Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd

The High Court has dismissed an appeal against a decision of the Full Federal Court of Australia regarding the principles governing the causal link required for the imposition and calculation of an account of profits where profits were made by a knowing participant in a dishonest and fraudulent breach of fiduciary duty, and has allowed a cross-appeal by a majority, holding that there was no reason to restrict the profits recoverable to five years. Consequently a knowing assistant of a dishonest and fraudulent breach of fiduciary duty was required to disgorge the total capital value of the business it acquired by reason of the breach.

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Rodi v Western Australia

The High Court has allowed an appeal against a conviction for possessing cannabis with intent to supply. After executing a search warrant at the accused’s home in the Perth suburb of Madeley, police found almost a kilogram of cannabis head material inside the home and three cannabis plants behind the house. The accused’s case was that the cannabis was for personal use and was harvested from two of the three plants. Anticipating that evidence, the prosecution called Detective Sergeant Andrew Coen, who testified that a cannabis plant typically yields 100 to 400 grams of cannabis and that ‘head material’ at the upper range is rare. Following his conviction, the accused appealed, relying on new information that Coen had testified in two earlier trials that cannabis plants typically yield 300 to 600 grams of cannabis head material. After hearing evidence from Coen as to why he had changed his view prior to the accused’s trial, a majority of Western Australia’s Court of Appeal dismissed the appeal.

The High Court (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ) unanimously allowed the appeal. The joint judgment held (at [30])  the factors relied on by the Court of Appeal to dismiss the appeal – that the accused bore the onus of proof on the question of intent, and that the accused had not called his own expert testimony, or objected the Coen’s trial testimony, or that the prosecution’s non-disclosure of Coen’s testimony were understandable – were ‘irrelevant to whether there was a significant possibility of a different verdict if the new evidence had been before the jury’. Nothing turns on whether only Coen’s earlier testimony or also Coen’s testimony at trial is treated as fresh evidence ([31]); either way, Coen’s earlier testimony was ‘distinctly apt’ to improve the accused’s prospects of a favourable verdict. Continue reading

Pipikos v Trayans

The High Court has dismissed an appeal against a decision of the Supreme Court of South Australia regarding the principles governing the doctrine of part performance (namely, when an otherwise unenforceable oral contract over land can be recognised by the court because of acts of part performance of the agreement, so as to support an award of specific performance). The question raised was whether the requirements of the doctrine of part performance should be relaxed in line with the liberal test proposed by the House of Lords in Steadman v Steadman [1976] AC 536, which merely required that the acts pointed on the balance of probabilities to the formation of a contract. The Australian test has hitherto reflected that expressed in Maddison v Alderson (1883) 8 App Cas 467, which requires the acts of part performance to be unequivocally referable to some such contract as alleged. The High Court confirmed that the Australian position remains the same, and declined to adopt Steadman v Steadman.

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The Queen v Dennis Bauer (a pseudonym)

The High Court has allowed a Crown appeal against a decision of Victoria’s Court of Appeal that had quashed the defendant’s convictions on 18 counts of sexual offences. When he was first tried in 2014, the defendant was charged with 37 counts against five complainants related to events between 1967 and 1998 and convicted of 33 of those. However, the Court of Appeal quashed those convictions in 2015, criticising the prosecution for overloading the indictment. The defendant then faced a series of separate (and in five instances aborted) trials relating to the three of the complainants and was acquitted in relation to two of them. The High Court appeal concerns the defendant’s 18 convictions a 2016 trial in relation to the third complainant, his foster daughter, for alleged sexual offending between 1988 and 1998, when she was aged between 4 and 15 and the defendant was between 42 and 53.

In 2017, the Court of Appeal quashed the defendant’s convictions for the second time and ordered a new trial, on three broad grounds. First, that the jury should not have been shown a recording of the complainant’s evidence at a previous trial, because her expressed strong preference not to testify was not sufficient to justify such a step. Second, that the jury should not have been told of evidence of uncharged sexual offences by the defendant against the complainant, because such evidence did not satisfy the requirement of ‘significant probative value’. Third, that the jury should not have been told that the complainant described the accused’s offending to a school friend in 1998, as there was no evidence that the events were ‘fresh in her memory’ when she described them and her description was too generic to have any probative value.

The High Court (Kiefel CJ,  Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ) unanimously allowed the Crown’s appeal, rejecting all three grounds of appeal relied upon by the Court of Appeal. Continue reading

Mighty River International Ltd v Hughes; Mighty River International Ltd v Mineral Resources Ltd

The High Court has published its reasons for dismissing two appeals against a decision of the Court of Appeal of the Supreme Court of Western Australia on deeds of company arrangement. Part 5.3A of the Corporations Act 2001 (Cth), which deals with the administration of companies with solvency issues, provides for companies and their creditors to enter into a deed of company arrangement to either prevent the company from becoming insolvent, or, at least, to provide creditors with a better return than would result from a winding up.

The appellant Mighty River and Mineral Resources Ltd (the first respondent in the second appeal) were both creditors of Mesa Minerals Ltd, which was placed into voluntary administration and had administrators appointed (the respondents Hughes and Bredenkamp). Mesa’s creditors voted in favour of the Administrators’ proposal to draw up a deed of company arrangement that placed a moratorium on creditors’ claims, required the administrators to conduct further investigations and then report on varying the deed within six months. Mighty River’s efforts to have the deed declared void were unsuccessful at first instance and before the WASCA.

After a hearing before the Full Court on 19 June, the High Court dismissed the appeals, with Kiefel CJ stating that the Court, ‘at least by a majority’, was of the view that the appeals be dismissed. On 12 September Continue reading

HFM043 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the construction of derivative refugee status provisions. In September 2014 the Secretary of the Department of Justice and Border Control denied the appellant’s application for refugee status. In March 2015, the Nauruan Refugee Status Review Tribunal affirmed that decision, and the appellant appealed to the Supreme Court. In April 2016. the appellant married a man who had been recognised as a refugee. The appellant’s lawyers made an application for derivative refugee status on the basis of her dependency on her husband’s status, which was granted in August 2016, and for which she was granted a ‘Refugee Determination Record’ stating that the Secretary had determined the appellant was ‘recognised as a refugee’ (at [7]–[8]). In December 2016, the process for acquiring derivative status was changed, including s 31(5), which was deemed to have commenced in May 2014, and provided that ‘[a]n application made by a person under section 31(1)(a), that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time’.

In June 2017, the Supreme Court held that the Tribunal had made an error of law in failing to adjourn its hearing to allow the appellant to Continue reading

Hossain v Minister for Immigration and Border Protection

The High Court has dismissed an appeal against a decision of the Full Federal Court on jurisdictional error and errors of law in the context of partner visa applications. Hossain, a Bangladeshi citizen, was refused a partner visa on the basis that the criteria in the Migration Regulations 1994 (Cth) had not been met. The Administrative Appeals Tribunal affirmed that decision on its merits, ruling that Hossain had not met the requirements of submitting an application within 28 days of ceasing to hold a previous visa, unless the Minister was ‘satisfied that there are compelling reasons for not applying’ this requirement, and that he did not have outstanding debts to the Commonwealth. Hossain then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision (by which time he had met the debt payment criteria) on the basis of jurisdictional error. In those proceedings, the Minister conceded that the Tribunal had erred in addressing whether there were compelling reasons not to apply the timing criterion as at the time of the application for the visa: it should have examined whether those compelling reasons existed at the time of its own decision. The FCCA rejected the Minister’s contention that this was nonetheless not a jurisdictional error because the public debt criterion had still not been met. The FCAFC majority (Flick and Farrell JJ) agreed with the FCCA that the error was jurisdictional, but ultimately agreed with the Minister that this error had not removed the Tribunal’s authority to affirm the delegate’s decision (at [13]). Mortimer J, in dissent, also held that the error was jurisdictional, but concluded that because Hossain had repaid the debt, the public interest criterion would no longer be an issue for the Tribunal, and the relief he sought could be granted (see [14]ff).

The High Court (Kiefel CJ, Gageler and Keane JJ, Nettle J, Edelman J) unanimously dismissed the appeal. The joint judges held that the Tribunal’s error in relation to timing did not rise to the level of jurisdictional error. Edelman J (with whom Nettle J agreed), also held that the error was not jurisdictional because it was neither a fundamental error nor one that could have affected the Tribunal’s decision: the ‘lack of materiality’ meant the error was not jurisdictional.

After reviewing the facts and decisions below, the joint judges turned first to conceptual debates about the term ‘jurisdiction’ (see [17]–[19]), noting that the High Court in Kirk v Industrial Court (NSW) [2010] HCA 1 had picked up Jaffe’s emphasis on jurisdiction goes to the gravity of an organisational procedural error when it ‘express[ed] the constitutionally entrenched minimum content of the Continue reading

The Queen v Falzon

The High Court has allowed a Crown appeal concerning the prosecution’s use of evidence of large amounts of cash found at the defendant’s premises to support charges of trafficking cannabis. The defendant was charged with possessing and cultivating cannabis for sale at two properties. His defence was that the cannabis was for his personal use or for gifts to others. The prosecution presented evidence of $120,000 in cash hidden at his home address. The jury convicted him of cultivating cannabis for sale at one of the properties and possessing it for sale at another. However, his appeal to Victoria’s Court of Appeal was allowed on the basis that the cash could not be properly used to convict him, because (a) ‘insofar as the evidence of the possession of the cash was admitted on the basis that it was evidence of past trafficking, it was irrelevant and therefore inadmissible’ (VSCA at [146]) and (b) if it is relevant, ‘such probative value must be low, in circumstances where the risk of the misuse of the evidence is undoubtedly high.’ (VSCA at [148]). On further appeal to the High Court, the Court unanimously allowed the Crown’s appeal at the conclusion of the hearing, with reasons to follow.

The joint judgment (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ) reviewed lower court rulings on the use of cash as evidence in drug trafficking prosecutions (at [34]-[39]), commencing with a 1989 ruling by the Northern Territory Court of Appeal. The joint judgment observed that that ruling by an Australian intermediate court was not followed by other Australian intermediate courts and instead it was the dissenting ruling in that case that ‘has ultimately prevailed in subsequent authority’ (at [34]). Turning to the relevance of the cash in the case before it, the the joint judgment held that the trial judge’s and dissenting judge’s rulings that the cash was admissible was ‘plainly correct’ (at [40]). Continue reading

Federal Commissioner of Taxation v Thomas; Federal Commissioner of Taxation v Martin Andrew Pty Ltd; Federal Commissioner of Taxation v Thomas Nominees Pty Ltd; Federal Commissioner of Taxation v Thomas

The High Court has allowed one appeal, partly allowed a second appeal, and dismissed two appeals from a decision of the Full Federal Court on the taxation of franked distributions from trusts. In 2006 to 2008, the trustee (Thomas Nominees Pty Ltd) of a trust (the Thomas Investment Trust), received franked distributions within the meaning of div 207. Division 207 of pt 3-6 of the Income Tax Assessment Act 1997 (Cth) lays out the tax implications of trust income that includes franked distributions. In those years, the trustee passed resolutions that sought to distribute the franking credits between the trust’s beneficiaries separately from, and in different proportions to, the income that comprised the franked distributions (see details at [20]ff). The trustee referred to this as the ‘Bifurcation Assumption’, and lodged tax returns on the basis that this was legally effective under div 207. In 2010, the Queensland Supreme Court issued ‘directions’ to the Trustee that those resolutions did give effect to the Bifurcation Assumption, and that this was legally effective under div 207.

Two of the beneficiaries (the taxpayers) filed appeals in the Federal Court under pt IVC of the Taxation Administration Act 1953 (Cth), arguing that the Bifurcation Assumption was not legally effective under div 207 (see at [34]ff). The central issue before the High Court was whether the FCAFC was bound by the directions given by the QSC and its holding that the Bifurcation Assumption was in line with div 207, and, if the FCAFC was not so bound, how div 207 should apply to the trustee’s resolutions.

The High Court (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ, and Gageler J) unanimously held that the FCAFC erred in holding that it was bound to follow the QSC ruling. The FCAFC ‘misunderstood and misapplied’ the central case on directions, Continue reading

Minister for Immigration and Border Protection v SZVFW

The High Court has allowed an appeal against a decision of the Full Federal Court on notification of hearing requirements in refugee application hearings and the task of appellate courts in reviewing decisions that are purportedly ‘legally unreasonable’. Under s 426A of the Migration Act 1958 (Cth), where an applicant is invited to appear before the Tribunal but does not do so, the Tribunal ‘may’ make a decision on the review without taking further action to enable the applicant’s appearance before it. After the Minister refused the respondents protection visa applications, the respondents filed an application for review by the Refugee Review Tribunal but did not respond to the Tribunal’s requests for more information or attend a scheduled hearing. The Tribunal’s communications were sent only by post, and not also by phone or email, even after the non-response from the respondents. The FCAFC held that the Tribunal acted unreasonably in failing to attempt to contact the respondents by phone or email. The FCAFC also held that the Minister had failed to show that the primary judge’s evaluation of that unreasonableness involved any appealable error of law or fact analogous to the error that must be established in relation to discretionary judgments, as described in House v The King [1936] HCA 40.

The High Court unanimously allowed the appeal in four judgments, holding that the House principles had no application in this appeal, that the Tribunal did not act unreasonably in failing to take further action to contact the respondents, and that the FCAFC should have so decided. Kiefel CJ, Gageler J and Edelman J each agreed with the orders proposed by Nettle and Gordon JJ.

Nettle and Gordon JJ held that the FCAFC’s approach and decision were incorrect: the ‘only question’ for the FCAFC and the High Court was whether the Tribunal’s exercise of its s 426A power was beyond its power for being legally unreasonable: it was not (at [76]). Turning first to the nature of the court’s task in assessing whether a decision is legally unreasonable, Continue reading

Rozenblit v Vainer & Anor

The High Court has allowed an appeal from the Victorian Court of Appeal with regard to an order for costs arising from litigation between former business partners about a transfer of shares in a tyre recycling company, VR Tek Global Pty Ltd. The case concerned a stay of proceedings where the appellant was impecunious and his action would effectively be terminated by a stay.

Mr Rozenblit brought proceedings in the Supreme Court of Victoria in which he alleged that the first respondent, Michael Vainer, had fraudulently, and without his knowledge or consent, transferred shares owned by him to the second respondent, Alexander Vainer (the first respondent’s father) and that the now-liquidated company’s assets were subject to a trust in his favour. After pleadings had closed, Mr Rozenblit sought leave to amend his statement of claim in three separate summonses. While leave to amend pursuant to the third summons was granted, the judge stayed Mr Rozenblit’s claim pursuant to r 63.03(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) until the interlocutory costs orders with regard to the first and second (unsuccessful) summonses were paid. Rule 63.03(3) provided:

“Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so—

(a) if that party is the plaintiff, the proceeding shall be stayed or dismissed;

(b) if that party is a defendant, the defendant’s defence shall be struck out.”

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Amaca Pty Ltd v Latz; Latz v Amaca Pty Ltd

The High Court has allowed an appeal in part from the Full Court of the Supreme Court of South Australia on the part of the appellant, Amaca Pty Ltd, and dismissed the cross-appeal of the respondent, Mr Latz. The case concerned an entitlement to damages reflecting the loss of an entitlement to a superannuation pension and an age pension as a result of a reduced life span.

Orders were pronounced on 11 May 2018, although reasons were published a month later on 13 June 2018, because of the parlous state of Mr Latz’s health. Mr Latz had contracted malignant mesothelioma at some time in 1976 or 1977 as a result of inhaling asbestos fibre while cutting and installing fencing which had been negligently manufactured by Amaca Pty Ltd. The mesothelioma did not become symptomatic until 2016. In October 2016, Mr Latz’s condition was diagnosed as terminal. He had retired from his job in the public service nine years earlier, and was receiving a superannuation pension under the Superannuation Act 1988 (SA) Part 5, and an age pension under the Social Security Act 1991 (Cth) Part 2.2. It was found that the mesothelioma had cut his life expectancy by 16 years. Mr Latz sought compensation for the reduction to his superannuation pension and age pension, which he would have continued to receive for a further 16 years but for the negligence of Amaca Pty Ltd.

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Trkulja v Google Inc

Mitch Clarke, ‘Courting Communication Anachronisms: Trkulja v Google [2017] HCATrans’ (30 November 2017).

The High Court has allowed an appeal against a decision of the Victorian Court on Appeal on whether a search engine can be held liable for defamation from the results of a search. The appellant sued the respondent search engine company after results of searches such as ‘Melbourne criminal underworld photos’ showed images of him with various convicted Melbourne criminals, as well as articles and links which imputing he was associated with those criminals. Moreover, typing his name into the search bar led to autocomplete results that associated him with various criminal figures. The defendant sought to summarily dismiss the pleadings on the basis that (i) that it did not publish the images matter or the web matter; (ii) that the matters in issue were not defamatory of Mr Trkulja; and (iii) that Google was entitled to immunity from suit. The trial judge held that the appellant’s defamation proceeding should not be set aside. However, on appeal to the VSCA, it was held that the primary judge should have struck the case out on the second basis that the search results could not be defamatory because the results were produced by algorithm, and because a reasonable internet user would understand that the plaintiffs’ images appeared alongside other, clearly non-criminal, people.

The High Court set aside the VSCA’s findings. In a unanimous judgment, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ dealt with two issues: the question of whether Google was a publisher (and the relevance of defences in that determination), and the question of the test for whether the search results were capable of conveying the defamatory imputations.

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Minogue v Victoria

The High Court has answered the questions in a special case on parole orders for prisoners who murdered a police officer, and its applicability to the plaintiff. The plaintiff was convicted of the murder of a police officer in a bombing in Russell St, Melbourne, and sentenced to a non-parole period of 28 years. After that non-parole period expired in September 2016, the plaintiff applied for parole, and that application proceeded through the parole review through October 2016. On 14 December 2016, s 74AAA was inserted into the Corrections Act 1986 (Vic), and provided new conditions for making parole orders for prisoners who murdered a police officer. It provides:

(1) The Board must not make a parole order under section 74 or 78 in respect of a prisoner convicted and sentenced (whether before, on or after this section comes into operation) to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless an application for the parole order is made to the Board by or on behalf of the prisoner.

Sub-section 3 provides that the Board ‘must have regard to the record of the court in relation to the offending, including the judgment and the reasons for sentence.’ Sub-section 6 defines ‘police officer’ to include an officer who was performing the duties or exercising the powers of a police officer at the time of the murder, or a murder that ‘arose from’ or ‘was connected’ with the officer’s role as a police officer, regardless of whether the officer was performing the duties or exercising the powers of a police officer at the time of the murder.

The plaintiff had commenced proceedings before the High Court in January 2017, seeking declarations that s 74AAA did not apply to him or his parole application (see [12]). In December 2017, s 127A was inserted into the Corrections Act, which purports to make s 74AAA applicable to Continue reading

CRI028 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the ‘internal relocation principle’ in refugee status determinations. The appellant, a Sunni Muslim from the ‘K District’ in the province of Punjab, moved to Karachi in 2004, departed Pakistan in 2013, and applied for asylum in Nauru in 2014. The appellant claimed he held a well-founded fear of persecution by the Muttahida Quami Movement (MQM) for the imputed political opinion of opposing MQM, and feared harm from them throughout Pakistan. The Secretary of the Department of Justice and Border Control refused the application. On appeal, the Nauruan Refugee Status Review Tribunal found that the appellant had a well-founded fear of persecution in Karachi, it affirmed the Secretary’s decision because the appellant could return to K District where he would not face a reasonable possibility of persecution. The NRSC upheld the Tribunal’s determination.

The High Court unanimously allowed the appeal. The joint judges (Gordon and Edelman JJ) held that the Tribunal fell into error in applying the principles on internal relocation, and hence the NRSC should have allowed the appeal. After laying out the provisions of the Refugees Act (at [18]ff), the joint judges turned to the internal relocation principle, reiterating that where a person claiming refugee status on the basis of a well-founded fear of persecution, and there is an area within their home country in which they would not have that fear, and the person could reasonably be expected to relocate there, then that person is not outside their home country due to a well-founded fear of persecution (see [24]). Continue reading

EMP144 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status and complementary protection. The appellant is a Nepali whose family were all members of the pro-royalist political group known as the RPP(N), which he joined in 2008 and in which he was active as an official. The appellant’s family had suspected that their brother had been disappeared by the Nepali Maoists (the NCP-M), and the appellant claimed that, from 2011 onwards, the NCP-M began to persecute him and both threatened and physically attacked him and his family in several separate incidents (at [6]ff). The Nauruan Refugee Status Review Tribunal found that the appellant had suffered serious harm amounting to persecution, but ruled that because the harm was ‘localised’, the appellant could reasonably be expected to relocate elsewhere in Nepal and live a normal life without hardship, and was thus neither a refugee nor entitled to complementary protection (at [12]). The NRSC upheld that ruling, holding that the Tribunal had not erred in applying a reasonable internal reloaction test, and had not failed to take into account all matters relevant to the appellant’ complementary protection claim, including the reasonably practicality of relocating within Nepal, and that the Tribunal had not failed to afford him procedural fairness (at [13]).

The Court (Kiefel CJ, Gageler and Nettle JJ) dismissed the appeal. Their Honours began by noting that the relevant statutory and treaty provisions are set out in CRI026 (at [16]). The Continue reading

DWN027 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status and complementary protection. The appellant was a Sunni Pashtun from who sought refugee status or complementary protection on the basis of a well-founded fear of persecution by the Taliban in Peshawar for his actual or imputed political beliefs, based on series of attacks against him and his family members by the Taliban, the most recent of which related to extortion and coercion attempts, which the appellant refused to submit to (see [4]ff). The Nauruan Refugee Status Review Tribunal found that the appellant faced a real threat of harm, but that he could also relocate to another area in Pakistan to avoid that harm, and consequently he was neither a refugee nor owed complementary protection by Nauru (at [7]). The NRSC upheld the Tribunal’s decision, holding that it had not erred in applying a reasonable internal relocation test, and did not fail to take into account the interests of the appellant’s children in finding that relocation was reasonable (at [8]).

The High Court (Kiefel CJ, Gageler and Nettle JJ) dismissed the appeal. Their Honours noted that the relevant statutory and treaty provisions were outlined in CRI026 (at [11]), and rejected DWN027’s arguments on ground one, on the relevance of the ability to relocate to the entitlement to complementary protection, as being ‘substantially the same’ as those given in CRI026, and rejected for the reasons given in that matter (at [12]).

Turning to Ground 2, that the Tribunal failed to take into account Nauru’s international obligation to give primary consideration to the best interests of the Continue reading

CRI026 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status, complementary protection obligations, and internal relocation. The appellant is a Pakistani national who had spent much of his life in Karachi, but also lived in a range of other districts in Pakistan. He arrived in Nauru and claimed refugee status on the basis of fears that he would be harmed by members of the Muttahida Quami Movement (MQM), whose leader he had injured at a cricket game in Karachi. He claimed that MQM viewed him as a political dissident, and could harm him anywhere in Pakistan, and that the government could not protect him due to its connections with and support for MQM. The Nauruan Refugee Status Review Tribunal accepted that there was a real possibility that he may be harmed if returned to Karachi, but only for reasons of personal revenge and not for his political beliefs, and that the appellant could avoid that harm by relocating to one of the areas in which he had family connections and where MQM had little support (see [6]ff, [16]). The Nauruan Supreme Court dismissed an appeal against that decision, holding that the Tribunal had not erred in applying a reasonable internal relocation test to the appellant’s claim (at [9]).

The High Court (Kiefel CJ, Gageler and Nettle JJ) unanimously dismissed the appeal. Their Honours briefly noted the Nauruan statutory provisions: that s 4 of the Refugees Act provides that Nauru must not return a refugee to the frontiers of territories where that person would be persecuted, or return any person to a frontier in breach of its international obligation; that Nauruan law incorporates the definition of refugee from the Refugees Convention; and that ‘complementary protection’ applies to people who are Continue reading

Re Gallagher

The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the Senate on s 44(i) eligibility. Section 44(i) of the Australian Constitution provides that any person who is ‘is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives’. Senator Katy Gallagher (who first became a senator by filling a vacancy in 2015), lodged her nomination for the 2016 election on 31 May and was duly elected on 2 July 2016. At the date of nomination, she was a British citizen and thus was a citizen of a foreign power within the meaning of s 44(i). In August 2016, the UK Home Office acknowledged her renunciation of that citizenship. In December 2017, the Senate referred questions over Senator Gallagher’s eligibility to the Court of Disputed Returns.

The Court (Kiefel CJ, Bell, Keane, Nettle, and Gordon JJ, Gageler J, Edelman J) held that Gallagher was not eligible to be chosen by reason of s 44(i), and consequently there was a vacancy in the representation of the ACT which should be filled by a special count of the ballots.

The joint judges (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) first reiterated the principles laid down by the Court in Sykes v Cleary [1992] HCA 60 and Re Canavan [2017] HCA 45 (see [7]ff). Section 44(i) disqualifies foreign citizens from being chosen as a Senator or MP, and has this effect regardless of that person’s knowledge of that status or intention to act on the duty of allegiance to a foreign power. Foreign citizenship, and the ability to renounce that citizenship, is determined by reference to the laws of relevant country. In Re Canavan, the Court recognised an implicit qualification to s 44(i) arising from the ‘constitutional imperative’ underlying that section: that no Australian citizen could be ‘irremediably’ prevented by foreign law from participating in Australia’s representative government, and that, at least, this could be so where that person has taken all reasonable steps under the foreign law to renounce that citizenship (see [11]). Gallagher’s submission here was that British law should be read as operating in exactly this way (at [12]).

Turning to the details of British renunciation law, the joint judges noted that the British Nationality Act 1981 (UK) allows a person to renounce British citizenship, and on registration of that declaration by the Secretary of State, that person ceases to be a British citizen (at [14]). The renunciation must be made in a particular form, Form RN, documents proving British citizenship must be provided, and a fee must be paid (at [15]). Gallagher completed the form on 20 April 2016, provided her birth certificate and Australian passport, and credit card details, which was debited on 6 May 2016 (at [16ff]). But in July 2016 the Home Office requested documents showing that she was indeed a British citizen (here, her parents’ birth and marriage certificate), which she did: sometime before 30 August 2016, the Home Office advised Gallagher that the declaration had been registered (at [18]).

Before the Court of Disputed Returns, Gallagher contended that by 20 April 2016, or at the latest by 6 May 2016 (the date of debiting), she had taken all steps required under British law that were ‘within her power’ to renounce her citizenship: it was then for the Secretary of State to choose the time and manner to perform the duty under that law, and that discretion was an ‘irremediable impediment’ to Gallagher’s participation in the 2106 election (see [19]). The Commonwealth Attorney-General contended that it is not enough for a person to merely take steps to renounce, unless the foreign law provides an irremediable impediment to renunciation: British law does not do so as it does not make it impossible or not reasonably possible to renounce (at [21]).

The joint judges accepted the Commonwealth’s argument as clearly reflecting the law stated in Sykes v Cleary and Re Canavan (at [22]). The constitutional imperative is narrowly focused on foreign laws that prevent a person from ever ‘freeing’ himself or herself of the citizenship of that foreign country, thus preventing them from lifting the disqualification in s 44(i) (at [23]ff). Foreign laws that require particular steps be taken will not ‘irremediably prevent’ renunciation: it must rather be an insurmountable obstacle, or a process that was unreasonable for, for example, putting the renouncer at personal risk (at [27]ff). The joint judges also explicitly rejected Gallagher’s submission that it is not sufficient that a person only take all steps reasonably required for the exception to s 44(i) to apply: the foreign law must also itself ‘irremediably prevent’ renunciation (at [30]ff). The joint judges added that the requirement of taking all those steps, even where the law prevents renunciation, is required by s 44(i)’s concerns about the duty or allegiance to a foreign power: taking those steps is a manifestation that the person has done all they can (at [32]). Gallagher could not identify any aspect of British law that would constitute an irremediable impediment, and that a decision might not be made in time for a particular person’s nomination for an election does not constitute an irremediable impediment (see [37]ff).

Gageler J agreed with the responses given by the joint judges, and with their reasons, adding further reasons explaining his Honour’s view of the constitutional imperative. Gageler J emphasised that the implied exception avoids rigidly operating in a way that undermines the system of responsible and representative government that it aims to protect; namely, that arbitrary or intransigent foreign laws cannot frustrate the ability of Australian citizens to participate in Australian government (at [43]). Specifically, it aims at allowing Australian citizens who irremediable retains foreign citizenship; who have attempted to renounce but are prevented from doing so (at [44]). It is not engaged merely because a person has taken all reasonable steps and is awaiting the completion of that process: ‘Retention of foreign citizenship can hardly be said to be irremediable while it remains in the process of being remedied’ (at [45]). Instead, the implied exception can only be engaged if and when the process of renunciation turns out, for practical purposes, to be one that will not permit renunciation, ‘requiring if not that an impasse has actually occurred then at least that an impasse can be confidently predicted’ (at [45]). Gallagher remained a citizen of a foreign power (at [46]), and the precise timing of the 2016 election has no bearing on the disqualification requirements in s 44 (see at [47]ff).

Edelman J also agreed with the responses given by the joint judges, agreeing with ‘generally those [reasons given] in the joint judgment’ (at [69]), and offered his own reasons on the constitutional imperative and non-recognition of foreign laws. Edelman J first noted that foreign laws will generally not be recognised where they are inconsistent with local policy or the maintenance of local political institutions (at [52]). This rule has been applied to foreign laws on citizenship, notably by Brennan J in Sykes v Cleary, who used recognition as an ‘anterior question’ to be considered prior to the application of s 44(i): ‘that whether a person was a subject or citizen of a foreign power was a question for the law of that foreign power, subject to exceptions recognised by international law as well as exceptions sourced in public policy derived from both common law and the Constitution‘ (at [53]), such as a ‘mischievous’ foreign statute conferring citizenship on all Australians to disqualify them from their own Parliament (at [54]). Edelman J noted that it was unnecessary in this matter to consider if any further exceptions should exist: while Gallagher’s arguments suggested that parts of the British law should not be ‘recognised’ she did not focus on the anterior question and instead ‘correctly assumed that none of the existing, limited exceptions applied to prevent recognition of the foreign law’: at [55]).

Turning, then, to the implied constitutional qualification, Edelman J saw s 44(i) against the backdrop of other limitations on participation in government in the Constitution, and as focusing on preventing foreign laws from ‘stultify[ing] a persons’ qualified ability to participate’ (at [58]). The ‘irremediable’ aspect includes situations where the foreign law would make participation permanently impossible (at [59]), though it also extends to laws that have the practical effect of imposing unreasonable obstacles to renunciation (at [60]). Edelman J rejected Galalgher’s submission that the British law here involved unreasonable obstacles, specifically, the action of a foreign official: while some circumstances might involve foreign officials making unreasonable requests, or unreasonably refusing to exercise discretion, that is not clear in this situation (see at [64]ff, and [68]):

Ultimately, perhaps the most fundamental difficulty for Senator Gallagher’s submission that actions of foreign officials should be automatically excluded by the implication is that the submission shears the constitutional implication from its rationale of ensuring that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. The submission treats as an ‘unreasonable obstacle’ falling within the implication any foreign law that does not irremediably prevent participation, but which might have an arbitrary or discriminatory effect. This would require a different implication, one which is lacking in any textual or structural constitutional foundation.

Gallagher’s vacancy will be filled by a special count of the ballots. The directions needed to give effect to that count will be made by a single Justice (Answer to Question (b)).

High Court Judgment [2018] HCA 17 9 May 2018
Result Vacancy in the Senate for the representation of the ACT for which Gallagher was returned, to be filled by special count
High Court Documents Re Gallagher
Full Court Hearing [2018] HCATrans 46 14 March 2018
Hearings, Kiefel CJ [2018] HCATrans 14 12 February 2018
[2018] HCATrans 1 19 January 2018

ORDER

The questions referred to the Court of Disputed Returns by the Senate be answered as follows:

Question (a)

Whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which Katy Gallagher was returned?

Answer

Yes.

Question (b)

If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any direction necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Unnecessary to answer.

Collins v The Queen

The High Court has allowed an appeal by a man convicted of four counts of sexual offences, including rape, alleged to have been committed in January 2000. The complainant, then aged 19, answered a newspaper ad for a nanny to accompany the accused, then aged 61, his partner and child on a sailing trip, After an initial interview, the complainant returned for a further interview a week later. According to the complainant, at around 11pm on the yacht, she had a shower and was then shaved and raped by the accused. The prosecution case included comments she made the next morning to a friend and her mother the next morning, and the results of a police search warrant on the yacht two weeks later that found a razor with her DNA on it. At the trial, the accused formally admitted that he and the complainant had had sex on the yacht that evening.

At the trial in 2014, the complainant’s mother testified that, on the morning after the alleged rape, the complainant ‘phoned me to tell me that she had been raped’. In cross-examination, she was given a transcript of evidence that she she gave at the accused’s committal in 2007, where she had said that the complainant had told her that morning that ‘I think I have been raped’ and that ‘I had some wine and I felt funny and I don’t remember every – anything after a certain time’. Asked if she agreed that she gave that evidence, she said that she did. This part of the cross-examination concluded:

When you gave evidence back on the 21st of September 2007, was better than it is now? Yes. I would say so, yes.
And when you gave that evidence, that was the best recollection you could give to the court of what she said to you? Yes. I would say so, yes.

The trial judge directed the jury on this exchange as follows:

That inconsistency between what the mother told the committal court seven years ago and what she told today, depending upon your view of it, impacts, potentially upon the mother’s credibility and reliability. But what the mother said to the committal court seven years ago is not evidence of the fact that the complainant said those things to her. It’s not evidence of the truth of the contents of the statement if you can follow that logic. It impacts upon the particular witness’s credibility who’s giving the evidence.

On appeal, the Queensland Court of Appeal accepted that the trial judge’s direction was incorrect, but dismissed the appeal on the ground that the misdirection caused no substantial miscarriage of justice to the accused.

The High Court (Kiefel CJ & Bell, Keane & Gordon JJ, Edelman J concurring) first considered whether or not the trial judge misdirected the jury. Continue reading

Plaintiff M174/2016 v Minister for Immigration and Border Protection

The High Court has decided a special case on ‘fast track reviewable’ refugee visa decisions in Pt 7AA of the Migration Act 1958 (Cth) and the operation of s 57(2). Section 57(2) provides that, in considering a visa application, the Minister must give particulars of ‘relevant information’ to the applicant in a way that the Minister considers is appropriate in the circumstances; ensure, as far as is reasonably practicable, that the applicant understands why that information is relevant; and invite the applicant to comment on it. Pt 7AA provides the structure for fast track review, which requires that ‘fast track reviewable’ decisions by the Minister be automatically reviewed by the Immigration Assessment Authority to affirm the decision or remit it for further consideration.

The plaintiff, an Iranian citizen, applied for a temporary protection visa on the basis that he was a Christian and would face a real chance of harm if returned to Iran, and became a ‘fast track applicant’ (see at [54]). In support of this application, he stated that he regularly attended a Melbourne church, and submitted a letter of support from the Reverend of that church (at [55]). With the plaintiff’s consent, the Minister’s delegate contacted the Reverend, who mentioned that he attended the church only irregularly: the delegate did not share the file note mentioning this response with the plaintiff or invite any comment on the regularity of his attendance (at [57]). The delegate’s refused to grant a temporary protection on the basis that he had not genuinely converted to Christianity and would not face persecution on return to Iran, based partly on Reverend’s information about church attendance (see [59]ff).

On review, the Authority considered the Reverend’s information and affirmed the delegate’s decision, though it rejected the delegate’s conclusion that the plaintiff had attended the church solely to strengthen his refugee claim, and instead found that he attended church because he enjoyed social contact, not because of any real commitment to Christianity (at [63]). In coming to that conclusion, the Authority did not interview the plaintiff or his ‘supporters’ Continue reading

Burns v Corbett; Burns v Gaynor; A-G (NSW) v Burns; A-G (NSW) v Burns [No 2]; NSW v Burns

The High Court has dismissed five appeals stemming from to a decision of the NSW Court of Appeal on anti-discrimination complaints made across State borders. Burns, a resident of NSW and an anti-discrimination campaigner, made complaints to the Anti-Discrimination Board of the NSW Civil and Administrative Tribunal about statements made by Corbett and Gaynor, who were, respectively, residents of Victoria and Queensland. At issue there was whether ss 28(2)(a) and (c), 29(1) and 32 of the Civil and Administrative Tribunal Act (NSW) (the NCAT Act), which lay out the general and appellate jurisdiction of NCAT, gave NCAT jurisdiction to hear cases between residents of different states (known as ‘diversity matters’). Hearing the various appeals stemming from these matters together, the NSWCA held that the NCAT had no diversity jurisdiction, and that only State courts, and not Tribunals, could hear such complaints under the High Court’s diversity jurisdiction.

The High Court unanimously dismissed the appeals. Four judges (Kiefel CJ, Bell and Keane JJ and Gageler J) held that the Constitution contains an implied limitation that prevents State parliaments from conferring diversity jurisdiction on State tribunals.

The Joint Judges (Kiefel CJ, Bell and Keane JJ)

Kiefel CJ, Bell and Keane JJ began by laying out the appeal as raising two issues: whether the Commonwealth Constitution precludes State parliaments from conferring jurisdiction in diversity matters on a tribunal that is not one of the ‘courts of the States’ referred to in s 77 (the ‘implication’ issue); and, if it does not, whether a State law purporting to do so is inoperative by virtue of s 109 of the Constitution, as inconsistent with a federal law covering the same issue, here, s 39 of the Judiciary Act 1903 (Cth) (the ‘inconsistency’ issue). The joint judges held held that the implication issue should be resolved affirmatively, and thus it was unnecessary to resolve the inconsistency issue (at [5], and see [4] on the distinctness of the issues). For the joint judges, the text, Continue reading

WET044 v Republic of Nauru

The High Court has dismissed an appeal from a decision of the Supreme Court of Nauru on the denial of procedural fairness and the consideration of country information in a refugee status determination. The appellant, an Iranian of Faili Kurdish ethnicity, arrived on Christmas Island in 2013 and was transferred to Nauru, where he applied for refugee status under Nauru’s Refugees Convention Act 2012 (Nr). The Secretary of the Department of Justice and Border Control refused that application: that decision was affirmed by the Refugee Status Review Tribunal. Before the High Court, the appellant contended that the Tribunal erred in failing to deal with the country information he provided, specifically, that if returned to Iran as a failed asylum seeker, he risked being imputed with political opinions for which he would be persecuted. The appellant also sough to amend his notice of appeal to include a second ground of denial of procedural unfairness in not putting to him the nature of the country information it did rely upon in considering whether he might suffer persecution on the grounds of ethnicity (at [7]: neither ground was raised before the NRSC).

The High Court rejected both grounds as being without merit and dismissed the appeal. Regarding the first ground, the Court noted that the Tribunal had received and considered the appellant’s information (at [10]), that it did not seem to have ignored it, but that, in any case, much of that information did not require the Tribunal’s comment: Continue reading

Clone Pty Ltd v Players Pty Ltd (in liq, recs and mgrs apptd)

The High Court unanimously allowed an appeal from a decision of the Full Court of the South Australian Supreme Court regarding the power of a court to set aside one of its own perfected judgments on the basis of misconduct falling short of fraud. It was held that for the equitable power to set aside a judgment required actual fraud by the party who succeeded at trial, and such fraud had not been adequately proven or pleaded in this case. However, it was not necessary for the party seeking to set aside the judgment to exercise reasonable diligence to discover the fraud. Continue reading

Alley v Gillespie

The High Court has answered questions in a stated case brought by a common informer challenge to the capacity of a member of the House of Representatives elected at the July 2016 federal election. Section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) provides that any person who has sat in Parliament ‘while he or she was a person declared by the Constitution to be incapable of so sitting’ is liable to pay ‘any person who sues for it in the High Court’ a sum of money. The defendant was declared elected as a member of the House of Representatives on 20 July 2016. On 7 July 2017, the plaintiff commenced proceedings under the Common Informers Act, contending that the defendant was incapable of sitting as an MP because he holds shares in a company that leased premises to Australia Post, contrary to s 44(v) of the Constitution. After a query about whether the High Court has jurisdiction to decide the anterior question of the defendant’s eligibility to sit as an MP, Bell J formulated the questions for the Full Court as follows:

(1) Can and should the High Court decide [in this proceeding] whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the [Common Informers Act]?

(2) If the answer to question (1) is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff in his attempt to demonstrate that the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers Act?

The Court unanimously answered Question 1 ‘no’, and consequently it was not necessary to answer Question 2.

The joint judges (Kiefel CJ, Bell, Keane and Edelman JJ) held that whether the defendant is incapable of sitting as an MP is a question to be determined by the House of Representatives, unless it resolves to refer the matter to the Court of Disputed Returns. This answer to Question 1 is determined by ss 46 and 47, and their relation to s 44, of the Constitution. Section 46 Continue reading

Re Kakoschke-Moore

The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the Senate over the eligibility of two South Australian senate nominees. Skye Kakoschke-Moore and Timothy Storer who were third and fourth in the Nick Xenophon Team order of senate candidates for the 2016 federal election. Following that election, on 4 August, Kakoschke-Moore was returned as a senator for South Australia. On 3 November 2017, NXT resolved to expel Storer from the party, and by 6 November he purported to resign from the party. On 22 November, Kakoschke-Moore resigned as a senator after receiving confirmation from the United Kingdom Home Office that she was a British citizen. The Senate then resolved on 27 November to refer to the High Court the question of whether, by reason of s 44(i) of the Constitution, which provides that any person who is a subject or citizen of a foreign power shall be incapable of being chosen as a senator, there was a vacancy in the Senate for the place for which Kakoschke-Moore was returned. On 30 November, Kakoschke-Moore submitted the form to renounce her UK citizenship, and received confirmation on 6 December from the Home Office that her renunciation was effective on that date.

On 24 January 2018, Nettle J declared that Kakoschke-Moore was incapable of being chosen or sitting by reason of s 44(i). Nettle J also reserved three further questions for the Full Court’s determination, which the Court answered on 13 February (see order below), delivering its reasons on 21 March.

The Court unanimously held that the vacancy left by Kakoshcke-Moore should be filled by a special count of the votes cast on 2 July 2016; that Kakoschke-Moore’s renunciation of her British citizenship in December 2017 does not render her capable of now being chosen to fill the vacancy; and that Storer should not be excluded from the special count.

On questions one and two, the Court rejected Kakoschke-Moore’s contentions that the Court should declare her elected because she has now renounced her Continue reading

Craig v The Queen

The High Court has unanimously dismissed appeal against a decision of the Queensland Court of Appeal on a defendant’s decision not to testify in the context of a domestic violence murder conviction. Although he told his solicitors that the killing was an accident that occurred after the victim attacked him, his defence at trial instead relied on his police interview that described the killing as a deliberate attack that occurred in the heat of the moment. The defendant’s reasons for not testifying were evidenced in the following signed instructions he gave to his solicitor before the trial:

I am not relying on self defence or provocation as defence for tactical or legal reasons. Firstly, I did not raise these defences in my interview to police and secondly it would require me to give further evidence if such defences were to be raised. I have already given my preliminary view that I do not wish to give evidence as I do not want to be cross-examined about my previous criminal history.

On appeal, the defendant’s trial counsel explained that the advice was based on a number of contingencies that might arise during the defendant’s testimony – imputations against the police or the victim, assertions of his good character or the substance of his defence that the killing was an accident – which might allow the introduction of his earlier conviction for a home invasion where a person was fatally stabbed, but admitted that he had not told the defendant that the trial judge would have to give leave for that to occur. The QCA held that the trial counsel’s advice was incorrect, but dismissed the defendant’s appeal because the decision not to testify was a sound, forensic decision where the wrong advice was merely ‘an additional, but inaccurately expressed, reason’.

A unanimous High Court consisting of all seven judges rejected the defendant’s argument that he could not be held to a forensic decision that was informed by incorrect legal advice. Continue reading

Re Lambie

The High Court, sitting as the Court of Dispute Returns, has answered a question referred to it by the Senate on eligibility of being chosen under s 44 of the Constitution. The reference originally concerned then-Senator Jacqui Lambie’s eligibility under s 44(i), but following her resignation it focused on the eligibility of Steven Martin, another Senate candidate who, following a special count, was chosen to fill Lambie’s vacancy. The matter then focused on s 44(iv), which provides that ‘[a]ny person who … holds any office of profit under the Crown … shall be incapable of being chosen or of sitting as a senator’. Martin holds the office of mayor and councillor of Devonport City Council, a local government corporation established under the Local Government Act 1993 (Tas).

On 6 February 2018, the Court held that Martin was not incapable of being chosen or of sitting as a senator by reason of s 44(iv), and delivered its reasons for that answer on 14 March. The joint judges (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) first emphasised the importance of s 45(i), which provides that if a senator becomes subject to any of the disabilities in s 44, that senator’s place ‘shall thereupon become vacant’ (at [6]). The temporal relationship between ss 44 and 45 is the process of ‘being chosen’ in s 44 remains incomplete until a person not subject to a s 44 disability is validly returned as elected, whereas s 45 operates to vacate the place of a person validly returned who later becomes subject to a s 44 disability (see [7]). In this matter, there was no dispute that ‘the Crown’ refers to the executive government of a State, and no dispute that the offices of mayor and councillor in Tasmania are each an ‘office of profit’ (at [9]). The sole issue was whether those offices are ‘under’ the executive government of Tasmania (at [10]–[12]).

The joint judges then turned to the pre-Federation history of s 44(iv), noting that nothing in that history suggests it had a technical meaning at Federation, and that nothing in the drafting history suggests there was any significance for that choice of words (at [17]). Consequently, the joint judges saw pre-Federation history as ‘more enlightening as to the purpose of the disqualification’, Continue reading

Pike v Tighe

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on whether a local council can enforce planning conditions that were agreed by a previous land owner when the land was subdivided. Section 245 of the Sustainable Planning Act 2009 (Qld) provides that

(1) A development approval (a) attaches to the land the subject of the application to which the approval relates; and (b) binds the owner, the owner’s successors in title and any occupier of the land.

(2) To remove any doubt, it is declared that subsection (1) applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured

In 2009, the Townsville City Council approved a subdivision on the condition that the then-owner register an easement to allow pedestrian, vehicle and utilities access to the back-lot, which the owner never did. That decision was made under the Integrated Planning Act 1997 (Qld), s 3.5.28 of which is substantially reproduced in s 245. When the subdivision was registered and both lots later sold, the Queensland Planning and Environment Court granted the new back-lot owner an ‘enforcement order’ to prevent the new front-lot owner from committing a ‘development offence’ by not registering the utilities easement. The QCA unanimously quashed the order on the basis that the Council’s subdivision conditions did not attach to the land following the subdivision.

The High Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) unanimously allowed the appeal, holding that s 245 obliges a successor to title after a reconfiguartion to comply with the condition of the approval of that recondition even if it was not satisfied by the original owner, and that QPEC may make an enforcement order requiring the successor to fulfil that condition.

After reviewing the facts (at [3]ff), the statutory provisions (at [8]ff), and the decisions of the lower courts (at [15]ff), and the submissions of the parties (at [28]ff), the Court ruled that the appellants’ second submission — that even if the respondents were not a party to the development approval, that does not preclude an enforcement order from being made against them — Continue reading

Kalbasi v Western Australia

The High Court dismissed, by majority, an appeal against a decision of the Western Australian Court of Appeal on a conviction and sentencing for drug importation. The appellant was convicted for attempted possession of 5kg of methylamphetamine with intent to sell or supply them to another, after police intercepted the drug shipment in two tool cases, substituted salt for the drugs, and then surveilled a Perth man take the cases home and unpack them in front of the appellant. The trial judge directed:

I’m now going to deal with the fourth element upon the jury aid, that the accused intended to sell or supply the prohibited drug or any part of it to another. Members of the jury, you can give that element a tick. It is not an issue for you in this trial.

The WASCA dismissed the appeal, holding that, although this direction was incorrect (as a statutory presumption of intent to sell or supply did not apply to the offence of attempted possession), the so-called ‘proviso’ to Western Australia’s criminal appeal statute (that the Court ‘may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred’) applied.

The High Court formed a bench of seven judges to address the meaning of its 2005 precedent on the ‘proviso’, Weiss v The Queen, which held:

No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

The appellant argued that the WASCA’s approach that regards the ‘negative proposition’ as determining the application of the proviso unless there was a ‘fundamental’ error of ‘process’ either ‘misapplies the principles explained in Weiss or, if it does not, Weiss should be qualified or overruled.’ The Court unanimously declined to overrule Weiss, but divided on whether the ruling was correctly applied in this case. Continue reading

Irwin v The Queen

The High Court unanimously dismissed an appeal against a decision of the Queensland Court of Appeal on the defence of accident to a grievous bodily harm conviction. The appellant and his former business partner fell out over business dealings and an adultery claim, leading to a fight in a Gold Coast shopping mall. The jury convicted the appellant of grievous bodily harm for breaking the victim’s hip after shoving him over, but acquitted him of another charge that he kicked the victim while he was on the ground. The defence of accident in s23 of Queensland’s Crimninal Code states (emphasis added):

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

(b) an event that— (i) the person does not intend or foresee as a possible consequence; and (ii) an ordinary person would not reasonably foresee as a possible consequence.
Example: Parliament, in amending subsection (1) (b) by the Criminal Code and Other Legislation Amendment Act 2011 , did not intend to change the circumstances in which a person is criminally responsible.
(1A) However, under subsection (1) (b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.

The QCA rejected the appellant’s claim that the hip fracture fell within s23(1)(b) in the following terms (emphasis added):

A jury may well have considered that an ordinary person in the position of the appellant could not have reasonably foreseen the complainant would in those circumstances suffer a fractured hip. That, it seems, was the trial judge’s view. But that is not the test for this Court. It was equally open to the jury on the evidence to reach the contrary conclusion, that an ordinary person in the position of the appellant could have foreseen that the complainant might suffer a serious injury such as a fractured hip from such a forceful push. The resolution of the issue was a matter for the jury. They had the advantage of seeing the height and build of the 55 year old complainant and appellant. Assuming they were of average build and height, the appellant’s push of the complainant, necessarily on the medical evidence forceful, on a slight downward sloped tiled ramp, could foreseeably result in the complainant falling badly and seriously injuring himself, even breaking his hip. Such a result was not theoretical or remote.

After reviewing the whole of the evidence, I am satisfied that the jury verdict of guilty of grievous bodily harm was not unreasonable and against the weight of the evidence. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. It follows that I would dismiss the appeal against conviction.

The High Court (Kiefel CJ, Bell, Gageler, Nettle & Gordon JJ) held (at [44]) that s23(1)(b)’s reference to ‘would’ ‘involves a degree of probability, albeit that it need not be more likely than not, whereas’ the QCA’s referrence to ‘could’ ‘is a matter more akin to mere possibility’ and hence was ‘prone to lead to error in the application of s 23(1)(b)(ii)’ and ‘the practice should not be repeated’.However, the Court noted (at [45]) that the trial judge directed the jury in the correct terms and ‘there is no reason to doubt that the jury adhered to those directions, or cause to doubt the reasonableness of the verdict on that basis.’

The Court then turned to the particular reasoning of the QCA, Continue reading

Maxcon Constructions Pty Ltd v Vadasz; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd

Owen Hayford, ‘Back to the past for dodgy construction payment adjudications: Probuild and Maxcon‘ (23 February 2018)

Owen Hayford and Hannah Stewart-Weeks, ‘Construction contractors beware – common clauses may now be unenforceable after Maxcon Constructions v Vadasz (1 March 2018)

The High Court has dismissed two appeals against decisions of the South Australian Supreme Court (Maxcon) and the New South Wales Court of Appeal (Probuild) on when a court can review an adjudication decision about security of payments legislation. In both of these matters, the primary courts held that an adjudicator had made an error of law in adjudicating disputes over progress payments for construction projects. The NSWCA held that the security of payment legislation removed any judicial power to quash an arbitral decision for that error of law, and the SASCFC held that it was bound to follow the NSWCA ruling. These rulings were upheld by the High Court.

Continue reading

Falzon v Minister for Immigration and Border Protection

The High Court has dismissed an application challenging the validity of s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) provides that the Minister of Immigration and Border Protection must cancel a visa held by a person if the Minister is satisfied that person does not pass the character test due to a substantial criminal record, which includes being sentenced to a term of imprisonment of at least 12 months. The plaintiff is a Maltese national who has lived in Australia since the age of three, but never became an Australian citizen, and instead held an Absorbed Person Visa and a Class BF Transitional (Permanent) Visa as a ‘lawful non-citizen’. In 2008, he was convicted of drug trafficking and sentenced to 11 years in prison. In March 2016 the Minister cancelled his Absorbed Person Visa, which meant that the Minister was taken to have cancelled the other visa. The plaintiff was taken into immigration detention, and sought revocation of the decision to cancel his visa. The Assistant Minister refused, and the plaintiff commenced proceedings in the High Court’s original jurisdiction. The plaintiff contended that s 501(3A) is invalid for conferring federal judicial power on the Minister, contrary to Ch III of the Constitution, because it empowers the Minister to punish him for offences he has committed.

The High Court unanimously dismissed the application. The joint judges (Kiefel CJ, Bell, Keane and Edelman JJ) held that s 501(3A) does not authorise or require detention, but merely requires that his visa be cancelled because of his criminal convictions: it changed his legal status from lawful non-citizen to unlawful non-citizen, and this change meant he was liable to removal from Australia, and detention to facilitate that removal.

After summarising the facts (at [1]ff) and the statutory scheme (at [9]ff), the joint judges turned to each of the plaintiff’s four propositions. The first, that the power to punish an offence against a Commonwealth law is exclusive to ch III courts was uncontroversial (at [14]–[17]). Continue reading

Commissioner of the Australian Federal Police v Hart; Commonwealth of Australia v Yak 3 Investments Pty Ltd; Commonwealth of Australia v Flying Fighters Pty Ltd

The High Court has allowed an appeal against a decision of the Court of Appeal of Queensland on the meaning and application of federal proceeds of crime legislation. The proceeds of crime proceedings follow a successful criminal prosecution of Steven Irvine Hart, the respondent in the one of the three High Court appeals, for his involvement in tax minimisation schemes. During that prosecution, the Commonwealth Director of Public Prosecutions obtained a restraining order on property under Hart’s ‘effective control’. When Hart was convicted in 2006, the restrained property became subject to automatic forfeiture under s 92 of the Proceeds of Crimes Act 2002 (Cth). The present proceedings involve two subsequent actions: first, an action by companies against the Commonwealth under s 102 of the Act claiming an interest in some of the forfeited properties (respondents in two of the three High Court Appeals) for their interests (or an equivalent value) to be transferred to them; second, an action by the Commonwealth DPP under s 141 of the Act seeking a declaration that any property the companies recover in this way be made available to pay any pecuniary penalty Hart was liable to pay. The companies generally succeeded in both actions at the trial in Queensland’s District Court in 2013 and following the Commonwealth’s appeal to Queensland’s Court of Appeal, with the Commonwealth ordered to pay the companies the value of their interests and denied the ability to use that money to pay a nearly $15M pecuniary penalty that Hart was ordered to pay to the Commonwealth in 2010.

The High Court (Kiefel CJ, Bell, Gageler and Edelman JJ, and Gordon J) unanimously allowed the Commonwealth’s appeal against the orders to pay the companies, but dismissed the Commonwealth’s appeal against the refusal to allow it to use the interests the company’s retained to pay off Hart’s pecuniary penalty. Justice Gordon’s judgment sets out the facts, background and orders. The plurality agreed with Gordon J (at [2]) on the facts, the orders and the dismissal of the Commonwealth’s appeal relating to offsetting the pecuniary penalty, but provided alternative reasons for allowing the Commonwealth’s appeal relating to order to restore the companies’ interests. Continue reading

DWN042 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on procedural fairness and the conduct of appeals. The appellant, a Pakistani asylum seeker, was denied refugee status and complementary protection by the Nauruan Secretary of the Department of Justice and Border Control. On appealing that determination to the Nauruan Refugee Status Review Tribunal, the Tribunal affirmed the Secretary’s decision and concluded that the appellant’s submitted materials did not support his narrative that he had been targeted by the Taliban and would be targeted if returned to Pakistan. The appellant then appealed to the Supreme Court of Nauru, and gained legal representation only the day before his hearing.

On the morning of the hearing, he filed an amended notice of appeal that raised four grounds of appeal, including that the Tribunal acted contrary to the principles of natural justice in hearing his appeal while he was detained unlawfully in breach of the Nauruan Constitution (see details at [4]). Judge Khan struck out the two grounds relating to natural justice on the basis that his Honour lacked jurisdiction to consider them ‘apparently because (i) the two grounds involved the interpretation and effect of the Constitution of Nauru so that under s 45(a) of the Appeals Act 1972 (Nr) there could be no appeal to the High Court of Australia from his decision on these grounds, and (ii) the Refugees Act was Continue reading

Regional Express Holdings Ltd v Australian Federation of Air Pilots

The High Court has dismissed an appeal against a decision of the Full Federal Court on the standing of employee organisations to allege breaches of the Fair Work Act 2009 (Cth). Section 540(6)(b)(ii) provides that an industrial association can apply for an order relating to a breach if that association is ‘entitled to represent the industrial interests’ of the person affected by the breach. The appellant airline instructed its cadet pilots that if they insisted on their right to accommodation contained in the enterprise agreement they would not be given a position of command. The respondent association alleged that this breached various provisions of the Fair Work Act, and the appellant disputed the association’s status as representing the cadet pilots because none of those pilots were members. The FCAFC held that although the pilots were not in fact members, they were eligible for membership, and thus the respondent was ‘entitled to represent’ their industrial interests.

The High Court (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) unanimously dismissed the appeal, holding that where a person is eligible for membership of an industrial organisation, that organisation’s entitlement ‘to represent the industrial interests of the person’ can be sufficiently shown by its registration under the Fair Work (Registered Organisations) Act 2009 (Cth). After reviewing the legislative provisions, facts and proceedings below (at [2]ff), the Court noted that because the Continue reading

Esso Australia Pty Ltd v Australian Workers’ Union; Australian Workers’ Union v Esso Australia Pty Ltd

The High Court has allowed an appeal and dismissed a second appeal against a decision of the Full Federal Court on protected industrial action and enterprise agreements. During negotiations over a new enterprise bargaining agreement between Esso and the AWU for employees of offshore gas platforms, onshore processing plants, and a marine terminal, AWU organised various forms of industrial action in support of its claims (at [13]ff). AWU claimed that each form of industrial action was protected under s 408(a) of the Fair Work Act (Cth), and Esso claimed some forms of purportedly protected action — relating to bans on equipment performance testing, air freeing and leak testing (which the AWU claimed was ‘de-isolation of equipment’) — were not protected. The Fair Work Commission granted Esso’s application for an order requiring the AWU to stop the organisation of bans on equipment testing, air freeing and leak testing, and in contravention of that order the AWU continued to organise that action. Section 413(5) provides that employees and bargaining representatives must not contravene any orders that apply to them and ‘relate to, or relate to industrial action relating to’ an agreement or a matter that arose during bargaining. Sections 343 and 348 prohibits the coercing others to exercise or not exercise workplace rights or engage in industrial action. Esso claimed the AWU had contravened s 413(5) in ignoring the order, and contravened ss 343 and 348 by organising action to coerce Esso to agree to the AWU’s terms. A majority of the FCAFC upheld the primary judge’s decision to not grant Esso’s s 413(5) declaration on the basis that s 413(5) must relate to an order that is current and operative at the time of protected industrial action. The majority also upheld the primary judge’s conclusion that the AWU had contravened ss 343 and 348, dismissing the AWU’s contention that it believed the action to be lawful and therefore could not be coercive.

A majority of High Court allowed Esso’s appeal (Kiefel CJ, Keane, Nettle and Edelman JJ, Gageler J dissenting) and the Court unanimously dismissed the AWU’s appeal. Dealing Esso’s appeal first, the majority first reviewed the lower court decisions (at [18]ff) and the parties’ contentions before the Court (at [23]ff), before turning to the construction of s 413. Because s 413(5) is ‘poorly drafted’, Continue reading

Aldi Foods Pty Ltd v Shop, Distributive and Allied Employees Association

The High Court has partly allowed an appeal against a decision of the Full Federal Court on the regional coverage of enterprise agreements and the operation of the ‘better off overall test’. ALDI offered seventeen employees currently working in ALDI stores around Australia positions in a new ‘region’ of operations in South Australia. A majority of these employees voted to approve an enterprise agreement with ALDI. The appellant unions, who were not involved in the making of this agreement, challenged it before the Fair Work Commission on the basis that it should have been a ‘greenfields agreement’ under pt 2-4 of the Fair Work Act 2009 (Cth), and that it did not pass the ‘better off overall test’ (‘BOOT’). The Fair Work Commission disagreed, ruling that the agreement was valid, and this ruling was upheld by the Full Bench. A majority of the FCAFC allowed an appeal against the Full Bench’s decision, holding that the agreement was not valid because it did not meet the requirement in s 186 that it be ‘genuinely agreed to’ because at the time of the vote the region had no employees at the time. The FCAFC also held that the FWCFB erred in applying the BOOT test.

The Court (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ, Gageler J agreeing) partly allowed the appeal, holding that the FCAFC erred in its holding on the coverage issue, but was correct in its view of the BOOT issue (at [4]). (Consequently, it was not necessary to determine the issues relating to jurisdictional error or the applicability of certiorari: at [4], and see [1] and [2].) Continue reading

Re Canavan; Re Joyce; Re Ludlam; Re Nash; Re Roberts; Re Waters; Re Xenophon

The High Court, sitting as the Court of Disputed Returns, has decided a special case referred to it by the Senate and the House of Representatives on the question of eligibility of six Senators and one MP under s 44(i) of the Constitution: Senators Matthew Canavan, Malcolm Roberts, Fiona Nash, and Nick Xenophon, the Hon Barnaby Joyce MP, and Scott Ludlam and Larissa Waters (former Senators who resigned on discovering that they may have been ineligible). In each case, material had emerged that these representatives held dual citizenship at the time that they were nominated for election. The Court permitted former MP Tony Windsor to appear as a party to the Joyce matter, and also permitted an amicus curiae to appear as contradictor in the matters of Canavan, Nash and Xenophon (on both, see at [7]).

Section 44(i) of the Australian Constitution provides that any person who

is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

On 22 September 2017, Keane J delivered a judgment on the evidence relating to Senator Malcolm Roberts’ s 44(i) matter, evaluating what Senator Roberts knew about his citizenship status at the time of his nomination and the steps he took to verify and renounce it before that nomination, and holding that he was a UK citizen prior to his recent renunciation (see below).

On 27 October 2017, the Court unanimously held that Senators Canavan and Xenophon were eligible at the time of their nomination, and that Ludlam, Waters, and Joyce, and Senators Roberts and Nash were ineligible at the time of their nomination.

Construction of s 44(i) (at [13]–[73])

After restating the text of s 44(i), emphasising that the phrase ‘shall be incapable of being chosen’ relates to the electoral process, of which nomination is a central part, and noting that s 44(i) focuses on the time between that nomination and the completion of the electoral process (at [1]–[3]), the Court recounted the chronology of the referrals and proceedings (see [4]ff). Turning to the different approaches to construing s 44(i), the Court noted (at [13]) that of the various competing submissions, only those made by the amicus contradictors and on behalf of Windsor gave s 44(i) Continue reading

HFM045 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on procedural fairness requirements of refugee status reviews. The appellant, a Nepalese citizen of the Hindu Chhetri caste, fled Nepal, arrived at Christmas Island and was then transferred to Nauru under the regional processing arrangement. He claimed refugee status in Nauru, claiming a fear of persecution from Maoist rebels on the basis of his political opinions and from Limbu tribe Mongols on the basis of his home district and caste membership. The Secretary of the Department of Justice and Border Control’s made a determination that he was not a refugee and could be returned to Nepal, which was upheld by the Nauruan Refugee Status Review Tribunal and the Supreme Court of Nauru. Before the High Court, the appellant contended that the Supreme Court erred in failing to hold, first, that the Tribunal denied him procedural fairness because it did not put him on notice of information that was relevant to its ruling — namely, the changed political circumstances in Nauru, the proportion of Chhetri caste members in the Nepalese army, and persons targeted by Limbuwans — and, secondly, that the Tribunal applied the incorrect test in evaluating the determination (at [5]).

The Court (Bell, Keane and Nettle JJ) rejected the second ground, but allowed the first in relation to the army composition point: the Tribunal was under a common law obligation Continue reading

Thorne v Kennedy

Katy Barnett, ‘Thorn in the Side of Prenuptial Agreements? Thorne v Kennedy‘ (4 December 2017)

Joanna Bloore, ‘Pressure, Influence, and Exploitation in Thorne v Kennedy‘ (24 July 2017)

The High Court has allowed an appeal against a decision of the Full Family Court on the enforceability of binding financial agreements before and after marriage. Pt VIIIA of the Family Law Act 1975 (Cth) allows parties to a marriage to enter into binding financial agreements before or after a marriage to clarify their respective positions on asset redistribution in that the relationship breaks down. The parties met on an online website for potential brides, and the appellant moved to Australia to marry the respondent. The respondent was a wealthy Australian property developer with significant assets; the appellant had no significant assets, basic English skills, no family in Australia and, at the time of the marriage, was in the country on a tourist visa. Shortly before the wedding, the repsondent insisted that the appellant sign a binding financial agreement, which she did, over legal advice that it was ‘entirely inappropriate’ and that she should not sign it (see at [7]–[15]). The parties also entered into a second, post-marriage binding financial agreement, which again the appellant was advised not to sign. The Full Family Court overturned the trial judge’s finding that the agreements were the result of duress and undue influence, holding that the trial judge failed to provide adequate reasons for making those findings, and concluding that the agreement bound both parties.

The High Court unanimously allowed the appeal. The plurality (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) held that the Full Family Court erred in disturbing the findings of the trial judge; the agreements were voidable due to both undue influence and unconscionable conduct (at [2]). After reviewing the facts (at [7]ff), and statutory context (at [16]), the plurality reiterated that this appeal focused on whether the agreements should be set aside because the appellant was subject to the vitiating factors applied according to the principles of the common law and equity: duress, undue influence or Continue reading

Van Beelen v The Queen

The High Court has dismissed an appeal against a decision of the Supreme Court of South Australia on the requirements for reopening a conviction on the basis of fresh evidence. Van Beelen was convicted of murdering a schoolgirl on a beach in 1971 on the basis of evidence that he was present at the beach at the time of her death, that he was the only person whose actions were unaccounted for at that time, and the fibres the jumper he was wearing matched those found on the deceased’s clothing. In 2013, the South Australian parliament inserted Section 353A(1) into the Criminal Law Consolidation Act 1935 (SA), which provides that the Court may allow a convicted person to bring a second appeal where it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal. The appeal itself may only be allowed if the Court is satisfied that there was a substantial miscarriage of justice. A majority of the SASCFC rejected the appellant’s s 353A(1) application, holding that while new expert evidence based on more recent work on stomach contents analysis showed that the earlier evidence was wrong and satisfied the ‘freshness’ and reliableness requirements, it was not substantive, reliable, highly probative or compelling: it was consistent with the initial defence expert witness’s testimony, and it did not disprove the other prosecution evidence about the time of death.

The High Court (Bell, Gageler, Keane, Nettle and Edelman JJ) unanimously held that the SASCFC erred in refusing permission to appeal because the new evidence does meet the criteria of being fresh and compelling and it is in the interests of justice that it be considered on appeal. However, the Court also held that that consideration revealed no substantial miscarriage of justice, and consequently the appeal was dismissed.

After reviewing the facts of the case (at [3]ff), the new evidence (at [8]ff), the provisions of s 353A (at [16]ff) and the SASCFC’s reasoning (at [17]ff), and the parties’ submissions (at [24]ff), the Court turned to the scope of s 353A and its application here. Continue reading

BRF038 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on when discrimination amounts to persecution and procedural fairness guarantees under Nauruan refugee law. The appellant, a Sunni Muslim, fled Somalia in 2006, then stayed in Yemen, and finally arrived by boat at Christmas Island in September 2013. Australian authorities transferred him to the Republic of Nauru, where he sought refugee status. During his processing, he claimed that he fled Somalia due to war, trouble, hunger and starvation, and later fled Yemen due to racism and a lack of security (see details at [10]–[15]). The Nauruan Secretary refused his application for refugee status on the basis of scepticism about parts of his account (see [16]), and the Nauruan Refugee Status Review Tribunal and Nauruan Supreme Court both upheld that determination. On appeal to the High Court, the appellant contended that the Tribunal failed to accord him procedural fairness in reviewing the Secretary’s determination.

The Court (Keane, Nettle and Edelman JJ) allowed the appeal, ordering that the Tribunal’s decision be quashed and the matter remitted Continue reading

Brown v Tasmania

The High Court has determined a special case on Tasmanian forestry protest laws and the implied freedom of political communication, holding that the central anti-protest provisions of the challenged legislation were invalid because they impermissibly burdened the freedom of political communication implied in the Commonwealth Constitution.

The Workplaces (Protection from Protesters) Act 2014 (Tas) contains a range of provisions that prohibit persons from engaging in protest activities. Section 4 defines protest activities as activities taking place on a business premises or an ‘access area’ in relation to a business, that is ‘in furtherance of’ or ‘for the purposes of promoting awareness of or support for’ an ‘opinion, or belief’ about a ‘political, environmental, social, cultural or economic issue’. Business premises also include forestry land and land on which forestry operations are being carried out, and ‘access areas’ include the areas around and outside those premises. Section 6 provides that a protester must not enter or do an act on a business premises that prevents, hinders or obstructs the carrying on of a business activity. Section 6(4) makes it an offence to disobey a police officer’s order, made under s 11, to leave the premises, directed at a person that the officer reasonably believes has committed, is committing or is about to commit a contravention of s 6. Section 8(1) makes it an offence to re-enter an area near where that person received a s 11 direction to leave, within four days of receiving that direction. That area is not limited to the area in which the direction was issued: it extends to any area outside ‘forestry land’. Section 11 also contains police powers to direct groups to leave areas, and s 13 contains powers for police to make warrantless arrests for contraventions of the Act for specified purposes.

The plaintiffs were present in the Lapoinya Forest while forestry operations were being carried out there, and engaged in raising public and political awareness about the logging operations and voicing protests against it. They were arrested and charged under the Act for offences against s 8(1) and s 6(4), though the charges were ultimately not proceeded with and dismissed. Before the High Court, they challenged the validity of provisions of the Act noted above (ss 6, 8, 11, 13 and pt 4 of the Act). While the stated Special Case contained a first question on the standing of the plaintiffs to seek relief, the defendants conceded that the plaintiffs had standing and the question no longer needed to be answered (see [5], and see below for the full order).

The High Court held, by majority (Kiefel CJ, Bell and Keane JJ, Gageler J, Nettle J) that the impugned provisions did impermissibly burden the implied freedom of political communication and were thus invalid. Gordon J held that only s 8 was invalid, and Edelman J held the Act was valid in its entirety.

The Joint Judgment (Kiefel CJ, Bell and Keane JJ)

After reviewing the background to the matter, the history of the Act, and the impugned provisions (see [11]–[60]), the joint judges (Kiefel CJ, Bell and Keane JJ) turned to analyse the terms, operation and effect of the Protesters Act. The impugned provisions together had a significant deterrent effect on protestors, Continue reading

Koani v The Queen

The High Court has published its reasons for allowing an appeal against a decision of the Supreme Court of Queensland on whether an unwilled criminally negligent act combined with an intention to kill or cause grievous bodily harm constitutes murder under s 302(1)(a) of the Criminal Code 1899 (Qld). Following a breakdown in their relationship and during a violent confrontation in front of witnesses, the appellant loaded and aimed a shotgun at the deceased, saying ‘I don’t give a fuck, I’ll kill you … I’ll go back to jail’, which then discharged (see [3]–[7]).

The appellant pleaded guilty to manslaughter charges but claimed he was not guilty of murder; the prosecution declined to accept that plea and, following a jury trial, he was convicted of murder and sentenced to life imprisonment. During the trial, expert evidence established that shotgun had been altered, with the effect that it was prone to discharge ‘half-cocked’, that is, pulling the trigger 10mm, then letting it go, accidentally or intentionally. The prosecution’s main case was that the appellant discharged the gun deliberately, intending to kill the deceased. The alternative case was Continue reading

DPP v Dalgliesh

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on ‘ranges’ of sentences and the evaluation of current sentencing practice. The respondent plead guilty to four charges of incest and was cumulatively sentenced  to five years and six months imprisonment. The sentence for charge one, which related to committing incest and impregnating his 13-year old stepdaughter, whose pregnancy was subsequently terminated, was three years and sixth months. The DPP appealed against both the sentence for charge one and the cumulative total imposed, contending that both were manifestly inadequate. While the VSCA noted that the sentence on charge one could be seen as lenient, and that the range was so low that it revealed an error in principle as being not proportionate to the objective seriousness of the offence or moral culpability of the offender here, the Court ultimately held that in light of what were the then current sentencing practices, it was within the range open to the sentencing judge, and that the Court of Appeal was constrained by those sentencing practices to dismiss the appeal.

The High Court unanimously allowed the appeal. The joint judges (Kiefel CJ, Bell and Keane JJ) held that the VSCA erred in treating a range of sentences established by current sentencing practice as decisive of the appeal (at [2]). After noting the sentencing Continue reading

Wilkie v Commonwealth; Australian Marriage Equality Ltd v Cormann

The High Court has decided two proceedings challenging the legal basis for the Australian Marriage Law Postal Survey, dismissing the first application and answering questions stated in the special case in the second proceeding, holding that the Minister’s determination to fund the Survey was not invalid, and was validly authorised under the most recent appropriations act.

Following the Government’s 7 August 2017 announcement of a ‘voluntary postal plebiscite’ on whether Australian law should be changed to allow same-sex couples to marry, to be run by the Australian Bureau of Statistics, the Finance Minister (and respondent in the second matter) made a determination entitled ‘Advance to the Finance Minister Determination (No 1 of 2017–2018)’ to provide the ABS with $122 million for the plebiscite. That determination was purportedly supported by s 10 of the Appropriation Act (No 1) 2017–2018, which allows the Finance Minister to make a determination to provide for expenditures not exceeding $295 million where the Finance Minister ‘is satisfied that there is an urgent need for expenditure, in the current year, that is not provided for … in Schedule 1 … because the expenditure was unforeseen until after the last on which it was practicable to provide for it [in the original Bill]’. The Finance Minister stated in the instrument and in an affidavit that because the 2017–18 budget was tabled in May 2017, and Government policy on holding the plebiscite and using the ABS to do so was not changed until August, he was satisfied that there was an urgent need for the expenditure (see further at [32]–[37]). Continue reading

Chiro v The Queen

The High Court has partly allowed an appeal against a decision of the Full Court of the Supreme Court of South Australia on special and general jury verdicts on the offence of persistent sexual exploitation of a child. Section 50(1) of the Criminal Law Consolidation Act 1935 (SA) prescribes the offence of ‘persistent sexual exploitation of a child’, defined as committing more than one act of sexual exploitation over a period of not less than three days, where an act of sexual exploitation means an act that could be subject of a sexual offence charge. The appellant was convicted under s 50 after the prosecutor gave the jury a list of six alleged abusive acts and asked the jury to convict if it was unanimous that at least two of these acts occurred over a two year period, and the trial judge sentenced him to ten years imprisonment with a non-parole period of six years. The SASCFC rejected the appellant’s contention that the trial judge erred in not taking a special verdict or asking questions of the jury after they returned the general verdict of guilt; specifically, to state which incidents they found had been proved, and in the absence of such information the trial judge should have sentenced him only for the two least serious acts alleged.

The High Court allowed the appeal against the sentence by majority, and unanimously dismissed the appeal against conviction. Continue reading

Hamra v The Queen

The High Court has dismissed an appeal against a decision of the Supreme Court of South Australia on the offence of persistent sexual exploitation of a child. The appellant was tried under s 50 of the Criminal Law Consolidation Act 1935 (SA) of ‘persistent sexual exploitation of a child’, defined as committing more than one act of sexual exploitation over a period of not less than three days, where an act of sexual exploitation means an act that could be subject of a sexual offence charge. After a trial by judge alone, the trial judge held that the general nature of the complainant’s evidence meant that it was not possible to identify two or more specific proven sexual offences, and thus there was no case to answer. The SASCFC allowed a Crown appeal against that decision and remitted the matter for retrial. Before the High Court, the appellant contended that the SASCFC erred in concluding there was a case to answer, and erred in not addressing the appellant’s argument that the Crown should not have been granted permission to appeal owing to the Court’s failure to consider the appellant’s arguments on double jeopardy concerns.

The High Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) unanimously dismissed both arguments and the appeal. The Court noted that the appellant’s contention on the operation of s 50 was that the provision did not alter or ameliorate the requirement that the prosecution must prove each ‘distinct occasion’ Continue reading

Dookheea v The Queen

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the adequacy of jury directions in a murder trial. The respondent and his partner attacked a former employer, intending to ‘teach him a lesson’, which ended in the death of the employer caused either by the respondent choking him or sitting on his back. After rejecting the respondent’s contentions on the adequacy of jury directions on intention and cause of death, the VSCA accepted the argument that the trial judge’s statement to the jury that the prosecution ‘has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt’ was in error, given the High Court’s prohibition on directions on the meaning of reasonable doubt. Before the High Court, the Crown contended that while the trial judge had strayed from the traditional formulation by contrasting reasonable doubt with ‘any doubt’, it was not an error to do so, and, in any case, had not produced any substantial miscarriage of justice.

The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ) allowed the appeal, holding that while it is generally ‘undesirable’ for a trial judge to contrast reasonable doubt with ‘proof beyond any doubt’, it was not an error to do so in the circumstances of this case (at [1]). After noting historical changes in understandings of the expression ‘reasonable doubt’ among the general population (at [23]ff), the Court stated that today there may be reasonably differing views on whether it is well-understood: while popular media makes frequent use of it, trial judges appear to be frequently asked to define ‘reasonable doubt’ or Continue reading

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection

The High Court has dismissed two appeals against a decision of the Full Federal Court on the refugee protection criteria applicable to persons who would face detention for unlawfully leaving their country of origin if returned. SZTAL and SZTGM, both Sri Lankans, arrived in Australia and applied for protection visas under the ‘complementary protection regime’. Under s 36(2)(aa), one criteria of granting that application is that the Minister has substantial grounds for believing that, if the applicant were returned, there is a real risk that they will suffer significant harm, including ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’. Under the definition in s 5, these must, respectively, be ‘intentionally inflicted’ and ‘intended to cause’ extreme humiliation. The Minister rejected the applications.

The Refugee Review Tribunal found that, if returned to Sri Lanka, the appellants would be arrested, charged and detained for leaving the country illegally, and would be held in prisons that may not meet international standards. The RRT concluded that the requirement of ‘intention’ was not satisfied: the poor conditions were due to a lack of resources, rather than an intention to inflect cruel, Continue reading

The Queen v Holliday

The High Court has dismissed an appeal against a decision of the ACT Court of Appeal on incitement to procure a third person to commit a criminal offence. The respondent was in custody awaiting prosecution when he asked a fellow prisoner to arrange for a third person, outside the prison, to kidnap two potential witnesses, convince them to adopt an exculpatory statement the respondent had written, and then kill them. The other prisoner did not go through with the plan and instead reported the respondent, who was then convicted on charges of attempting to pervert the course of justice (contrary to ss 44 and 713(1) of the Criminal Code 2002 (ACT)) and incitement to kidnap (contrary to s 47 of the Code and s 38 of the Crimes Act). On appeal, the ACTCA unanimously upheld the respondent’s conviction on the perversion of justice count, but set aside the convictions on the incitement to kidnap charges; Murrell CJ held that a person cannot be charged with inciting someone to procure a third person to commit a crime, and Wigney J held that such a charge was possible, but requires that the crime is actually committed. At issue before the High Court was whether incitement to procure a substantive offence was an offence under the Code; and whether Continue reading

Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection

The High Court has determined a special case on the validity of ss 501(3) and 503A(2) of the Migration Act 1958 (Cth). Section 501(3) provides that the Minister may cancel a visa where its holder does not pass the ‘character test’ — which may occur where, among other things, the person has a substantial criminal record, or the Minister reasonably suspects the person is associated with an organisation involved in criminal conduct — and where the visa cancellation would be in the ‘national interest’. Section 503A requires that the Minister divulge or communicate information to a court or tribunal that is reviewing a purported exercise of the character test-cancellation power. The plaintiff and applicant were both New Zealand citizens resident in Australia who held Class TY Subclass 444 Special Category (Temporary) Visas. In each case, the Minister issued them with a decision to cancel the visa, purportedly made under s 501(3), on the basis that they were members of the Rebels Outlaw Motorcycle Gang, which had been involved in criminal conduct, and noted that in making the decision the Minister had considered information that was protected from disclosure to them under s 503A, but with no further details beyond that.

The first question in the special case agreed by the parties requested that the High Court determine

whether either or both of ss 501(3) and 503A(2) of the Act Continue reading

Ramsay Health Care Australia Pty Ltd v Compton

The High Court has dismissed an appeal against a decision of the Full Federal Court on the circumstances in which a bankruptcy court may ‘go behind’ an earlier debt judgment. In a 2015 judgment, the NSW Supreme Court held that Compton, who had guaranteed the Ramsay’s debts, now owed almost $10 million to the company, and rejected his contention that he was not aware of the debts as they were not attached to the guarantee papers he had signed. When Compton himself went bankrupt, Ramsay presented a creditor’s petition to the Federal Court to sequester the debt to preserve it from the demands of other creditors, and Compton, in response, submitted new evidence that he contended showed he never actually owed anything to the company. Section 51(1)(c) of the Bankruptcy Act 1966 (Cth) provides that

At the hearing of a creditor’s petition, the Court shall require proof of: …
(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

The FCAFC unanimously held that the primary judge should Continue reading

Forrest and Forrest Pty Ltd v Wilson

The High Court has allowed an appeal against a decision of the Western Australian Court of Appeal on the statutory preconditions for the grant of mining leases. In 2011, two of the respondents made applications to have their mining exploration licences converted into lining leases. Those applications did not include a ‘mineralisation report’ (which arrived four months later) or a ‘mining operations statement’ (which never arrived), both of which the Mining Act 1978 (WA) required an application ‘shall be accompanied by’. Nonetheless, the Mining Warden recommended the leases be granted and the Minister made the decision to do so. The WASCA held that while the applications failed to meet the requirements of the Act, that failure did not preclude the warden or Minister from considering or granting the applications, as they were not factors that had to be considered before the leases could be recommended or granted.

The High Court held, 4:1, that the WASCA erred in its construction of the statutory regime (Kiefel CJ, Bell, Gageler and Keane JJ, Nettle J dissenting).

The majority (Kiefel CJ, Bell, Gageler and Keane JJ) emphasised that considering the WASCA’s reasoning must begin with a consideration of the majority judgment in Project Blue Sky v ABA [1998] HCA 28. Whereas the WASCA had relied on that approach to conclude that the document submission were not conditions precedent to a hearing or recommendation by the warden (see [47]ff), the majority held Continue reading

Plaintiff S195-2016 v Minister for Immigration and Border Protection

The High Court has decided a special case on the legality of the Australian Government’s designation of Papua New Guinea as a regional processing country and the effect of a PNG Supreme Court decision on those arrangements.

The plaintiff is an Iranian national claiming refugee status who was detained as an ‘unauthorised maritime arrival’ and later taken to PNG (pursuant to s 198AD of the Migration Act 1958 (Cth)) in line with the ‘regional processing’ arrangements that had been put in place, namely, the 2012 designation of PNG as a regional processing country (under s 198AB(1)) and a direction made by the Minister in 2013 to move the plaintiff there (under s 198AD(5)). Once in PNG, the plaintiff became subject to PNG law and the directions of the PNG Minister for Foreign Affairs and Immigration, which required that he remain at the Manus Regional Processing Centre, which is run by Broadspectrum (Australia) Pty Ltd pursuant to a contract between that company and the Commonwealth. The PNG Minister rejected the plaintiff’s application for refugee status, though he has not yet been removed from Manus. Prior to this determination, the PNG Supreme Court handed down its decision in Namah v Pato [2016] PGSC 13, in which the PNGSC held that the Continue reading

Katanas v Transport Accident Commission

The High Court has dismissed an appeal from a decision of the Victorian Court of Appeal on statutory assessments of whether a mental disorder is ‘severe’ in the context of transport accidents. The appellant was injured in a car accident and was diagnosed with post-traumatic stress disorder. Section 93 of the Transport Accident Act 1986 (Vic) allows for a transport accident victim to recover damages for injuries suffered, including ‘severe’ mental disorders. While the Act does not define the meaning of ‘severe’, the ‘narrative test’ in Victoria was stated in Humphreys v Poljak [1992] VicRp 58 (emphasis added by the High Court, at [4]):

To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?

The trial judge held that the appellant’s PTSD was due to the accident, but given the wide range of social, recreational and domestic matters that she participated in, it failed to reach the threshold of ‘severity’ require by the statue and the test. The VSCA held, by majority, that the trial judge erred in approaching Continue reading

Knight v Victoria

The High Court has determined a special case on whether s 74AA of the Corrections Act 1986 (Vic) is invalid as contrary to ch III of the Constitution, holding that it is not. The plaintiff pleaded guilty to seven counts of murder and 46 counts of attempted murder, and was sentenced to a total non-parole minimum term of 27 years, which expired on or around 8 May 2014. A month before, the Parliament of Victoria enacted s 74AA, which purported to prevent the Adult Parole Board from releasing the plaintiff, who is named in the section, unless it is satisfied that the plaintiff is in imminent danger of death or is seriously incapacitated and thus unable to harm any person. The plaintiff brought a special case before the Continue reading

IL v The Queen

The High Court has allowed an appeal from a decision of the NSW Court of Criminal Appeal on the intersection of constructive homicide and joint criminal enterprise. The appellant and victim were involved in the manufacture of methamphetamine, during the course of which a fire was sparked by a gas burner killed the victim. The constructive murder portion of Section 18(1) of the Crimes Act 1900 (NSW) provides that

[m]urder shall be taken to have been committed where the act of the accused … causing the death charged, was done  … during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years

The appellant was tried on one count of drug manufacturing, one count of murder (Count 2a) and in the alternative, one count of unlawfully causing the death of the victim (Count 2b). At trial, the Crown could not exclude the possibility that the accused caused his own death, but contended that the appellant was nonetheless guilty of constructive homicide because the victim died in the course of committing Count One, which here carried a penalty of life imprisonment. At the conclusion of the trial, the trial judge, Hamill J, directed the jury to acquit the appellant of Counts 2a and 2b on the basis that the principles of common purpose and constructive murder could not interact to make the appellant liable for murder. The NSWCCA overturned that ruling, holding that it did not matter whether the appellant foresaw the victim’s death or the fire itself, whether lighting the burner was a joint act, or whether the defendant foresaw the victim would probably be harmed. Continue reading

Commissioner of Taxation v Jayasinghe

The High Court has allowed an appeal against a decision of the Full Federal Court on income tax exemption for officials of international organisations. The respondent was employed as a civil engineer on a United Nations project in Sudan. Section 6(1)(d)(i) of the International Organisations (Privileges and Immunities) Act 1963 (Cth) provides that a person holding an office in an international organisation to which the Act applies (which includes the UN) will have the privilege of, among other things, ‘[e]xemption from taxation on salaries and emoluments received from the organisation’ (sch 4, cl 2). A majority of the FCAFC held that the Administrative Appeals Tribunal was correct in finding that the engineer did hold an ‘office’ under the Act and was an ’employee’ of the United Nations, and was thus exempt from income tax on his income. On appeal to the High Court, the central issues were whether the appellant did hold an office within the meaning of s 6(1)(d)(i), and whether a 1992 determination by the Continue reading

Rizeq v Western Australia

The High Court has dismissed an appeal on a constitutional matter on the operation of s 79 of the Judiciary Act 1903 (Cth). The appellant was a New South Wales resident who was convicted of state drug offences against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) in the Western Australia District Court by a majority jury verdict. As the trial was a ‘federal diversity’ matter (that is, between a state and the resident of another state), the WADC tried the appellant in exercise of its federal jurisdiction. The WASCA dismissed his arguments that this majority verdict was inconsistent with the requirement in s 80 of the Constitution that juries must return unanimous verdicts for convictions, and held that Western Australia’s state law on majority verdicts, and not s 80, applied to the case as a federal diversity matter, due to the operation of s 79. Before the High Court the appellant sought to contend that the WASCA erred in its application of the High Court’s decision in Momcilovic v The Queen [2011] HCA 34, and that it erred in its approach to the interaction between the State law and s 79.

The High Court unanimously dismissed the appeal.

The plurality (Bell, Gageler, Keane, Nettle and Gordon JJ) held that s 6(1)(a) applied at the time of the appellant’s offences and continued to govern the assessment of his criminal liability, even though the WADC exercised federal jurisdiction to resolve the controversy between the appellant and WA about the Continue reading

The Queen v Dickman

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the admissibility of photoboard identification evidence. The respondent was convicted of intentionally causing serious injury and making a threat to kill on the basis that he was the ‘old man’ who participated in a gang bashing, as identified by the victim, who selected him from a photoboard two years after the crime (but had made other wrong selections at the time). A majority of the VSCA allowed his appeal against conviction, holding that the trial judge erred in failing to exclude the photobaord evidence because its ‘seductive quality’ outweighed its weak probative value, setting aside the convictions and ordering a new trial. Before the High Court, the Crown sought to challenge these conclusions, and contended that the VSCA erred in assessing the probative value by reference to the complainant’s unreliability.

The High Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) unanimously allowed the appeal and restored the convictions, holding that the real issue was the majority’s conclusion that the identification’s probative value was outweighed by the danger of unfair prejudice to the respondent: Continue reading

GAX v The Queen

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on unreasonable or insupportable jury verdicts. The appellant was convicted of aggravated indecent dealing with a child and acquitted of two other counts of the same offence. A majority of the QCA (Atkinson J, Morrison JA agreeing) rejected his appeal against that conviction, in which he contended that the guilty verdict was inconsistent with the not guilty verdicts for the other counts. Before the High Court, the appellant argued that the QCA majority failed to make an independent assessment of the evidence in determining that it was open to the jury to convict him, and that the majority erred in concluding that the verdict was not unreasonable (see at [21]–[22).

The High Court unanimously allowed the appeal. The plurality judges (Bell, Gageler, Nettle and Gordon JJ) noted that there was ‘force’ to the appellant’s arguments that the lead judgment of Atkinson J did not disclose her Honour’s own Continue reading

Air New Zealand v Australian Competition and Consumer Commission; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission

The High Court has dismissed two appeals against a decision of the Full Federal Court on restrictive trade practices law and the location of markets, specifically the meaning of a market ‘in Australia’. Section 4E of the Competition and Consumer Act 2010 (Cth) provides that for the purposes of the Act ‘market’ means, absent a contrary intention, a ‘market in Australia’. The ACCC brought proceedings against the two appellant airlines, who are both involved in transporting cargo from other countries into Australia, claiming that the airlines had engaged in collusive behaviour by fixing surcharges and fees on air cargo arriving into Australia from Hong Kong, Singapore and Indonesia. The airlines claimed that the markets for that cargo were located in the departure nations, not Australia, and thus the provisions of the Act did not apply to their dealings there. The primary judge agreed with the airlines, holding that the markets were located in those countries because they were where the decision to choose an airline to carry freight into Australia took effect (the ‘switching decision’), and that decision was made when the Continue reading

Hughes v The Queen

The High Court has dismissed an appeal against a decision of the New South Wales Court of Criminal Appeal on tendency evidence in the context of multiple child sexual offences. The appellant, a well-known actor in a 1980s television series, was convicted of nine child sexual offences and sentenced to 10 years and nine months imprisonment. Among the evidence at trial was evidence from a range of complainants and other witnesses on the appellant’s sexual interactions with them, which was said to establish a tendency of the appellant to act in a particular way or have a particular state of mind, specifically, holding a sexual interest in children, using his social, familial and employment relationships to gain access to them, and engaging in particular kinds of sexual conduct. The NSWCCA dismissed his appeal against the conviction and sentence, rejecting (among a number of other arguments) that the trial judge erred in allowing the tendency Continue reading

Aubrey v The Queen

The High Court has dismissed an appeal against a decision of the New South Wales Court of Criminal Appeal on the meaning of ‘inflict’ in ‘infliction of grievous bodily harm’ and the foresight of risk in establishing recklessness. Aubrey was charged with several offences related to his allegedly infecting his partner with HIV through unprotected sex and in the knowledge that he was HIV positive. The appellant sought to have a more general offence against s 35 of the Crimes Act 1900 (NSW) of maliciously inflicting grievous bodily harm quashed on the basis that, on the Crown’s factual case, the transmission did not constitute an ‘infliction’. The NSWCCA held that ‘inflicts’ should not be given a limited, technical meaning or require any violent act with an immediate result, and that transmitting a disease that manifests itself over time could amount to grievous bodily harm; special leave to appeal to the High Court against that decision was refused. Following these interlocutory appeals and a trial, Aubrey was convicted of maliciously inflicting grievous bodily harm. A differently constituted NSWCCA rejected his argument that this count disclosed no offence known to the law, agreeing with the reasoning in the earlier NSWCCA decision. Following a grant of special leave, the appellant sought to Continue reading

The Queen v Afford; Smith v The Queen

The High Court has decided two related appeals against decisions of the Victorian Court of Appeal and the New South Wales Court of Criminal Appeal on proof requirements for federal drug trafficking offences where the accused deny knowledge of drugs discovered in their luggage. Afford was arrested at Melbourne Airport for importing heroin hidden in oil and a laptop that he had been given as part of an apparent scam. A majority of the Victorian Court of Appeal allowed his appeal against conviction on the basis that Afford clearly did not want or intend to import any drugs. Smith was arrested at Sydney Airport with methamphetamine hidden inside soap and golf sets that he had been given as part of the scam. The NSWCCA unanimously upheld Smith’s conviction because his intent could be inferred from an admission that he had ‘significant misgivings’ about the gifts. The NSWCCA, which handed down its decision after the VSCA decision in Afford, also held that the VSCA erred in distinguishing the matter before it from Kural v The Queen [1987] HCA 16, in which the High Court held that the intention to import drugs can be inferred from a person’s awareness of a risk that the luggage contains drugs.

The High Court allowed the Crown’s appeal in Afford and dismissed Smith’s appeal against his conviction. The joint judges (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) Continue reading

Talacko v Bennett

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the enforcement of Australian judgments overseas in the context of bankruptcy. Section 15(2) of the Foreign Judgments Act 1991 (Cth), which lays out the procedure for an Australian court to issue a certified copy of a judgment for the purposes of enforcement in a foreign court, provides that a judgment creditor cannot make an application until the expiration of any ‘stay of enforcement’. Section 58(3) of the Bankruptcy Act 1966 (Cth) provides that when a debtor has become bankrupt ‘it is not competent for a creditor  to enforce any remedy against the person’.

Following a long-running family dispute over properties in then Czechoslovakia that were expropriated by the Communist regime, the VSC held in 2009 that one sibling had reneged on an agreement with the others to Continue reading

Plaintiff M96A/2016 v Officer in Charge, Melbourne Immigration Transit Accommodation

The High Court has allowed a demurrer and dismissed proceedings in relation to a challenge to the constitutional validity of ss 189 and 196 of the Migration Act 1958 (Cth). The plaintiffs, Iranian asylum seekers detained on Nauru since 2014, were brough to Australia under s 198B for the ‘temporary purpose’ of medical treatment on mainland Australia. While in Australia, they contended that there was no lawful basis for their detention while temporarily in Australia, arguing that a non-citizen brought to Australia for a temporary purpose cannot be detained under ss 189 and 196, because that detention would constitute an invalid exercise of federal judicial power by the Executive. Continue reading

Pickering v The Queen

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on whether part of a general defence of compulsion is available for the crime of manslaughter under Queensland’s criminal code. During a fight with his best friend, Pickering produced a knife and warned the deceased to stay away from him. The deceased charged at him and during the scuffle Pickering’s knife stabbed and killed the deceased. A jury acquitted him of murder, but convicted him of manslaughter. The QCA rejected Pickering’s arguments that the trial judge should have directed the jury on the general defence of reasonably resisting violent threats (known as ‘compulsion’) in s 31(1)(c) of the Criminal Code 1899 (Qld), and not just the narrower defence of self-defence in s 271. Section 31 provides that a person is not criminally responsible for an act or omission when it is reasonably necessary to resist actual and unlawful violence threatened to that person, though the protection does not extend to actions which would constitute murder Continue reading

Re Day [No 2]

The High Court, sitting as the Court of Disputed Returns, has answered a set of questions referred to it by the Senate regarding the qualifications of Robert John Day AO to be chosen as a senator under s 44(v) of the Constitution. The Court held that he was ineligible to be chosen, that there is a vacancy in the place for which he was returned, and that that vacancy will be filled by a special count of ballots.

Section 44(v) provides that any person who has any direct or indirect pecuniary interested in any agreement with the Commonwealth Public Service shall be incapable of being chosen or sitting as a senator.

Day was first elected to the Senate in 2013, taking office in July 2014. Following the 2016 double dissolution election, he was declared re-elected to the Senate in August 2016. In December 2015, the Commonwealth entered into a lease agreement with Fullarton Investments Pty Ltd, the registered proprietor of a property on Fullarton Rd in Kent Town, South Australia. The property had been used by Day as an office since April 2015, and the December lease was for the purposes of Day’s office accommodation (an ordinary parliamentary benefit). Through a set of transactions in 2014 (see, eg, [6]ff), the ownership of the Fullarton Rd Property passed from B & B Day Pty Ltd — controlled by Day (and later his wife) and the Continue reading

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on contract clause amendments and liability for rates and land taxes. The respondent is the current tenant on an ambiguously amended old-form 99-year lease, concluded between an earlier landlord and tenant in 1981, over farmland now owned by the appellant. Clause 4 of the lease stated, and was amended by striking through, that: ‘all rates taxes assessments and outgoings whatsoever excepting land tax which during the said term shall be payable by the Landlord or tenant. A majority of the VSCA held that this clause left the landlord liable for those payments including land taxes levied upon the landlord. Kyrou JA, in dissent, held that this interpretation was not tenable because of the existence of cl 13, which required the tenant to pay the entire 99-year rent in advance, Continue reading

Kendirjian v Lepore

The High Court has allowed two appeals against a decision of the New South Wales Court of Appeal on advocates’ immunity. The appellant was the plaintiff in a car accident matter. The appellant sued his solicitor (Lepore) and barrister (Conomos) for professional negligence after they informed him that a settlement offer had been made just before trial, but allegedly failed to tell him the amount ($600,000). Instead, the appellant claimed the respondent lawyers rejected the offer without seeking instructions on the basis that it was too low, and advised him that his claim was worth twice as much. Upon the claim succeeding, the appellant received only $300,000. The NSWCA held that the advice or omission to advise was out of court conduct that led to the continuation of Court proceedings, and consequently fell within the scope of advocate’s immunity. After the NSWCA’s judgment, the High Court handed down its judgment in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16, holding that advocate’s immunity does not extend to negligent advice that leads to a settlement between the parties. On appeal to the High Court, the appellants contended that Continue reading

Prior v Mole

The High Court has dismissed an appeal against a decision of the Northern Territory Court of Appeal on the legality and consequences of a public drunkenness arrest. Two police officers fined the appellant for drinking in public and, following an altercation, took him into protective custody purportedly under s 128 of the Police Administration Act (NT). Section 128(1) allows a police officer to take a person into custody if the officer has reasonable grounds for believing the person is intoxicated in a public place and because of that intoxication is unable to care for him or herself, may intimidate, alarm or cause substantial annoyance to people, or is likely to commit an offence. The appellant was acquitted on a charge of disorderly behaviour, Continue reading

Kumar v Minister for Immigration and Border Protection

The High Court has allowed an appeal against a decision the Federal Court of Australia on the extension of time limits on visa applications that fall on a weekend. The appellant received the respondent’s application for a temporary student visa on a Monday and rejected it on the basis that the applicant must hold a temporary graduate visa, which for the respondent had expired on the Sunday immediately before. North J allowed the applicant’s appeal, holding that s 36(2) of the Act Interpretation Act 1901 (Cth), which provides that where an act ‘requires or allows a thing to be done’ and the ‘last day’ for doing it is a Saturday, a Sunday Continue reading

Perara-Cathcart v The Queen

Jeremy Gans, ‘News: The High Court Splits Three Ways on Three-Way Splits’ (1 March 2017).

The High Court has dismissed an appeal against a decision of the Full Court of the Supreme Court of South Australia on the use of evidence of illegal drug dealing within a rape trial. A jury convicted the appellant of rape and making a threat to kill against K. During the trial the prosecution led evidence from K and her boyfriend J that the appellant had supplied them with methylamphetamine prior to the rape and death threat incident, and marijuana at a later date. The SASCFC held that both K and J’s evidence was admissible in the appellant’s trial because they cast light on both the prosecution’s claim that the rape Continue reading

Bondelmonte v Bondelmonte

The High Court has dismissed an appeal against the Full Court of the Family Court on whether teenage children removed from Australia in breach of a parenting order must return despite their expressed unwillingness to do so. Following the Bondelmontes’ separation in 2010, the Family Court made equal shared parenting orders with living arrangements to be decided by the parties and the children. In 2016, the father removed the two teenage boys to the United States, where they stayed for more than 14 days, in breach of the parenting orders. A majority of the Full Court of the Family Court upheld the trial judge’s order Continue reading

Western Australian Planning Commission v Southregal Pty Ltd; Western Australian Planning Commission v Leith

The High Court has allowed an appeal against a decision of the Western Australian Court of Appeal on the availability of compensation for landowners affected by a public purpose reservation. The respondents were in the process of purchasing a parcel of land when it was made subject to a public purpose reservation under pt 4 of the Planning and Development Act 2005 (WA), which prevented the respondents from developing the land without the appellant Commission’s approval. The appellant refused that approval, and the respondents then claimed compensation under pt 11 div 2 of the Act, s 173 of which provides that ‘a person whose land is injuriously affected by the making … of a planning scheme is entitled to obtain compensation’ for that injurious affection. The appellant then declined each claim on the basis that none of the respondents fitted Continue reading

Commissioner of State Revenue v ACN 005 057 349 Pty Ltd

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the repayment of erroneous land tax payments. The appellant Commissioner wrongly assessed a double land tax payment of the respondent taxpayer’s land between 2008 and 2012, and repaid the excess amounts assessed. The Commissioner refused to repay similar excessive payments from 1990 to 2002. The Court of Appeal held that the earlier assessments contained the same duplication error as the later one. The Court of Appeal noted that that error was not disclosed on the face of the assessments and could not have been discovered by the taxpayer with reasonable diligence, though it was known to the Commissioner, and ordered repayments. The Court of Appeal Continue reading

Palmer v Ayres, Parbery and Owen as liquidators of Queensland Nickel Pty Ltd (in liq); Ferguson v Ayres, Parbery, Owen as liquidators of Queensland Nickel Pty Ltd (in liq)

The High Court has decided a constitutional matter on the validity of s 596A of the Corporations Act 2001 (Cth), holding that the section is not invalid as contrary to ch III of the Constitution by conferring non-judicial power on federal courts and courts exercising federal jurisdiction. Section 596A provides that on the application of an eligible applicant, a court is to summon a person for examination about a corporation’s examinable affairs if it is satisfied that the person is or was an officer of the company prior to it being wound up.

The plaintiffs were directors of Queensland Nickel at various points from 2013. Following a successful application by creditors to wind the company up in April 2016, the defendant liquidators summoned the plaintiffs for examination under s 596A, and the plaintiffs were examined and produced documents. The plaintiffs then challenged the constitutional basis of s 596A, making six submissions in support of that argument. First, that the power to summon a person under s 596A did not satisfy the functional or ‘classical’ Continue reading

Re Culleton [No 2]

The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the President of the Senate over the validity of the election of Senator Culleton. Culleton was elected as a Senator for the State of Western Australia in July 2016. In March 2016, prior to his nomination and election, he was convicted in his absence of larceny in a NSW court, and was liable to be sentenced to up to two years imprisonment. In August 2016, after his election, Culleton was brought before the court, which annulled the earlier conviction and heard the matter afresh, found him guilty on his own plea, and then dismissed the charge without convicting him of the offence. In November 2016 the President of the Senate referred the matter of Senator Culleton’s eligibility to the Court of Disputed Returns (see at [10]–[12]).

Section 44(ii) of the Constitution provides that ‘Any person who:

has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer … shall be incapable of being chosen or of sitting as a senator.

The Court unanimously held that because Culleton had been convicted of and was subject to be sentenced for an offence punishable by imprisonment for a year or longer, s 44 operated to disqualify Culleton from being elected Continue reading

RP v The Queen

The High Court has allowed an appeal against a decision of the New South Wales Court of Criminal Appeal on the presumption of lack of criminal responsibility by offenders under 14 years of age. The appellant was 11 to 12 years old when he allegedly sexually abused his younger brother on two occasions. A child offender under 14 years old is presumed to not be responsible for his or her crimes, though this presumption can be rebutted by evidence that the offender was aware that the conduct was seriously wrong, as distinct from an act of ‘mere naughtiness or mischief’ (see NSWCCA at [34]). The NSWCCA unanimously upheld the trial judge’s ruling that the presumption was rebutted by evidence that the appellant Continue reading

ElecNet (Aust) Pty Ltd (as Trustee for the Electrical Industry Severance Scheme) v Commissioner of Taxation

The High Court has dismissed an appeal against a decision of the Full Federal Court on the meaning of ‘unit trusts’ for tax purposes. The appellant is the trustee of the Electrical Industry Severance Scheme Trust (the ‘EISS trust’), which protects redundancy or insolvency pay entitlements of employees in the electrical trades industry by requiring employers to pay money into a fund, from which payments could be made to employees following termination of their employment. The appellant sought a ruling from the respondent that the EISS trust was a unit trust for the purposes of div 6C of the Income Tax Assessment Act 1936 (Cth), and the Commissioner ruled that it was not a unit trust. While div 6C does not define ‘unit trust’ it does define ‘unit, in relation to a prescribed trust estate, includes a beneficial interest, however described, in any of the income or property of the trust estate’. On appeal to the Federal Court, Davies J held that the EISS trust was a Continue reading

Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd

Matthew Bell, ‘Cashflow is the “Lifeblood” of the Construction Industry: Has the High Court Applied a Torniquet? Southen Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd‘ (23 December 2016).

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on jurisdictional error in the context of a building commission adjudication over a construction contract and ‘reference date’ requirements. Following the collapse of a building agreement between the parties, an adjudicator ordered the appellant company to make payments to the respondent builder in recognition of progress on the works. Section 8(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) provides that ‘[o]n and from each reference date under a construction contract’, Continue reading

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act

The High Court has dismissed an appeal against a decision of the New South Wales Court of Appeal on a land rights claim over a former prison. Under s 36(1) of the Aboriginal Land Rights Act 1983 (NSW), Crown lands that may be subject to a land rights claim must not be lawfully ‘occupied’. After Berrima Gaol was decommissioned in 2011, the Crown Lands Minister rejected the appellant’s claim over the land on the basis that while the prison was no longer operating, the land and buildings were still occupied by Corrective Services NSW which guarded and maintained them, and used the site for working visits by community service order workers. The NSWCA held that the land was still occupied on the basis of regular use by the community service order workers, that no statutory authorisation was necessary for that occupation to be lawful, Continue reading

Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd

The High Court has allowed an appeal against a decision of the Full Federal Court on the applicability of competition law to the airline booking industry. Flight Centre and several airlines reached an agreement under which the airlines would not offer fare prices directly to potential passengers that were lower than the prices offered by Flight Centre. The ACCC alleged that this constituted a breach of ss 45 and 45A of the Competition and Consumer Act 2010 (Cth). The trial judge agreed that the airlines and Flight Centre were in competition in a market to supply booking services to consumers and distribution services to airlines, and that the arrangements aimed to set a floor under the price of flights offered for sale and thus maintained or controlled the price of Flight Centre’s booking services. The FCAFC found in favour of Flight Centre, holding that there was no separate market for booking or distribution services (see at [168]), that Flight Centre operated within the market Continue reading

Simic v New South Wales Land and Housing Corporation

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on the construction of a bank guarantee contract. The appellant is the guarantor of a building company that tendered for a building contract from the respondent housing corporation. As part of that contract, the appellant provided security in the form of a bank guarantee contract, authorising the transfer of approximately $140,000 to the respondent if requested by the respondent. The contract was prepared with multiple errors, including mistakes in the name of the respondent corporation and its ABN, causing the bank to refuse to pay the amount when the respondent made the request. The NSWCA held that while the principle of strict compliance with the terms of the contract was a requirement of performance rather than construction, the principle of autonomy (that letters of credit and guarantees should be construed independently from the underlying agreements that lead to their creation) must form part of the process of construction. The Continue reading

The Queen v Kilic

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on sentencing guidelines and ‘manifestly excessive’ sentences. The respondent pleaded guilty to intentionally causing serious injury after he doused his partner in petrol and set her alight. The offence carried a maximum penalty of 20 years, and the sentencing judge sentenced the respondent to 15 years imprisonment. The VSCA held that the sentence significantly exceeded those previously given for convictions that involved more horrific assaults and where defendants did not show remorse, were young, or made an early guilty plea (as had all occurred here), and reduced it to 10 years and 10 months imprisonment. Appealing the VSCA decision to the High Court, the Crown contended that the original sentence cannot be manifestly excessive if it falls into the ‘worst case’ category for the offending, and that the VSCA erred in its approach to evaluating ‘current sentencing practices’ as applied by the sentencing judge.

The Court (Bell, Gageler, Keane, Nettle and Gordon JJ) unanimously allowed the Crown’s appeal, holding that the Court of Appeal erred in its approach to ‘current sentencing practices’ when it held that the differences between the sentencing judge’s conclusions and those in other cases warranted the conclusion that the sentencing judge imposed a manifestly excessive sentence.

The Court first held that the VSCA erred in describing the offence as falling within the ‘worst category’ of cases of intentionally causing serious injury. Given that the ‘worst category’ means an instance of an offence which warrants the Continue reading

Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation

The High Court has heard two appeal against a decision of the Full Federal Court on corporate residency for the purposes of tax assessments. Section 6(1) of the Income Tax Assessment Act 1936 (Cth) provides that a company is resident in Australia for tax purposes if it is either incorporated in Australia or if it carries on business in Australia and has either its central management and control in Australia or its voting power controlled by shareholders who are Australian residents. The appellant companies were all incorporated outside of Australia and ultimately owned by two Cayman Islands companies. Borgas, a businessman based in Switzerland, was the sole shareholder in the Cayman Islands holding companies and a director of each of the appellant companies, and was presented as the owner of the companies. The Commissioner challenged the companies’ claims that they were not residents in Australia for tax purposes. The primary judge found that Gould, a Sydney-based accountant, was the true owner of one of the Cayman Island companies and its appointor, holding the power to appoint Continue reading

Castle v The Queen; Bucca v The Queen

The High Court has allowed an appeal from the Full Court of the South Australian Supreme Court on admissions and discreditable conduct evidence. Castle and Bucca were convicted by a jury of murdering McDonald, Castle’s former partner, who was shot while sitting in a car driven by Castle. The prosecution’s case was that Castle and Bucca arranged the shooting, with Bucca hiding in the back seat. The defence for Castle contended that the shooter was another person, Gange, who had crept into the car through the car boot, unbeknownst to Castle, and shot McDonald. At trial Pascoe, an associate of Castle and Bucca, gave evidence that Bucca had shown handguns to her father months before the shooting, and that Bucca had said to her father after the shooting that ‘he didn’t mean to do it’. M gave evidence of a conversation between Castle and Bucca on the night of the shooting planning to meet and confront McDonald, and that while Gange had left that night he returned home before before the shooting occurred. Telephone tower records suggest that Bucca and Castle were at the scene of the shooting, Continue reading

Van Ryn v The Queen

The High Court has made orders by consent between the parties, allowing an appeal against a decision of the New South Wales Court of Criminal Appeal on the sentencing of paedophiles. The defendant pled guilty to a series of child sexual assaults committed between 2004 and 2014, and was sentenced in the New South Wales District Court to an aggregate term of 13 years imprisonment. The Crown appealed against the sentence, contending that it was manifestly inadequate, as demonstrated by errors in the judge’s assessment of the sentence. The NSWCCA allowed the Crown’s appeal, concluding that the sentencing judge did make a number of errors that may reflect the inadequacy, specifically in making no finding on the objective seriousness of the offending, and not properly appreciating the importance of deterrence, making the sentence inadequate. The NSWCCA also noted that even if those errors did not ’cause’ the inadequacy, the sentence was plainly unjust, Continue reading

AAR15 v Minister for Immigration and Border Protection

The High Court has made orders by consent between the parties, allowing an appeal against a decision of the Federal Court on fact findings on the current status of ethnic conflicts. The applicant, from the Democratic Republic of Congo, sought refugee protection on the basis of his membership of the Kasai-Luba ethnic group, which he alleged was subject to persecution by the Katangan-Lunda group. The Administrative Appeals Tribunal concluded that on the country information before it the applicant did not face a real chance of serious harm due to his ethnicity, but cited only a 2006 International Crisis Group report which referred only to ‘tensions’, and did not cite or refer to a number of later reports from various bodies which illustrated risks of genocide, war crimes and ongoing ethnic conflict. A single-judge Federal Court rejected the Continue reading

Timbercorp Finance Pty Ltd (in liq) v Collins; Timbercorp Finance Pty Ltd (in liq) v Tomes

The High Court has dismissed two appeals against a decision of the Victorian Court of Appeal on the operation of Anshun estoppels — which prevents a party asserting a claim or raising an issue of fact or law if that claim/issue was so connected to the subject matter of an earlier proceeding that it was unreasonable in the context of that first proceeding to not have raised it then — in the context of individual members of an unsuccessful group proceeding. (On the statutory scheme for group proceedings see Supreme Court Act 1986 (Vic) pt 4A.) The appellants are liquidators of companies that were part of the Timbercorp Group and were incorporated to provide loans to investors in forestry projects. The respondents applied for these loans between in 2008, became part of a group proceeding brought by investors after Timbercorp collapsed in 2009. When the group proceeding was rejected, Continue reading

Comcare v Martin

The High Court has allowed an appeal against a decision of the Full Federal Court on worker’s compensation for the aggravation of a mental condition as a result of reasonable administrative action. After the applicant was bullied and harassed by her supervisor and later denied a permanent position under a different supervisor by a panel that included her current and prospective supervisor, she was diagnosed with an ‘adjustment disorder’ that rendered her unfit for work. Sections 5A and 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provide that Continue reading