By Laureate Professor Cheryl Saunders AO
The latest proposal to amend the Commonwealth Constitution to ‘recognise’ local government may go down in history as one of the most inept attempts at constitutional change in Australia. Insofar as it has an indirect link to the decisions of the High Court in Pape v Commissioner of Taxation  HCA 23 and Williams v Commonwealth  HCA 23 it merits a post on Opinions on High. In any event, there are lessons to be drawn from the history of this proposal, as a guide to the formulation and conduct of future referendum proposals.
Constitution Alteration (Local Government) 2013 (Cth) passed both Houses of the Commonwealth Parliament on 24 June 2013. The impetus for it derived from a long-held desire on the part of local government to be recognised in the Commonwealth Constitution as the third arm of Australian government. This project is fraught because recognition almost inevitably involves substantive change of some kind in the operation of the Australian federation, in which the relations between the other two arms of government already is under strain. A proposal cast in terms of symbolic recognition was rejected at referendum in 1988. An earlier proposal to establish a direct financial relationship between the Commonwealth and local government was rejected in 1974 (see here). Continue reading
The ACT government has introduced a bill into the ACT Legislative Assembly that proposes to create a new species of marriage in Australia. Almost instantly the prospect of the federal government taking action to overturn the law once it comes into effect was the subject of news attention. The constitutionally-minded turned their attention to the possibility and prospects of the High Court being called upon to determine the validity of this new form of marriage. See comments by Professor George Williams (also here) and Crispin Hull. We have previously noted that the ACT’s proposed laws depends on advice received from High Court Justice Gageler before he took on his current role. Continue reading
As noted earlier this week, settlement was in the wings for the Bell Group litigation. Yesterday afternoon, the case settled. The extended nature of the litigation led a variety of former judges to query whether civil litigation needs to be reformed.
Meanwhile, those of us who hoped that the Full Court of Western Australia’s decision would be clarified will have to wait for another case.
By Professor Michael Crommelin AO
Fortescue Metals Group Ltd v Commonwealth Case Page
The Minerals Resource Rent Tax Act 2012 (Cth) (MRRT Act) has been surrounded by political and legal controversy throughout its short life. The High Court’s unanimous rejection of a recent constitutional challenge has resolved the legal controversy. It remains to be seen whether, and when, the incoming Federal Government may resolve the political controversy by fulfilling its election pledge to repeal the Act.
In Fortescue Metals Group Ltd v Commonwealth  HCA 34, the plaintiff challenged the constitutional validity of the MRRT Act and three related Acts which imposed the MRRT (MRRT Legislation) in proceedings commenced in the High Court of Australia. The MRRT Act provides that a miner is liable to pay minerals resource rent tax (MRRT) assessed in accordance with the MRRT Act.
The plaintiff argued four grounds for invalidity of the MRRT Legislation: (1) discrimination between States contrary to s 51(ii) of the Constitution; (2) preference to one State over another contrary to s 99 of the Constitution; (3) contravention of the Melbourne Corporation doctrine established in the State Banking Case  HCA 26; and (4) contravention of s 91 of the Constitution which confirms the authority of a State to grant aid to mining. It is notable that the plaintiff did not invoke s 114 of the Constitution which prohibits the imposition by the Commonwealth of any tax on property of any kind belonging to a State.
The challenge failed on all grounds. Continue reading
The High Court recently granted leave to appeal on the Bell Group case, which, as the case page notes, is part of the infamous, long-running Bell litigation, involving twenty applicant banks and thirty respondent companies and liquidators. There have been rumours of settlement since July, and recent reports suggest that the case has been adjourned for six months and withdrawn from the High Court list in preparation for a settlement. If settlement occurs, this may be good news for Western Australians, as the litigation has 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. Continue reading
In a media release today, the High Court announced that it will make audio-visual recordings of hearings held in its Canberra building available on its website from 1 October 2013, supplementing written transcripts of the Court’s hearings that have been published on Austlii since 1994. The videos will be made available a few days after the hearing (to allow for confidential information, such as the suppressed names of witnesses, to be edited out), but the release observes that the delay is likely to reduce as experience with the procedure increases. The new policy applies to ‘all Full Court hearings in Canberra, other than Applications for Special Leave’.
The release notes that ‘[t]he Court’s decision to take these steps was made having regard to the nature of its jurisdiction and is not intended to set any precedent for other courts’. However, it does partially follow precedents set in other top national courts. Continue reading
The High Court spent three days in the past week (including two in Perth) sorting through applications to bring appeals before it. The Court turned down some high profile cases (including The Age’s battle to resist revealing its sources for its reporting on MP Joel Fitzgibbon and businesswoman Helen Liu and Hancock Prospecting’s attempt to retain a stake in a Pilbara iron ore venture), while agreeing to hear appeals from six judgments: Continue reading
One must wonder whether sometimes actions in passing off or trademark infringement are used in an oppressive way. A group of English parents whose children attended a school called Belleville Primary set up a micro-brewery called Belleville which produces Belleville pale ale. They now face legal action from US drinks manufacturer Anheuser-Busch, the makers of Budweiser. Anheuser-Busch claims that there is a chance that Belleville pale ale may be confused with its product, Belle-Vue, a fruit flavoured beer. Continue reading
The 2001 federal election was shaped by the maritime rescue of 438 people by a cargo vessel, the MV Tampa. When the ship’s captain, Arne Rinnan, attempted to take the rescuees to Christmas Island, the Howard government responded by closing the port, an action whose validity under domestic law was upheld by the Full Court of the Federal Court (including then Justice Robert French).
This week, two aspects of the Tampa affair’s aftermath reached the High Court. Continue reading