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
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
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
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
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  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
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  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  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  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  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.
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
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  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
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
An appeal against a decision of the ACT Court of Appeal on dangerous recreational activities in the context of the tort of negligence that was to be heard by the Full Court on 2 December has now been discontinued by consent. The respondent suffered a broken neck and tetraplegia after Continue reading
By Anne Carter
McCloy Case Page
In McCloy v New South Wales  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  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  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 ).
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  HCA 31 and Coleman v Power  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 ). He considered that the expression ‘proportionality’ better captured the ‘actual process of constitutional reasoning’ (at ). Continue reading
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
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
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