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  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
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.
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
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
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
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
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
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
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
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  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
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 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
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