru Government grants this visa, allowing them to enter the country. The asylum seeker is transferred to Nauru and placed in a camp that is for the most part operated by Wilson Parking, a sub-contractor of Transfield. The asylum seeker remains in this camp while the Nauru Government determines their application for refugee status under Nauru law. Continue reading

News: Australian criminal law took a ‘wrong turn’, says UK’s top court

In a long-awaited and unusual joint judgment of two peak courts, the UK Supreme Court and the Privy Council, five judges yesterday ruled that the common law took a ‘wrong turn’ on the criminal law of complicity at least 19 years ago.The courts heard appeals by people convicted of murder after their partners in crimes –  respectively, an English domestic assault and a Jamaican taxi robbery –  instead stabbed the intended victims. At issue were rulings by the Privy Council in 1985 and the House of Lords in 1997, building on decisions by Australia’s High Court from 1980,  that such defendants could be convicted of murder if they were merely aware that their accomplices ‘might’ murder someone in the course of another crime. Yesterday’s unanimous judgment found that the twin decisions misunderstood the earlier authority, disregarded principle and, most disturbingly, ‘bring the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory’ – the accomplices’ awareness of the possibility of a murder -‘ than in the case of the principal’- the stabbers’ intent to cause serious harm. Accordingly, they overruled the 1985 and 1997 decisions, detailed a new narrower standard for liability and outlined ground rules for reviewing decades of potentially wrong convictions.

But yesterday’s ruling does not apply in Australia. Continue reading

News: A surprise death in a national court

Yesterday’s news of the death of United States Supreme Court Associate Justice Antonin Scalia will dismay many, including those who agree with his views and many others who simply enjoyed reading his eloquent and witty judgments. The news also inserts a dramatic new dynamic into United States politics, given the Court’s outsized role in American political life, the sharing of the appointing role between an elected executive and a legislative house and Scalia J’s position as part of a recognisable (although far from invariable) conservative majority in the Court’s many 5-4 decisions. In all these respects, Australia differs from America. Indeed, on the latter point, as UNSW’s Professors Lynch and Williams reported last Friday at the Gilbert & Tobin Constitutional Law Conference, the current High Court now has fewer dissenting judgments than ever.

Deaths of sitting High Court judges are now a rarity, in part because (unlike in the US), appointments of Australian judges are no longer for life. While the last death of a sitting judge was Lionel Murphy’s in 1986, it was not a shock, coming six months after the announcement that he was suffering from inoperable colon cancer. Rather, the most recent surprise death was that of Keith Aickin in 1982, Continue reading

News: Slow start to special leave grants in 2016

The Court today held its first special leave hearings for 2016, in its Sydney and Canberra registries. All the Sydney applications were rejected, while in Canberra, the Court granted special leave in just one matter and also referred a pair of appeals to the full court [EDIT: connected to a matter granted special leave in November]. Matters where leave was refused include two further pre-trial challenges by alleged foreign incursion promoter, Hamid Alqudsi, and a high profile appeal by a farmer who lost his organic certification when genetically modified crops grown by his neighbour contaminated his land.

The lower court decisions to be considered by the Court are: Continue reading

News: Quick end to Alqudsi’s challenge to mandatory jury trials

Yesterday’s new decision on civil procedure and insurers is not the only significant ruling of the High Court this week. Wednesday’s day-long hearing of a pre-trial application by accused promoter of foreign incursions, Hamdi Alqudsi, ended with the following statement by French CJ:

At least a majority of the Court is of the opinion that the following order should be made:
1. The question “Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant’s trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution”, should be answered “Yes”.
2. The motion is dismissed.
The reasons of the Court will be published at a later date.

The effect of these orders is that Alqudsi’s trial will be by a jury of his peers, rather than by judge alone as he preferred. The orders also strongly suggest a rejection by a majority of the High Court of an effort by Alqudsi, broadly supported by the Commonwealth and four states, to overturn or limit a thirty-year old 3-2 ruling by the High Court that effectively gave prosecutors, but not courts or defendants, the power to opt for a judge-alone trial of serious federal crimes.The Court’s majority holding in 1986’s Brown, although certainly a plausible reading of the bare text of s80 of the Constitution, is reviled by many as a perversion of one of the Constitution’s few apparent protections of human rights. However, we won’t know quite what the Court has said about s80 until the Court’s reasons emerge in next month or so.

Of more immediate interest is why the High Court opted to make its orders immediately Continue reading

News: Bell Group – the litigation that just won’t die

In September 2013, I reported that long-running and complex Bell Group litigation had settled immediately before an appeal to the High Court was to be heard. The litigation began in 1995, and related to loans given to Alan Bond’s Bell Group of companies. However, it seems that the litigation just won’t die.

As I noted just before settlement, the question of how the settlement sum was to be distributed was potentially controversial. The litigation had been funded by the WA State Government-owned Insurance Commission of Western Australia (ICWA). Western Australian motorists had to pay an annual levy of $50 on third party insurance from 1993 to 1996 to assist ICWA, known as the WA Inc levy. That promise of controversy has now been realised. Continue reading

News: Summarising High Court judgments

Wednesday saw the High Court’s first decision of 2016, concerning one of the most controversial issues in Australia: offshore immigration detention. The judgment is a blockbuster, consisting of five judgments and over 42000 words (not including the 339 footnotes), answering (or declining to answer) a special case consisting of fourteen multi-part questions. As is the Court’s practice since late 2002, the judgment was accompanied (and, online, preceded) by a one-page judgment summary, describing the proceedings and, in a single paragraph, its outcome:

The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by s 198AHA of the Act, which is a valid law of the Commonwealth.

It is likely that this summary was responsible for speedy and accurate media reports that the challenge to the ‘Nauru solution’ had failed, in turn prompting fresh political debate about whether the federal parliament or executive should maintain or end the regime, and specifically the fate of 267 asylum seekers slated to return to Nauru.

However, as The Guardian observed on Wednesday evening, ‘High court decisions are not football matches: it’s not always clear who has won and by how much.’ Continue reading

Plaintiff M68/2015 v Minister for Immigration and Border Protection

The High Court has decided a constitutional matter on the detention of asylum seekers in the Nauru Regional Processing Centre, and upheld the validity of the scheme (see below table for the full order). The plaintiff, a former detainee at the Nauru RPC who is set to be returned to Nauru, contends that the contractual arrangements between the Commonwealth government and Transfield Services (Australia) Pty Ltd relating to that detention are not supported by a valid statutory provision — here, s 198AHA of the Migration Act 1958 (Cth) which relates to regional Continue reading

News: High Court circuit hearings reduced by budget cuts?

As the Canberra Times reports, the High Court has just released its Annual Report for 2014 – 2015, which contains an alarming warning about circuit hearings around the country in light of budget cuts imposed by government imposed ‘efficiency dividends’. In French CJ’s Overview, he says at page 16:

In the 2014-2015 year, income received by the High Court including from its principal source, namely parliamentary appropriations, was $16.336 million. Operating expenses including unfunded depreciation charges of $4.802 million amounted to a total of $21.167 million. The underlying deficit after taking out unfunded depreciation allowances was $29,334.

The High Court has a small administration. Its total staff comprises (not including Justices) 99 persons. Thirty-seven are full-time and part-time ongoing staff, 36 are full-time and part-time non-ongoing staff and 26 are casual staff. The Court operates nationally with extended logistical requirements and large fixed costs. Its level of funding is low compared with the Parliament and many parts of the Executive Government. Historically its appropriated revenues have not kept pace with unavoidable cost increases particularly in building related expenditure. Many of the Court’s administrative costs are fixed, for example, statutory charges for electricity to operate the building. Government imposed efficiency dividends affect core elements of the Court’s operations such as Registry and Library staffing. The Court has undertaken comprehensive reviews of its Registry and administrative processes and structures since 2008. The position continues to be that there is no material scope to reduce the Court’s administrative costs without cutting significant elements of its operations including circuit visits which it undertakes from time to time to Perth, Adelaide and Brisbane dependent upon the workload in those capitals.

[emphasis added]

It would not be positive if the High Court were no longer able to go on circuit to some capital cities (or, as the Canberra Times suggests, any other capital cities other than Canberra). The High Court is a court for all of Australia, and as such, it is important that it has a presence in all States and Territories of Australia.

Back in the days when I was a State judge’s associate, I became enraged by a government questionnaire which described the court as a “business unit.” Courts are not “business units”. They do not produce profits. While courts certainly should not waste money, and should have an efficient administration, it sounds like the High Court has already achieved this. Fundamentally, the High Court is an essential arm of government whose role it is to adjudicate disputes. What price justice?

News: Suppression applications in the High Court

A week ago, the High Court’s registry listed the following matter before Gageler J at 11am in the Court’s Sydney registry:


While it appears likely that this is a criminal law matter, no other information about it is public knowledge. Apart from insiders (and whoever else happened to be in the courtroom that day), no-one knows who the applicant is, who (or what) the non-Queen party was, what orders were already in place, what orders were sought, the grounds for the application, the arguments made, what orders (if any) were made and the reasons for Gageler J’s decision (if any.) In these respects, the High Court is similar to other Australian courts, where such opaque listings are commonplace. Thanks to its practice of publishing transcripts of its hearings online for free, the High Court is usually much more open than other Australian courts.  However, no transcript of any hearing from last Wednesday has been published.

However, transcripts from a different matter a week earlier are more illuminating. Continue reading

Endings and Fairness: The Clean Energy Act 2011 (Cth) and Queensland Nickel: Queensland Nickel Pty Ltd v Commonwealth

By Brad Jessup

Queensland Nickel Case Page

Australia’s first national laws to put a price on carbon were effective to their end; reportedly leading to reductions in Australia’s combined greenhouse gas emissions. In their absence it has been reported that increases in emissions have resumed. While our new Prime Minister grapples with how to rein in these emissions, the High Court last year confirmed that the carbon price laws were lawful, and through the prism of the Constitution fair, to their end. The history books will show, however, that politicians failed to make the case for a carbon price law, but they devised and crafted a successful, if complex though geographically unfair, legal policy. Over the past few days the protagonist in the High Court case, Queensland Nickel, with the business faltering, has brought claims of fairness into the political discourse around this business’ carbon intensive operations.

The Constitution and no interstate discrimination

In Queensland Nickel Pty Ltd v Commonwealth [2015] HCA 12, notable also as Nettle J’s first judgment, the High Court dismissed a claim by Queensland Nickel that regulations supporting the principal Act, the Clean Energy Act 2011 (Cth), were unconstitutional based on their geographic effect. Arguments relying on s 99 of the Constitution, the non-discrimination provision, that the regulations inadvertently and indirectly discriminated against the Queensland-based refinery business wholly owned by Clive Palmer MP, the federal parliamentary member for Fairfax, were rejected.

The High Court concluded that the additional financial liability imposed on Queensland Nickel relative to other refineries in Western Australia that triggered the case was not a cause of a difference or discrimination on the grounds of physical or jurisdictional geography but a result of past decisions made by Queensland Nickel on purely financial grounds. The effect of the laws as experienced by Queensland Nickel relative to its Western Australian competitors may have had an increased financial burden on Mr Palmer’s company, which has not been attributed to the company’s financial woes, but that burden was not attributable to the law; rather business decisions made by the company in its infancy.

In the High Court case, Nettle J adopted the plurality view in the Fortescue Metals case, and found that the particular parts of the carbon price regulation that set out liabilities for nickel refineries ‘did not discriminate between States. In terms, it applied equally to eligible persons carrying on the production of nickel regardless of the State of production’ (at [56]). Although Nettle J acknowledged a difference in practical effect of the laws for Queensland Nickel, he considered that ‘in this case it does not appear that any of the differences between the plaintiff’s and the Western Australian nickel producers’ inputs, production processes or outputs were due to differences between Queensland and Western Australia in natural, business or other circumstances’ (at [58]).

Instead, Nettle J focussed on past decisions about mining processes as giving rise to the different effect of the laws. The mining process adopted by Queensland Nickel was found to have been the reason for the greater financial burden under the laws. Although Nettle J conceded that the mining process decision ‘was informed by geographic considerations’ (at [61]), the decisions were ultimately based on delivering to each firm the greatest possible financial windfall at the time the decisions were made in the historical technological settings.

This conclusion, which eschews considerations of the geography of place, effect, and time in preference for considerations of financial autonomy offers an appropriate and consistent ending for the Clean Energy Act 2011, because financial interests trumped geographic interests and fairness throughout its invention, implementation and repeal.

Continue reading

News: Baden-Clay’s resentencing delayed until High Court hearing

One of the most closely watched High Court matters of 2016 is an application to appeal a Queensland Court of Appeal decision from December, concerning a high profile domestic homicide. In R v Baden-Clay [2015] QCA 265, the Queensland court (including the state’s new Chief Justice Catherine Holmes) rejected the Brisbane real estate agent’s complaints about the conduct of his homicide trial, but accepted his argument that the jury’s verdict of murder was unreasonable:

[T]here remained in this case a reasonable hypothesis consistent with innocence of murder: that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict…

In consequence, the appeal against conviction must be allowed, the verdict of guilty of murder set aside and a verdict of manslaughter substituted. Counsel for the respondent should file and serve submissions as to sentence by 15 January 2016, with the submissions for the appellant to be filed and served by 22 January 2016.

Last week, Holmes CJ revisited the final sentence of that judgment on the application of Queensland’s DPP. In doing so, she addressed when a lower court should (and shouldn’t) change course in response to a planned High Court appeal. Continue reading

News: Counting High Court judgments

Today, the High Court issued its final judgment for 2015, number 53 in the media neutral citation list, one more than last year. Looking back over the Court’s judgments published on Austlii, these numbers are amongst the Court’s lowest. Out of the Court’s 113 years, there have been only fifteen with fewer than 53 (media neutral citation) judgments: 1903 (3), 1926 (52), 1928 (51), 1929 (46), 1930 (52), 1939 (41), 1940 (46), 1941 (43), 1942 (40), 1943 (50), 1944 (42), 1948 (50), 1983 (47), 2010 (49) and 2014 (52). The majority of these have ready explanations  – the Court’s truncated first year and the depression and war years – that the more recent years lack.

But such raw counts can easily mislead, as not all published judgments are equal. Continue reading

Wei v Minister for Immigration and Border Protection

The High Court has decided a special case challenge the Minister for Immigration and Border Protection’s decision to cancel a international student visa. The plaintiff completed a tertiary program at Macquarie University while on a student visa. The University, however, allegedly did not issue a confirmation of enrolment as required by s 19 of the Education Services for Overseas Students Act 2000 (Cth) until after the completion of the course, and the plaintiff’s enrolment was not recorded on the relevant system at the Department. Having recognised apparent grounds for cancelling the visa due to non-enrolment, the Minister’s delegate Continue reading

Plaintiff M64/2015 v Minister for Immigration and Border Protection

The High Court has decided a special case relating to a decision by the Minister for Immigration and Border Protection to deny a refugee and humanitarian visa to the family of an unaccompanied Afghan minor who was granted a protection visa in August 2011. The Minister’s delegate refused the ‘split family’ application on the basis that the delegate was not satisfied that there were compelling reasons for giving special consideration to granting the visa (as required by cl 202.222(2) of the Migration Regulations), and noted that only a small number of applicants could be successful under the government’s Special Humanitarian Programme and the ‘processing priorities’ of the policies associated with that programme. The plaintiff sought to Continue reading

Secret Votes in the High Court: Smith v The Queen

 To His Honour, The jury is still not in total agreeance.

– First formal vote was [redacted] for [redacted] against (Guilty)
– Second formal vote was [redacted] for [redacted] against

Thank you.

It was 4:30pm on a summer Monday afternoon in early 2014. Leslie Smith’s jury had been deliberating since 11am the previous Friday, with a generous break over the weekend. Asked if an 11:1 verdict would solve the impasse, the jury foreman said ‘[y]ou could probably give us about half an hour and we can [indistinct].’ It took them just eighteen minutes to return a majority verdict, so they were on their way home by 5pm.

In Smith v R [2015] HCA 27, the High Court considered whether the trial judge should have publicly divulged the full contents of the jury’s note before he allowed them to reach the verdict that started Smith’s five year sentence and ended a twenty-five year journey by the woman who said he had raped her.

A secret struggle

She said that she was calling from a public phone box and sounded distressed. She told [her boyfriend] that she had had to get out of [Leslie Smith]’s apartment. He could hear the sound of a motorbike in the background. Ms B told him that she would meet him in town.

It was 11:30pm on an autumn night in 1989 when his sixteen year old girlfriend called. He didn’t see her until the next morning. Afterwards, at Townsville’s casino, where he and Smith worked, Smith wanted to ‘explain’, but he said that there was no need. His girlfriend had told him not to be angry at Smith or to blame him. She was ‘fine’. Six months passed before she told him that Smith had dragged her onto his motorbike that night and raped her at his flat. He didn’t believe her. Nor did anyone else she told that year. It was another 18 years before she went to the police, aged 34.

Until recently, a case like this would never have come to trial.  Continue reading

News: Four more cases get special leave

In sittings today in Melbourne and Sydney, the High Court held its final special leave hearings for 2015, allowing appeals from the following four cases to proceed to the national apex court:

  • Betts v R [2015] NSWCCA 39, a sentencing appeal concerning an horrific instance of domestic violence, where Betts stabbed his former partner repeatedly over a lengthy period when she arrived at their flat to remove her belongings, intending that both would die together. The NSW Court of Criminal Appeal rejected Betts’s arguments that his offence was not aggravated by the extent of his partner’s injuries and was mitigated by his own extensive deliberate self-injuries (including injuries caused by his partner with his consent), but accepted his arguments that the trial judge wrongly aggravated his sentence because of his partner’s vulnerability and wrongly failed to mitigate his head sentence due to prison being especially onerous for him given his permanent self-injuries. However, the Court nevertheless let his sixteen-year sentence stand given the seriousness of his offending.
  • Cosmopolitan Hotel (Vic) v Crown Melbourne Limited [2014] VSCA 353, concerning a refusal by Crown to renew two leases at its Southbank Entertainment precinct, despite the tenant having been required to extensively renovate the premises in order to obtain an earlier renewal of the lease. The Victorian Civil and Administrative Tribunal had found that a statement by Crown employees that it would ‘look after’ the tenants at the next renewal if the renovations were high quality was enforceable as a collateral contract. Victoria’s Court of Appeal held that a Supreme Court judge rightly overturned this finding on the basis that the the statement was not intended to be a promise and was too vague to enforce, but nevertheless remitted the case to the Tribunal to determine what remedy (short of renewing the lease or compensating the tenants for all the profits they might have made) Crown should give the tenants for breaking its promise to look after them.
  • Deal v Kodakkathanath [2015] VSCA 191, an appeal against the failure of a compensation claim by a primary school teacher for injuries to her knee that she sustained when she fell off a small step-ladder while removing unwieldy paper artworks from a wall. The majority held that, although the trial judge’s rejection of her claim that the school breached an occupational health and safety regulation concerning ‘hazardous manual handling tasks’ was premature, inadequately explained and involved some misreadings of the statute, it was nevertheless correct because that regulation did not cover injuries caused by falls.
  • R v Nguyen [2013] NSWCCA 195, an appeal concerning what were described as ‘unusual, even unique, factual circumstances’ presenting ‘a challenging sentencing exercise’ – the fatal shooting of one plain clothes police officer by another in response to a shot fired by Nguyen in excessive self-defence. The NSW Court of Criminal Appeal held that the trial judge was wrong to find that Nguyen’s offending was mitigated by his mistaken belief that the cops (who were executing a search warrant) were robbers, as that fact was already implicit in Nguyen’s conviction for manslaughter (rather than murder), and also that the trial judge was wrong to give Nguyen wholly concurrent sentences for the shot he personally fired (which wounded the police officer’s arm) and the shot the other police office fired (which killed the police officer), as each involved distinct consequences and criminality. Describing his offence as ‘a most serious example of the crime of manslaughter’ and noting the need to deter crimes against the police, the appeal court raised Nguyen’s total sentence from nine years and six months to sixteen years and two months.

Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq); Commissioner of Taxation v Muller

The High Court has dismissed two appeals against a decision of the Full Federal Court on liquidators’ obligations to retain from the proceeds of sale an amount sufficient to pay tax on the sale of a property. The liquidators of ABS sold a property on which ABS made a $1.12m capital gain, which became part of ABS’s assessable income for that year. That assessment would be issued to ABS not the liquidators in their capacity as liquidators. The central issue was whether s 254(1)(d) of the Income Tax Assessment Act 1936 (Cth), which relates to Continue reading

Commonwealth v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate

The High Court has allowed two appeals against a decision of the Full Federal Court on civil penalty provision ranges and the effect of the High Court’s decision early last year in Barbaro v The Queen [2014] HCA 2, in which the Court held that prosecution submissions on appropriate sentencing ranges are merely opinions and not submissions of law. Following unlawful industrial action by the second and third respondent unions, the first respondent, the building industry employment regulator, sought Continue reading

Allen v Chadwick

The High Court has allowed in part an appeal against two decisions of the Full Court of the Supreme Court of South Australia relating to the tort of negligence and statutory reductions for contributory negligence. Chadwick suffered catastrophic injuries after being thrown from a car driven by her partner, Allen, who had a blood alcohol reading of 0.22. The Full Court allowed an appeal against the trial judge’s decision to apply a 25 per cent reduction in damages Continue reading

McCloy Symposium: Anne Carter on Proportionality and Its Discontents

By Anne Carter

McCloy Case Page

In McCloy v New South Wales [2015] HCA 34 four members of the High Court endorsed, for the first time, a ‘uniform analytical framework’ of proportionality to determine whether the implied constitutional freedom of political communication had been infringed. Although there was broad consensus amongst the Court as to the result of the case (with Nettle J dissenting only in respect of the prohibition on donations from property developers), the Court divided in respect of the role of proportionality analysis. In this post I consider how the joint judgment’s approach refines — or perhaps rewrites — the traditional two-part Lange test, and I compare this with the approach of Gageler J. In addition, I make some observations about the possible implications of the decision.

The Lange Test: A ‘cumbersome and inexact phrase’?

Since the Court’s unanimous decision in Lange v Australian Broadcasting Corporation [1997] HCA 25 in 1997, the High Court has consistently confirmed, with only slight modifications, a two-stage test for assessing limitations on the implied freedom of political communication. This by-now familiar test contains two limbs. First, it asks whether the law effectively burdens freedom of communication about government or political matters either in its terms, operation or effect. Secondly, if the law effectively burdens that freedom, it asks whether the law is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

The prevailing view, in Lange and the cases which followed it, was that ‘proportionality’ was simply an alternative formulation of the ‘reasonably appropriate and adapted’ test. In Lange itself the Court noted that the relevant test had been expressed in different ways and that it was not necessary to distinguish between the two concepts (at 562). In a footnote the Court observed that there was ‘little difference’ between the two tests (at 572). This view, that the two expressions are simply alternative ways of expressing the same test, has continued to be influential. Chief Justice Gleeson in Mulholland v Australian Electoral Commission [2004] HCA 41, for instance, noted that ‘whichever expression is used, what is important is the substance of the idea it is intended to convey’ (at [34]).

Although the Court has continued to prefer the expression ‘reasonably appropriate and adapted’, this formulation has not been without its critics. In Mulholland Kirby J, building upon his reasons in Levy v Victoria [1997] HCA 31 and Coleman v Power [2004] HCA 39 critiqued the phrase ‘appropriate and adapted’ as being ‘inappropriate and ill-adapted to perform the constitutional function repeatedly assigned to it by members of this Court’ (at [247]). He considered that the expression ‘proportionality’ better captured the ‘actual process of constitutional reasoning’ (at [250]). Continue reading

Macoun v Commissioner of Taxation

The High Court has dismissed an appeal against a decision of the Full Federal Court on income tax on pensions from foreign retirement plans. The appellant worked as a sanitary engineer for the International Bank for Reconstruction and Development, a sub-organisation of the World Bank, during which time he participated in the World Bank’s Staff Retirement Plan. Following his retirement, he received monthly payments from this plan which he initially declared as assessable income for tax purposes, though he later amended those assessments to exclude them. The Administrative Appeals Tribunal set aside the Commissioner’s decision Continue reading

Firebird Global Master Fund II Ltd v Republic of Nauru

The High Court has substantively dismissed an appeal against the decision of the NSWCA relating to the recognition and enforcement of foreign judgments and sovereign immunities. Firebird sought enforcement by the NSWCA of a Tokyo District Court judgment for ¥1.3 billion relating to Nauru’s refusal to honour its obligations as a guarantor of bonds issued through the Republic of Nauru Finance Corporation, most of which are held by Firebird, under the Foreign Judgments Act 1991 (Cth). The NSWCA declined to Continue reading

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd

The High Court has allowed an appeal from a decision of the Full Federal Court on employee and independent contractor indicia. The Fair Work Ombudsman applied for a penalty order against Quest South Perth for allegedly making a false statement that two of its housekeeping employees were independent contractors, contrary to s 357(1) of the Fair Work Act 2009 (Cth). The Full Federal Court held that while the housekeepers remained employees no penalty was payable because the misrepresentation was about the existence of a contract Continue reading

Tax and Power in the High Court: The Capital Cost of an Electricity Monopoly: Ausnet Transmission Group Pty Ltd v Federal Commissioner of Taxation

By Professor Miranda Stewart

Ausnet Case Page

State governments are keen to raise funds by privatising electricity networks, as has just been legislated in New South Wales, but a privatisation agenda can also cause an election loss, as shown in this year’s Queensland election. Electricity privatisation is controversial and the costs and benefits are hard to understand.

One of the less visible aspects of electricity privatisation is the tax treatment of the asset purchase for the private buyer. This year, one of the few High Court cases on income tax is about the privatisation of Victoria’s electricity transmission networks in the late 1990s. This is the case of AusNet Transmission Group Pty Ltd v Federal Commissioner of Taxation [2015] HCA 25.

AusNet is a listed electricity transmission company that, in its own words, is Victoria’s ‘largest energy delivery service’. According to its website, AusNet owns and operates $11 billion of electricity and gas distribution assets that connect to more than 1.3 million Victorian users in a network of ‘49 terminal stations, 13,000 towers and 6,500 kilometres of high-voltage powerlines’. It’s not surprising that when AusNet has a tax issue, it is similarly large.

AusNet loses case on tax deductibility

AusNet (at that time called SPI Powernet) paid more than $2.5 billion for electricity transmission assets that it purchased in 1997 from a Victorian State-owned company. The asset purchase was just one element in the massive exercise of electricity privatisation (for more, see the first instance decision). The purchase price included the physical assets and the electricity transmission licence which would permit AusNet to operate the network. The contract also required AusNet to pay charges under the Electricity Supply Act 1993 (Vic) of $177.5 million in the 1999, 2000 and 2001 tax years, as the new owner of the transmission licence.

AusNet sought to deduct these charges as current expenses under the general income tax deduction rule (s 8-1 of Income Tax Assessment Act 1997 (Cth)). The Commissioner denied the deduction, arguing that the charges were instead capital in nature. It took more than a decade for this argument, arising out of a complex tax audit, to make its way to the High Court, where AusNet lost.

Applying Australia’s 30 per cent company tax rate, the deduction of $177.5 million was worth about $53 million to AusNet. With interest expense on unpaid tax, AusNet owed a total of $91 million to the Tax Office, of which it had previously paid $30 million. AusNet lost the case in the High Court and announced its ‘disappointment’ to the market in an ASX release. Continue reading

News: Ken Parish on the tragedies surrounding Melbourne v R [1999] HCA 32

Legal academic Ken Parish has a post at Club Troppo marking the death of Roy Melbourne, the defendant in a 1999 High Court criminal appeal. The post is an especially poignant one, because Melbourne was convicted of murdering Parish’s mother-in-law, who was minding Parish’s daughter while they shopped for her seventh birthday present.

Parish’s post is a profound insight into the impact of High Court appeals (amongst other things) on people affected by tragedy. Parish recounts:

When the jury’s guilty verdict was delivered I was surprised to find myself sobbing uncontrollably, not through sorrow but relief that this part of our ordeal was over and we could get on with grieving and putting our lives back together. However I was wrong about that last part. Melbourne appealed unsuccessfully to the Court of Appeal and then again to the High Court. Special leave was granted but the substantive appeal failed, although only by a margin of 3:2. The legal ordeal lasted until August 1999.

And he also notes that the description of Melbourne’s crime by McHugh J (and also Callinan J) in the High Court appeal understated the horror of the event, including the fact that it took place in the presence of Parish’s daughter. These awful details stand in sharp contrast to the somewhat dry issue that was debated in the High Court: whether the jury should have been directed that Melbourne’s clean record for the 60-odd years prior to his crime (apart from a drink-driving conviction) was relevant to determining whether or not to believe his statements immediately after the killing, including not recalling the killing, believing that Parish’s mother-in-law was harassing him with late-night noises (actually a defective sprinkler system) and his medical history. A majority of the Court held that the direction was not needed, with Kirby J and Callinan J dissenting.

The most moving part of Parish’s post is his own response to Melbourne’s death, two weeks after he voluntarily returned to prison from parole:

This morning I received a phone call from a detective from the Major Crime Squad. Melbourne was found dead in his cell last night. The detective was careful in what he said, but it sounds like he committed suicide. After a few moments of shocked silence I thanked him and remarked that I almost felt sorry for him, though not quite. But I do feel sorry and so does Jenny Parish. What a dreadful tragedy from beginning to end, for everyone involved including a lonely embittered old man named Roy Melbourne. I’ve been sobbing again today, not out of relief this time but from grief for all that has been lost.

In a comment, Parish adds that Melbourne’s death reportedly followed his return from work release after a law and order controversy in the Northern Territory, which Parish had criticised in an earlier post.

News: Predictable special leave outcomes

Predicting which cases will get special leave to the High Court is generally difficult. Last month, two Victorian judges refused an injunction to preserve the subject-matter of a case that was the subject of a special leave application, stating that ‘we are not persuaded that the application for special leave enjoys sufficient prospects of success to warrant a stay’. The High Court granted special leave in that matter last Friday. But it is possible to make strong predictions during the hearing itself. For example, a clue came during the applicant’s argument that the case ‘is a matter of real importance’ when Keane J interrupted to say ‘I do not think you need to worry about how important it is.’ The applicant promptly stopped his argument, correctly predicting that special leave would be granted. This was confirmed when, at the conclusion of the respondent’s argument, French CJ said that ‘we need not trouble’ the applicant for a reply. An even clearer sign of success is when the High Court does not call on the applicant at all, for example in this matter in October.

More unusually, in two matters this month, a lawyer faced the prospect of arguing for a special leave result after the Court had already resolved the matter against his client. Continue reading

A Comment on Professor Finnis’s Praise of Australia’s High Court

In a recent lecture Judicial Power: Past, Present and Future, leading legal philosopher Professor John Finnis launched a strong critique of the Supreme Court of the United Kingdom, especially the famous decision of its predecessor, the House of Lords, in the Belmarsh case, that a provision permitting the detention of suspected terrorists was incompatible with Europe’s human rights convention. By contrast he was strongly supportive of the High Court, writing:

Australia, which has as a federal nation done entirely without constitutionally stated rights for 115 years, made the choice not to entrust this inappropriate kind of power to judges, but to trust themselves and the legislatures they elect. (Victoria and one small federal territory are the only exceptions and very novel ones.) Australia I would say has done easily as well as countries under judicially enforceable or even judicially declarable human rights, and has kept its legislative and judicial discourse authentic, largely uncluttered with this sort of make-believe and confusion of roles, responsibilities and competences.

Professor Finnis relied upon the High Court’s decision in Al-Kateb v Godwin [2004] HCA 37 (where Court upheld indefinite immigration detention in some circumstances) and reserved particular praise for Justice Heydon’s judgment in Momcilovic v The Queen [2011] HCA 34 (where he would have declared Victoria’s human rights law constitutionally invalid.)

Policy Exchange, which has published the lecture as part of its judicial power project, invited three leading constitutional scholars to comment. Adrienne Stone’s commentary — questioning his reliance on Al-Kateb and Momcilovic — is here: Continue reading

News: Six new administrative and criminal law cases

In sittings in Canberra and Sydney yesterday, the High Court granted special leave to appeal six decisions, consisting of two administrative law matters and four criminal law ones. As well, in the special leave hearing concerning R & M v IBAC, discussed here, French CJ continued the order Nettle J gave  suppressing the names of the two police officers who IBAC wants to publicly examine ‘until further order’, despite Nettle J’s earlier expressed ‘doubts as to whether publication of the name of either applicant at this stage of the proceeding would give rise to any real risk of prejudice to a fair trial, when and if they are ever charged with any offences arising out of the subject matter of the inquiry’.

The cases where the High Court will hear appeals (most likely early next year) are:

Continue reading