By Natalie Burgess
DPP (Cth) v Keating Case Page
In DPP (Cth) v Keating  HCA 20, the High Court ruled that federal legislation imposing a backdated duty on social security recipients to inform Centrelink of changes in their circumstances had failed in its goal of shoring up the prosecution of past instances of social security fraud by omission. The Court held that an omission or failure to act can only attract criminal responsibility when, at the time of the failure, there was an existing legal duty to perform the act. The case sustains the importance of certainty in the criminal law, particularly the role it plays in the purpose and interpretation of the Commonwealth Criminal Code Act 1995 (Cth), but leaves aside some important constitutional questions involving the scope of the Commonwealth legislature’s power to enact retrospective criminal law. Continue reading
Peter Dombrovskis, ‘Rock Island Bend, Franklin River, Southwest Tasmania’ (1983).
By Martin Clark
Commonwealth v Tasmania Case Page
On 1 July 1983, the High Court sat in Brisbane to hand down its decision in Commonwealth v Tasmania  HCA 21. Popularly known as the Tasmanian Dam case, the decision is a landmark in Australian constitutional and environmental law. On 28 June 2013, 30 years after the decision was handed down, the Melbourne Law School hosted a symposium ‘Turning Points: Remembering Commonwealth v Tasmania (1983) 158 CLR 1’, to commemorate and reflect on the significance of the Tasmanian Dam case for Australian society, the environment and Australian law. The private symposium was convened by Dr Ann Genovese (Melbourne Law School). It brought together significant figures involved in the case, academic lawyers, historians and environmental activists, and the papers presented will be published in a forthcoming issue of the Griffith Law Review. For more on the Turning Points symposium, see here.
By Laureate Professor Cheryl Saunders AO
Condon v Pompano Pty Ltd Case Page
Condon v Pompano Pty Ltd  HCA 7 is the latest in a line of cases invoking the Kable principle to challenge atypical judicial processes mandated by State Parliaments for the purposes of crime control. In issue this time was the Criminal Organisation Act 2009 (Qld). The High Court challenge was brought by the Finks Motorcycle Club and Pompano Pty Ltd (said to be linked to the Finks’ Gold Coast ‘chapter’), bodies that the Queensland police claim are involved in organised crime.
In three of the earlier cases, organised crime control laws had been held to be incompatible with the maintenance of the integrity of State courts; a federal constitutional requirement since 1996, when the High Court struck down a statute permitting the NSW Supreme Court to order the continued detention of a particular soon-to-be-released prisoner, Geoffrey Wayne Kable (International Finance Trust Co Ltd v New South Wales Crime Commission  HCA 49; South Australia v Totani  HCA 39; Wainohu v New South Wales  HCA 24).
In another two earlier cases the laws had been construed so as to preserve their validity (Gypsy Jokers Motorcycle Club Inc v Commissioner of Police  HCA 4; K-Generation Pty Ltd v Liquor Licensing Court  HCA 4). The result was a messy jurisprudence, in which different judges relied on different features of the challenged legislation to draw what sometimes appeared to be fine lines between what was acceptable and what was not.
In Pompano a High Court of six Justices unanimously upheld the validity of the Queensland Act, with some important variations in their reasons. The case offers some insights into the significance of procedural fairness as a defining characteristic of a court. For the moment, however, given differences in emphases amongst the six judges, the scope of the Kable principle remains as indeterminate as ever, exacerbating the inevitable difficulty of predicting its application in practice. Continue reading
By Associate Professor Matthew Harding
The doctrine of precedent is a fundamental constraint on judicial decision-making in Australia. The general idea behind the doctrine of precedent is that judges, when they are deciding cases, must pay proper respect to past judicial decisions. Sometimes this means that judges are bound to apply the reasoning of judges in past cases — in other words, ‘follow’ past decisions — when deciding cases that raise similar facts; sometimes it means that judges must take seriously the reasoning of judges in past cases even if they are not bound to apply that reasoning. The moral value of the doctrine of precedent is in the way it serves the political ideal of the rule of law; according to that ideal, institutions of the state, like courts, should strive to ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties. Continue reading
By Sara Dehm and Cait Storr
Minister for Immigration and Citizenship v Li Case Page
The administration of migration and asylum applications is one of the most politicised powers of the Commonwealth government. Not only are the administrative decisions of the Department of Immigration and Citizenship frequently on the front pages, but the processes of appeal — via the Refugee and Migration Review Tribunals through to the Federal and ultimately the High Court — can also expose the sometimes hazy character of the separation of powers in Australia.
Judicial review of administrative decisions on migration and refugee status is now one of the key drivers of Australian administrative law. For instance, the question of how much scope the courts have to review the decisions of the Refugee Review Tribunal and the Migration Review Tribunal, particularly in the exercise of their respective statutory discretions as delegated under the Migration Act 1958 (Cth), has generated a significant line of High Court cases on procedural fairness and the fair hearing rule, from Eshetu through Miah to SZGUR. The legislature has made numerous attempts to limit the application of common law principles of procedural fairness to various delegated powers of the Migration Review Tribunal. Whether and to what extent common law principles of unreasonableness apply to such delegated decision-making has emerged as an area of key contention in these cases.
The decision in Minister for Immigration and Citizenship v Li  HCA 18 adds to this small but growing body of law which serves to refine the principles, operation and scope of what is unreasonable conduct of decision-makers within the increasingly politicised statutory patchwork that the Migration Act 1958 has become. The UK case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation  EWCA Civ 1 is frequently taken as the departure point for determining the standard of ‘unreasonableness’ for courts and tribunals. In Wednesbury, Lord Greene MR famously stated that the courts can intervene where a decision by a Minister or government body ‘is so unreasonable that no reasonable authority could ever have come to it’, a definition frequently critiqued as circular. Australian courts have seemed reluctant to either reject Wednesbury reasonableness because of this uncertainty or to expand its application. Continue reading
By Associate Professor Jeremy Gans
Elias v The Queen; Issa v The Queen Case Page
This year, the High Court heard its first ever case arising from Melbourne’s 1990s ‘gangland war’. Over seven years ago, Tony Mokbel, one of that war’s most prominent identities, failed to appear in Victoria’s Supreme Court part way through his trial for importing drugs in breach of federal law. Some initially speculated that, like many gangland figures before him, ‘Fat Tony’ had become one of the war’s victims. When he was found (alive) in Greece, it became clear (at least in hindsight) that the Supreme Court itself had erred in ruling that Mokbel was not a sufficient flight risk to justify keeping him in custody throughout a prosecution that had been much-delayed due to corruption in the police’s drug squad. Mokbel is now serving a 30 year sentence for drug offences committed before and during his escape, his sister-in-law received a two year sentence for defaulting on his bail surety and at least ten others were prosecuted and convicted for assisting in his escape.
The High Court appeal was brought by two brothers who sheltered Mokbel for months in Victoria, transported him across the country, hired a crew for his voyage to Greece and provided him with forged passports. For their efforts, George Elias and Chafic Issa were each sentenced to eight years imprisonment by the Victorian Supreme Court, one of the highest sentences ever awarded in Australia for attempting to pervert the course of justice. Their sentences were upheld in Elias v The Queen; Issa v The Queen  HCA 31, with the High Court ruling that it did not matter that federal law at the time provided for only a five year maximum sentence for the same offence. Continue reading
By Professor Loane Skene
Wallace v Kam Case Page
The recent case of Wallace v Kam  HCA 19, a unanimous judgment of the High Court of Australia, continues a trend of a rigorous application of the principles of causation in duty to warn cases within the context of medical negligence. While emphasising that patients have a legal right to make their own medical decisions, and that doctors have a legal duty to inform patients about material risks of a proposed treatment (as stated in Rogers v Whitaker  HCA 58) the judgment calls for more careful scrutiny of whether doctors should be held responsible for the patient’s injury or loss in certain duty to warn cases.
The judgment also answers a vital question about causation. If a doctor negligently does not inform a patient about two or more material risks of a treatment, is the patient entitled to compensation if he or she would have agreed to take the risk that materialised, but not a risk that should have been mentioned but did not materialise? The court held that the doctor would not be liable. The patient’s claim could only succeed if the doctor negligently failed to mention a risk that the patient would not have been prepared to accept; and that risk materialised. The patient could not succeed only by satisfying the court that the patient would not have agreed to the treatment if properly informed of the other risk; that is, but for the doctor’s negligence in not disclosing the other risk, the patient would not have had the treatment and suffered the injury. Proof of that matter might establish factual causation but not that the doctor should be held responsible (‘scope of liability’). Continue reading
By Michael Evans
Unit Trend Case Page
The High Court has had its first opportunity to decide a case on the general anti-avoidance rule in Australia’s Goods and Services Tax (GST) law, enacted more than a decade ago. In Commissioner of Taxation v Unit Trend Services Pty Ltd  HCA 16, the High Court unanimously decided that the Commissioner can apply the GST anti-avoidance rule, even when a taxpayer makes specific choices or elections to engage in corporate structures, decisions and deals that are expressly allowed in the law.
The decision confirms that the GST anti-avoidance rule in div 165 of the GST law (and the income tax anti-avoidance rule on which it is based) gives the Commissioner of Tax a broad power to deal with avoidance schemes. Importantly, it confirms that, as intended by parliament, s 165-5(1)(b) of the GST law limits the protection for taxpayers that could arise from such statutory choices, agreements and elections contained in the GST law. This broader approach replaces the narrower ‘choice principle’ that was found to apply in earlier tax anti-avoidance rules such as former s 260 of the Income Tax Assessment Act 1936 (Cth). The ‘choice principle’ as explained in W P Keighery Pty Ltd v Federal Commissioner of Taxation  HCA 2, was that the anti-avoidance rule cannot be interpreted to remove from taxpayers their choices to order their affairs as they saw fit. Continue reading
By Dr Katy Barnett
Beckett v New South Wales Case Page
In Beckett v New South Wales  HCA 17, the High Court overruled its own previous authority outlining the circumstances in which a person can sue for the tort of malicious prosecution. The tort of malicious prosecution allows a plaintiff who was the subject of malicious and unreasonable court proceedings to seek a civil claim for damages against the prosecuting party. The malicious and unreasonable proceedings are generally (but not always) criminal in nature. In order to make out the tort, a plaintiff must prove (among other things) that the prosecution ultimately terminated proceedings in her favour. In this case, the Director of Public Prosecutions had decided to discontinue criminal proceedings against the plaintiff after a retrial had been ordered by the New South Wales Court of Criminal Appeal. The question for the Court in this case was whether the action of the DPP constituted termination of proceedings in the plaintiff’s favour, or whether it was necessary for her to go further and prove her innocence. Continue reading