The Supreme Court of the Australian Capital Territory today quashed David Eastman’s conviction for the 1989 murder of the Commissioner of the Australian Federal Police, Colin Winchester. This result followed a wide-ranging report into the safety of his conviction by former Northern Territory Chief Justice Brian Martin that concluded that his conviction was unsafe for a combination of reasons, the primary one being a finding of flawed science and bias by a ballistics expert. The Supreme Court agreed with Martin’s conclusion, but not his further view that any retrial would be impossible. Today’s decision is a lengthy and complex one raising difficult questions about judicial inquiries into the safety of finalised convictions, including matters such as whether the court is limited to inquiring into doubts about guilt (as opposed to the fairness of the trial), whether the court can have regard to material that is kept confidential from the parties, whether an otherwise strong circumstantial case becomes unsafe because of doubts about forensic evidence and whether retrial should be ordered so long after the original 1995 trial.
It may be that questions about these issues will be appealed to the High Court. If so, it will be the latest of many High Court rulings on Eastman’s prosecution, including Continue reading
A charity or a trust with a ‘political purpose’ has traditionally been held not to have charitable status (sometimes called the Bowman principle). In Bowman v Secular Society  AC 406, Lord Parker said at 442:
a trust for the attainment of political objects has always been held invalid, not because it is illegal, for every one is at liberty to advocate or promote by any lawful means a change in the law, but because the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.
This has been subsequently upheld in English case law in cases such as McGovern v Attorney-General  Ch 321 and Hanchett-Stamford v Attorney-General  Ch 173. The latter case held that while a new Charities Act had been enacted in 2006, this did not change the fundamental principle that charities with political purposes were not charitable.
By contrast, in 2010, a majority of the High Court of Australia declined to follow the English case law in Aid/Watch Incorporated v Commissioner for Taxation  HCA 42. At –, French CJ, Gummow, Hayne, Crennan and Bell JJ noted that agitation of political and public debate could be a societal good, and that the court did not have to decide on whether the political purposes furthered by the charity were legitimate.
Now, in In re Greenpeace  NZSC 105, a majority of the New Zealand Supreme Court has decided to follow the High Court’s lead. Following the decision of the New Zealand Court of Appeal in Molloy v Commissioner of Inland Revenue  1 NZLR 688, the Charities Commission in New Zealand had refused to register Greenpeace as a charity on the basis that two of its purposes were political, namely the promotion of disarmament and peace and the agitation of change to government policy and legislation. The Australian approach was an important influence on the Supreme Court’s decision to overturn the political purpose exemption (see – of In re Greenpeace). As with the High Court decision, the New Zealand Supreme Court was not unanimous and there were two dissenting judges. As the majority noted, there is still a possibility that Greenpeace will not qualify as a charity in light of arguments that it furthers illegal purposes by endorsing trespass and other such activities when advocating “non-violent direct action.” Now the question of Greenpeace’s status as a charitable entity has been remitted back to the Charities Commission for reconsideration in light of the New Zealand Supreme Court decision.
Tasmania’s upper house of Parliament will soon debate proposed laws that create new offences for conducting protests in a manner that disrupt business activities, including conducting protests on business premises or that impede access to the location for business activities.
The Workplaces (Protection from Protestors) Bill 2014 passed the Tasmanian lower house in late June 2014. On 19 August 2014 it was read for the first time in the Tasmanian Legislative Council. The Bill continues to generate protest and opposition from within parliament and beyond. The proposed bill creates new definitions of protest and business that, should the bill pass, will be much analysed by judges. However, as Melbourne Law School’s Professor Adrienne Stone has noted, the law may ultimately be subject to a constitutional challenge on the ground that it is inconsistent with the implied constitutional freedom of political communication. The limitation on protestors might be unreasonable or disproportionate to the desired purpose of the law – to protect businesses from disruption. Should a challenge to the law be brought before the High Court, it will add to the opportunities presented to the court last year in the cases of Monis and Corneloup and already this year in the Unions NSW case to develop jurisprudence on the implied freedom.
This week, the High Court decided three criminal law cases, declined to proceed with a fourth following a full hearing, awarded additional costs to the victor in an earlier matter and held two case management hearings: one, in the ongoing litigation about the Commonwealth’s powers to detain asylum seekers en route to Australia and another in a constitutional challenge to a NSW law revoking mining licences following a corruption inquiry.
As well, today, the High Court granted special leave to appeal in three commercial investment matters and a regulatory dispute involving a very high profile tragedy. Continue reading
Seven years ago, a majority of the High Court in Tofilau v R  HCA 39 upheld four Victorian convictions founded on an unusual criminal investigative method. The method (known in Australia as ‘scenario’ evidence) is for undercover police officers to recruit suspected criminals into fake criminal gangs and then trick them into confessing real crimes by telling them that such confessions are a requirement for membership. After further prompts (such as staged inquiries from real police and promised aid from ‘corrupt’ police), the scenario culminates in a detailed, videotaped interview with the gang’s ‘boss’, after which the sting is revealed to the stunned suspect. This astonishing method (whose details can only be published thanks to a 2005 High Court ruling rejecting a publication ban) was developed in Canada, and the High Court in 2007 relied heavily on its repeated endorsement by the Canadian Supreme Court in upholding its use here.
However, last week, Canada’s top court unanimously changed its mind Continue reading
This July – the High Court’s winter recess – has seen six lengthy hearings concerning legal action on behalf of passengers of a boat from India who have spent the balance of the month detained in an Australian government vessel. Continue reading
This week brought important developments in two significant proceedings that will soon be heard by the High Court: the urgent litigation over the fate of approximately 150 Sri Lankan asylum seekers held in an Australian cargo vessel; and the constitutional challenge to Queensland’s ‘bikie’ laws. Continue reading
Canadian journalist Catherine Clark, the daughter of a former Prime Minister and the host of Beyond Politics (shown on Canada’s public affairs cable channel) has conducted video interviews with the entire bench of the Supreme Court of Canada. Each runs for nearly 30 minutes. There are only eight interviews, as the Court’s ninth seat was unoccupied until recently (for reasons explained here). The interviews are available online at the website of Beyond Politics and on the show’s youtube channel (see the end of the list). In her interview, the current Chief Justice Beverly McLachlin reveals that she received the phone call offering her a place on the court while vacationing with her twelve-year old in Townsville.
Clark’s interviews resemble video interviews given by all sitting judges of the United States Supreme Court in 2009 on CSPAN. The American and Canadian Supreme Courts’ willingness to give interviews while on the bench contrasts with the general practice of Australia’s High Court, which is generally limited to rare interviews with the Chief Justice on special occasions, such as impending retirement [UPDATE: see comment below.] Last year, The Australian reported that the Court’s current Chief Justice, Robert French, has ruled out any media interviews before he retires in 2017.
Media reports state that the High Court has issued an injunction preventing the Australian navy from handing over approximately 150 people, said to have travelled by boat to seek asylum in Australia, to Sri Lankan officials. This follows confirmation by the Australian government of an incident involving 41 people:
Forty one potential illegal maritime arrivals who were intercepted on the SIEV were returned to Sri Lankan authorities yesterday (Sunday 6 July). The 41 Sri Lankan nationals were transferred at sea, in mild sea conditions from a vessel assigned to Border Protection Command (BPC) to Sri Lankan authorities, just outside the Port of Batticaloa. All persons intercepted and returned were subjected to an enhanced screening process, as also practised by the previous government, to ensure compliance by Australia with our international obligations under relevant conventions.
The Australian reports that the injunction was granted by Crennan J in an urgent hearing this evening and will apply until 4pm tomorrow, by which time a further hearing will have occurred.
A possible precedent for the reported injunction is an interim injunction granted by Hayne J on 7 August 2011 to prevent the first transfer of asylum seekers from Christmas Island to Malaysia under the ‘Malaysian Solution’. Continue reading
A recent Essential Poll records that Australia’s most trusted institution is the High Court of Australia. 20% of the 1835 people surveyed said that they placed “a lot of trust” in the High Court” and 37% said that they placed “some trust” in the High Court. The High Court outstripped all other institutions, but was closely followed by the ABC. The High Court also had the lowest level of distrust, with only 12% of respondents saying that they had “no trust” in the High Court. Political parties scored the lowest in the 2014 poll, with only 2% of people saying that they placed “a lot of trust” in political parties and 11% of people saying that they placed “some trust” in political parties. 50% of people said that they had “no trust” in political parties. Continue reading
Last week, the High Court held two directions hearings in Kuczborski v The State of Queensland, the long-expected constitutional challenge to multiple laws enacted by the Queensland Parliament in the early hours of 16th October last year as a response to a Gold Coast ‘brawl’ nineteen days earlier. In last Monday’s hearing, Keane J revealed that the High Court hoped to schedule the full hearing in Brisbane in the first week of September. Queensland’s new Solicitor-General, noting that the case would require a day of arguments each by the challenger and Queensland and may attract interventions from many other Attorneys-General, suggested that the hearing would take ‘at least three days’. A four-day hearing would be the second one this year. As I noted last month on the chaplaincy hearing’s fourth day, the two previous four-day matters in the High Court were in 2009 and 2006.
The length of this matter may be less to do with its significance or controversy, and rather is likely due to the number of laws being challenged and the number of grounds. Continue reading
Sometimes High Court judgments excite a lot of interest not only from lawyers, but from the general public. Williams v Commonwealth  HCA 23 (‘Williams [No 2]‘) is one such decision.
The immediate response from the Prime Minister was that the government would try to continue its support of chaplaincy in State schools despite the High Court’s decision. In a comment which was later roundly criticised by many, Coalition backbencher Andrew Laming said that an out-of-touch “alliance of Greens, gays and atheists” had mounted a campaign against chaplaincy culminating in the result of the latest case.
Some saw the case as a ‘Trojan Horse’ for a resurgence of States’ Rights activism, whereas others argued that it was a victory for LGBTIQ youth. Some were concerned about what was going to happen with regard to the funding for chaplains which had already been paid over.
The IPA opined that Williams [No 2] was a win for parliamentary democracy because it reiterated that decisions over how public money should be spent should be made by parliament, not the executive, and that the separation of powers was upheld. With respect, this is overstating the result of Williams [No 2]. Williams [No1] decided that the Commonwealth executive had no power to enter into the funding agreements for chaplaincy with Scripture Union Queensland. The High Court did not decide Williams [No 2] on the basis of parliamentary sovereignty, and as Professor Cheryl Saunders notes, the case ‘does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1].’ The judgment did not mention separation of powers. It decided the case on the narrower ground of whether there was any particular head of power which supported the funding in the specific instance of chaplains (it was found that there was no head of power which did support it). As Professor Simon Evans explains here, it hinged around whether there was a ‘benefit to students’. Williams [No 2] simply represents a tightening of our understanding of the legislative heads of power.
Other media commentators were interested in what other programs could be affected by the ruling. Indeed, a perusal of the programs which are covered by Schedule 1AA of the Financial Management and Accountability Regulations 1997 (Cth) makes for interesting reading.
This past fortnight, the Court heard two constitutional challenges (to NSW’s consorting offence and a Queensland indefinite detention statute) and two potential landmark appeals (on the admissibility of expert evidence and tort liability for defective building), and also published five judgments (including rulings on the validity of the PNG solution, the chaplaincy program and the cap on protection visas). As well, the Court made some quieter rulings, revoking special leave in a technical case about refugee appeals and allowing a criminal appeal about DNA transfer. To cap off its busy fortnight, the Court also took on two new private law appeals from the following decisions of the NSW Court of Appeal: Continue reading
As noted on our case page and in the media, the High Court has ruled that the funding arrangement for the National School Chaplains program is not supported by the Commonwealth’s legislative or executive power and is therefore invalid.
Opinions on High is proud to announce that it will host an online symposium on the Williams [No 2] decision starting next week. Commentators from Melbourne Law School will post their analyses of the Court’s judgments and the implications of the decision. As always, readers will be able to comment and ask follow up questions on each piece. Anonymous comments are permitted provided you supply a valid email address.
Leslie Zines, a doyen of Australian constitutional legal academy, education and practice and author of The High Court and the Constitution, died on 31 May 2014.
On behalf of the Opinions on High team I offer our condolences and sympathy to Leslie’s family and share the sadness experienced by all those who got to know Leslie during his life. Leslie’s life was marked by achievement, dedication and generosity. Geoffrey Lindell offered a glimpse of these markers in his 2010 Federal Law Review reflection on his relationship with Leslie.
Leslie’s scholarship focussed on relationships within the federal domain and his personality and personability meant that he readily built relationships within the ANU College of Law, where he dedicated much of his working life. It was there where I met Leslie and shared a law school corridor for five years. This was a time when he was nearing the end of his career at the university and I was starting mine. His reputation as a highly esteemed scholar and intellect, something I had gleaned from his involvement in and writing about the Tasmanian Dam case (which I continue to use in my teaching), preceded him. Despite this, Leslie was accessible, friendly and generous with his wisdom and laughter. That is how I will remember him.
We have recently passed the 20 year anniversary of the High Court’s decision in Burnie Port Authority v General Jones Pty Ltd  HCA 13 (24 March 1994). However, the judgment is still subject to debate. Our current exploitation of land for natural resources has encouraged further consideration of this High Court decision. Continue reading
The High Court today granted special leave to appeal in seven cases as follows: Continue reading
The High Court today heard its fourth day of oral arguments in Ron Williams’s current challenge to the National School Chaplaincy Program. The High Court’s willingness to allow days of argument on major cases sharply contrasts with the United States Supreme Court, which abandoned the practice of lengthy arguments in 1849, and now typically allows just 30 minutes per side and often hears two full cases in a morning. The more relaxed approach in Australia allows arguments to develop and even alter substantially during the course of a hearing. However, that flexibility was itself a matter of controversy in Williams’s previous challenge to the Chaplaincy Program in 2011. Continue reading
The High Court played a role on both occasions when jury findings against Raymond Carroll in relation to the death of toddler Deidre Kennedy were overturned on appeal. In 1985, Carroll’s conviction for Kennedy’s murder was quashed by Queensland’s Court of Criminal Appeal, relying in part on the High Court’s judgments in Chamberlain (to hold that the jury should have been directed that it should not rely on forensic evidence that his teeth matched a bite on the toddler’s body unless satisfied of that fact beyond reasonable doubt) and Markby, Perry and Sutton (to hold that ‘similar fact’ evidence of Carroll’s alleged biting of another child was inadmissible). Each of these High Court judgments have since been qualified by later High Court judgments (Edwards and Pfenning) and (in some states) legislation. More importantly, in 2002, the High Court ruled that Carroll’s subsequent conviction for perjury (for allegedly lying at the 1985 trial when he denied murdering the toddler) was an abuse of process because of the rule against double jeopardy. Following England’s lead, most Australian states and territories have since enacted exceptions to the rule against double jeopardy.
Yesterday, the Queensland Attorney-General announced an extension to the state’s existing exceptions to the double jeopardy rule that has particular implications for Raymond Carroll: Continue reading
In yesterday’s special leave hearings in Melbourne and Sydney, the High Court rejected all the applications from Melbourne but gave positive responses to three from Sydney. The three cases that will now be heard by the full Court are: Continue reading
In 1996, the High Court – in arguably its most significant constitutional law decision in recent decades – struck down a NSW law providing for the continued detention of one person, Gregory Wayne Kable, ruling that a number of aspects of that law, including its one-person nature, were incompatible with the institutional integrity of state Supreme Courts required by the federal constitution. Last year, the Court revisited that case, ruling out Kable’s claim that he was falsely imprisoned under the invalid law. It seems likely that the High Court will revisit that decision in another way this year. The Victorian Parliament today enacted a Bill barring parole except in cases of permanent physical incapacity or imminent death for just one person – the ‘prisoner Julian Knight’.
A recent article in Slate reported that female lawyers who dress too “sexily” are said to be a “huge problem” in US courtroom. Some courts have instituted “dress codes” and some universities have instructed their students on what appropriate dress should be. The dress codes and instructions have included instructions for men, but have concentrated on female clothing. When I posted this on Facebook it started off a discussion. A number of male lawyer friends made the point that men were subject to dress codes too, and that men who didn’t wear ties or who wore short sleeves would be likely to contravene the dress code. This is true. However, I think that women have to navigate a vastly more complex situation. Continue reading
A majority of Canada’s Supreme Court today ruled that:
the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.
‘[T]he Court’ the Court referred to, was, of course, the very Court that made that ruling. If the dissent of Moldaver J had prevailed, Nadon J would now be (and would have been for months) a fellow member of the Court that just ruled him ineligible for membership. The background to the decision is described here. Continue reading
The High Court today held special leave hearings today for sixteen matters from the ACT, NSW, South Australia, Western Australia and the Federal Court. Of these, six cases were granted special leave to appeal. The six cases are: Continue reading
Last year, some Australians learnt the outcome of the High Court’s same-sex marriage decision minutes (or more) before it was delivered. This weekend, the result of a UK Supreme Court decision was announced in the UK press four days before it was delivered. The case concerned an investigation of an alleged leak from a government emergency committee to a Sky News reporter. Scotland Yard’s Chief Commissioner asked the Supreme Court to overturn a lower court’s ruling that a court cannot rely on secret (undisclosed) government evidence to order a media organisation to disclose documents relevant to the investigation. However, according to one paper:
The Mail on Sunday understands that the Supreme Court has rejected his demand. Its ruling is due to be published on Wednesday.
As yesterday’s Supreme Court judgment revealed, the Mail’s reporting was accurate.
So, who leaked the Court’s media leak judgment to the media? Continue reading
In February, I noted that Gordon J had handed down her decision in Paciocco v Australian and New Zealand Banking Group Limited  FCA 52, the bank fees case. The ABC reports that the bank customers lodged an appeal yesterday. The Bank is still considering its position, and has three weeks to make a decision, but I would not be surprised if it also appealed. Nor would I be surprised if this case ends up before the High Court again.
Update: it’s always nice to have one’s predictions confirmed. As pointed out in comments below, the Sydney Morning Herald reports that the Bank filed an appeal today.
While Russia was busy reminding the world of, among other things, the perennial problems of compliance and enforcement of international law (see the coverage on Opinio Juris here and here), the judges of the International Court of Justice delivered a sharp series of orders against Australia in its ongoing dispute with Timor-Leste before the ICJ. On the bench as Australia’s nominated judge ad hoc — but voting against all three declarations — was former High Court Justice Ian Callinan AC.
On 3 December 2013, ASIO intelligence officers seized documents, data and property located at the ACT offices of Bernard Collaery, a lawyer advising Timor-Leste in its ongoing dispute with Australia at the Permanent Court of Arbitration over a $40 billion oil and gas treaty. Timor-Leste requested that the ICJ make ‘indications of provisional measures’ — roughly equivalent to interlocutory orders in domestic courts. Continue reading
Last Friday saw a dubious first: video of argument before the United States Supreme Court, now available on youtube. The matter was McCutcheon v Federal Electoral Commission, argued last October, on the vexed issue of campaign finance laws. There are several reasons this ‘first’ is dubious. For starters, there are two past clandestine photos of the court at work, albeit taken over eighty years ago. As well,the youtube video barely shows anything, as it was also taken surreptitiously and focused mainly on a protest by a group opposed to the Court’s controversial Citizens United ruling striking down limits on corporate donations. (Australia’s High Court heard and ruled on a similar case late last year.) While the video has drawn modest attention to issue of campaign financing, its main impact has been to prompt some interesting discussion of the legality of videos and protests inside a national court.
Economists from Monash University, Dr Vinod Mishra and Professor Russell Smyth, have published a paper in the Australian Journal of Political Science examining the effect of barrister gender on appeal outcomes in the High Court of Australia. According to the abstract:
We examine the relationship between gender of the barrister and appeal outcomes on the High Court of Australia. We find that an appellant represented in oral argument by a female barrister, opposed to a respondent represented in oral argument by a male barrister, is less likely to receive a High Court justice’s vote. However, we also find that the appellant disadvantage of having a female barrister present oral argument is (partially) offset in the case of liberal justices and on panels having a higher proportion of female justices. The extent to which the disadvantage is offset, and potentially turns from being a disadvantage to an advantage, depends on the degree to which the justice is liberal and the proportion of female justices on the panel.
For non-subscribers, an earlier version of the paper is available here. Continue reading
The Hon Michael Kirby’s High Court career (from 1996 to 2009) has been bookended by inquiries undertaken for the United Nations High Commissioner for Human Rights into human rights initiatives and abuses of foreign states: milestones that underscore his commitment to and involvement in United Nations bodies particularly related to AIDS and human rights. In 1996 he reported for the final time on recommendations for a human rights based governance model for Cambodia, then emerging from years of conflict and human rights abuse. His focus then was to ensure that a new government created a political and legal regime that protected internationally recognised human rights. This week a report authored by former Justice Kirby was released that detailed the current and historic widespread human rights abuses committed by the government of North Korea against its own people. Kirby concluded that the abuses and crimes against humanity were perpetrated by the government, institutions and policies of the state. Continue reading
Further to my brief post two weeks ago linking to Grahame Orr’s piece on the WA Senate Election case on The Conversation, Professor Anne Twomey of the University of Sydney has posted ‘Missing Votes Means It’s Back to the Polls for Western Australia’ late yesterday on The Conversation. There is also a longer version of this post available on Sydney’s Constitutional Critique blog that goes into more detail about the facts of the case, the workings of the Court of Disputed Returns, and the decision itself. While several high profile electoral law cases have ended up before the High Court in recent years (Unions NSW v New South Wales  HCA 58; Rowe v Electoral Commissioner  HCA 46; Roach v Electoral Commissioner  HCA 43; Mulholland v Australian Electoral Commission  HCA 41), these have concerned constitutional issues around voting rights (Roach and Rowe) the registration of political parties (Mulholland) or electoral funding (Unions NSW), rather than the contestation of electoral results themselves before the Court of Disputed Returns. Given the rarity of its operation, it is all the more helpful to have timely expert commentary on the workings of the Court of Disputed Returns.
Twomey notes an issue that many readers will have considered: can Hayne J’s decision be appealed to the Full Court? Continue reading
At Friday’s special leave hearings, the High Court only granted leave to appeal in one case decided by the NSW Court of Appeal, a corporations law matter. However, the Court also ruled that it will hear and decide another case that is before the NSW Court of Appeal but which that court is yet to rule upon. The case is an ongoing prosecution of three people for committing the NSW crime of consorting. Even though there hasn’t been a trial so far, the matter was before the NSW Court of Appeal to determine whether or not the provision setting out the offence is invalid. Friday’s ruling means that the High Court will now be the first and final court to rule on that question.
What is the challenge about? Continue reading
In a joint press release, the Prime Minister, Employment Minister and Attorney-General today made their expected announcement of a new royal commission into trade union governance and corruption. The announcement revealed the new commissioner:
The Government will also recommend that The Honourable John Dyson Heydon AC QC be appointed as Commissioner to lead this inquiry. A former High Court Judge, His Honour has a distinguished legal career and I am pleased to confirm his willingness to accept this appointment.
Dyson Heydon is the most recent judge to leave the High Court, reaching the constitutionally mandated retirement age of 70 on 1 March last year.
In some respects, the role will be a familiar one for Mr Heydon. Continue reading
I noted in December last year that the issue of bank fees was back before Gordon J in the Federal Court. Today, Gordon J has handed down her decision in Paciocco v Australian and New Zealand Banking Group Limited  FCA 52. Her original decision on the matter, Andrews v Australian and New Zealand Banking Group  FCA 1376, was appealed to to the High Court in Andrews v Australia and New Zealand Banking Group Limited  HCA 30. The case was remitted back to Gordon J. Somewhat confusingly, Paciocco is another representative plaintiff but the action is still the same. Interestingly, the outcome of Paciocco is very similar to the trial decision in Andrews. In the trial decision in Andrews, Gordon J held that only late payment fees were illegal penalties, whereas honour fees, dishonour fees, overlimit fees and non-payment fees were not illegal penalties. Despite the High Court’s extension of the doctrine of penalties in 2012, the outcome of Paciocco was identical: only late payment fees were penalties. This must be a relief to the bank and to other commercial entities, but a disappointment to the consumers. Continue reading
Professor Graeme Orr at the University of Queensland recently published ‘In Whose Interest? The High Court and the WA Senate Vote’ on The Conversation, covering Australian Electoral Commission v Johnston. Orr’s piece is an incisive and clear explanation of what is a fairly convoluted case, and is very much worth a read. Orr also notes that a decision from Justice Hayne is expected to be handed down today, with two likely results: either Justice Hayne will declare the election void, or the case will continue, ‘with further legal argument and the parties scrapping over disputed ballots in the coming weeks or months’. As of posting, no media organisations have reported on the decision, but we’ll post links to news stories in the comments section when they do.
The Supreme Court of Canada, that country’s equivalent to Australia’s High Court, held a hearing this week on the interpretation of its own constituting statute, the Supreme Court Act. Or, to be more precise, some of its judges held that hearing. One of its judges, Nadon J, who was sworn in to the national court last October, did not sit – and, indeed, has never sat – because it is the legality of his appointment that his remaining colleagues must determine. One newspaper has likened the hearing to a tribal council on television’s Survivor.
The legal issue for decision is the statutory qualifications for appointment to the national court. Continue reading
I recently had cause to consult the new ninth edition of ICF Spry’s Equitable Remedies, a tome which I have found very helpful and learned on the topics of specific performance and injunctions in particular. After finding what I needed, I idly browsed through the Preface, as I have difficulty writing Prefaces and I like to see how other authors manage it. However, I do not think I will be taking my Preface-writing tips from Dr Spry. At xi – xii, he criticises the High Court and certain of its judges.
His observations appear to be coloured by the High Court’s decision in Kennon v Spry  HCA 56, where it was decided that Dr Spry would have to pay his ex-wife $2.2 million, and that trust assets were part of the matrimonial property. Indeed, when talking of “eccentric judgments” by the High Court, in footnote 3 on page xi, Dr Spry refers to a judgment of Justice Strickland made in 2005 where he held ‘obviously incorrectly, both that a multilateral release under seal is able to be disregarded unilaterally by the releasor and, moreover, that assets controlled by the releasor in his fiduciary capacity as trustee are to be treated as his personal property.’ Although he does not note it, this was the first instance judgment made in relation to Dr Spry’s family trust which the High Court later upheld. Notoriously, Dr Spry wrote a series of letters to the High Court protesting the decision, letters which he acknowledged had been widely read in the legal profession. Continue reading
In its final scheduled sitting day for the year, the High Court granted a modest three applications for special leave to appeal lower court decisions involving the dismissal of a senior bank manager, the wrongful disclosure of a compelled examination and a lover’s promise about a burnt-down cottage: Continue reading
Today’s High Court announcements on same-sex marriage, immigration detention and consumer law were doubtless disappointments for some. However, the one body that may be especially disappointed is the Court itself. The Canberra Times reports:
The court handed down its findings in the landmark case about 12.15pm, although a statement announcing the decision was accidentally published on the court’s website about 20 minutes earlier.
While French CJ’s announcement in Courtroom 2, reportedly greeted by silence and sobs, was anticipated by many legal observers, others knew exactly what the Chief Justice would announce. Continue reading
You are cordially invited…:
Please be advised that the High Court will deliver the following judgments in the next week:
Thursday, 12 December 2013 at 12:15 pm in Court No.2 Parkes Place, Canberra
Plaintiff M76/2013 v Minister for Immigration Multicultural Affairs and Citizenship & Ors(M76/2013)
Australian Competition and Consumer Commission v TPG Internet Pty Ltd(M98/2013)
The Commonwealth of Australia v. The Australian Capital Territory(C13/2013)
The third case is the same-sex marriage case. This announcement (from the High Court’s Judgment Delivery Notification alert service) confirms the ‘hopes’ that French CJ expressed at the end of Tuesday’s hearings. Barring an unlikely retraction, the validity of the ACT’s marriage law will be known on December 12. Indeed, it will be known not too long after 12.15pm that day. The announcement also reveals two further details: the venue and who else is in the order of ceremonies. Continue reading
Yesterday’s hearing in the same-sex marriage case concluded with the following words (at 4:40:15 on the video) from French CJ:
The Court will reserve its decision. The Court hopes to be in a position to announce a decision on 12 December.
The first sentence means that the Court will not decide the case right away. That is typical in final hearings, although there are exceptions (see here and here.) However, the second sentence is not at all typical. In most cases, no indication is given and the judgment comes when it comes. For example, there was no indication at the May hearing that today’s decision on patents would be the Court’s slowest judgment this year. The Court makes exceptions, though, if knowledge of the timing of the judgment would make a significant difference to someone. For example, at the conclusion of the 2010 hearings on the validity of laws on electoral enrolments, French CJ announced that he hoped that the Court would be in a position to announce a decision the next day, presumably saving the Commonwealth Electoral Commission a lot of money in planning for the contingency of a judgment of invalidity after the rolls had closed.
It is easy to see why the High Court announced a (tentative (UPDATE: see second comment below)) date for judgment in Cth v ACT. As has been widely reported, the announcement immediately resolved whether or not this weekend’s planned weddings in the national capital can go ahead (subject to the distant possibility of a speedier Court decision or the less distant possibility of a Commonwealth application for an injunction.) However, the particular date the Court set is a genuine surprise Continue reading
Today was to be the first of two days of hearings of Commonwealth v ACT, the High Court’s first foray into the issue of same-sex marriage. The dispute has been the subject of a number of excellent media pieces explaining the legal issues, most recently a preview on The Conversation by Sydney Law School’s Professor Anne Twomey, including a link to a paper she presented last week on the key statutory provision in the dispute, s. 28 of the ACT (Self-Government) Act 1988. This blog’s case page provides links to coverage of the case on Opinions on High, the transcripts of hearings to date, the Commonwealth’s writ of summons and the High Court’ s own archive of orders and written submissions. Following a recent innovation, the Court will post videos of the hearings on its webpage.
The breaking news today is that the Court has reportedly reserved its judgment after just a single day. While we wait for the transcript of the proceedings, the other news at this stage is about who is involved in the hearing and who isn’t: who is on the bench? who is at the bar? and who is absent? Continue reading
On 11 September 2013, leave to appeal was granted in The Go Star v Daebo International Shipping Co Ltd, as noted on our case page. The case involved the charter of a ship, and an allegation that the new charterer had committed the tort of procuring a breach of contract. The appeal to the High Court sought to ascertain what was the lex loci delicti (in other words, the law of the place where the tort was committed). The appellants sought to argue that the relevant law was Chinese law.
However, the High Court has just revoked special leave to appeal on the basis that the case ‘was not a suitable vehicle’ to determine what the lex loci delicti was for the tort of procuring breach of contract. Continue reading
The High Court challenge to the ACT’s Marriage Equality (Same Sex) Act 2013 will be heard next week, beginning on Tuesday 3 December 2013. In advance of the hearing the High Court has published on its website the written submissions of the Commonwealth (the plaintiff) and the ACT (the defendant). Also included on the High Court’s website is a written submission prepared on behalf of the group Australian Marriage Equality Inc. Australian Marriage Equality has applied to be heard as an amicus curiae. Continue reading
High Court watchers sometimes speculate that the judges’ willingness to grant special leave varies inversely with their current level of business. Friday’s application hearings show no support at all for that theory.
Having just heard a complex challenge to NSW campaign funding laws and with closely watched expedited hearings on marriage equality and the WA Senate results in the pipeline, the Court granted eight applications for special leave – the highest number in a single day since September 2011 – from the following (highly complex) cases: Continue reading
There was a moment of relative drama at the start of Tuesday’s full court hearing of the challenge by various unions to NSW campaign financing laws. Neil Williams SC, counsel for the Commonwealth (intervening, along with several other states, in support of the NSW laws) told the Court that he needed to draw attention to information that he had just learnt: that a judge of the Court had written an advice that touched on the validity if the NSW law.
The Court adjourned ‘briefly’ to let the parties discuss the issues, but more than that appears to have happened. Continue reading
Monday’s second directions hearing in Cth v ACT fixed a firm date for the full court hearing: 3 and 4 December. That puts the hearing — and perhaps the Court’s orders — ahead of any possible marriages under the yet-to-commence new law’s one-month notice period.
Chief Justice French also settled eight questions for the Court to resolve. Unfortunately, the transcript only reveals the final two, concerning the Court’s ultimate orders and who pays the costs. The rest are contained in an unpublished amended statement of claim lodged by the Commonwealth on 28 October.
Nevertheless, the transcript did reveal two things that won’t be at issue in early December: Continue reading
Last Friday saw the first ‘directions hearing’ in the Commonwealth’s High Court challenge to the ACT’s recently enacted marriage equality law. While the media focused on French CJ’s indication that the final court hearing — not, as some media suggested, the judgment — may occur in early December, the directions hearing also revealed that the Court may need to resolve some disputes about the role of Australian law in giving effect to the social institution of marriage.
The Commonwealth’s attack on the ACT marriage law centres on its argument that one object of the federal Marriage Act is to ‘address’ a ‘public interest’ in the ‘uniformity of marriage law throughout Australia’. In its statement of claim, it offered six propositions in support of that argument: Continue reading
In all the excitement within segments of the community over the passage of the ACT’s Marriage Equality (Same Sex) Act 2013 (ACT) there has been little critical consideration of the implications of the final changes made to the Bill that were introduced purportedly in order to further protect the laws against a High Court challenge by the Commonwealth government. The implications of those changes will be brought into view when the High Court decides whether to grant leave to appeal Norrie’s case (reported about here) on 8 November 2013. Continue reading
Several media outlets have reported this morning that the Commonwealth yesterday lodged its writ of summons to challenge the validity of the Marriage Equality (Same Sex) Act 2013 (ACT) (ACT Marriage Act), which was passed by the ACT Parliament on Tuesday. The Act as passed is not yet available on the ACT Legislation Registry, but the text of the Bill as originally introduced can be accessed here). The full text of the writ and the Commonwealth’s submissions and related documents for the first directions hearing — which is reportedly scheduled for tomorrow — can be accessed here.
The Commonwealth seeks a declaration by the High Court that the ACT Marriage Act is invalid or, in the alternative, is void. At the first directions hearing, the Commonwealth will submit that the matter should not be remitted to a lower court on the basis that it is a matter of public importance. At a later directions hearing, the Commonwealth will seek a hearing before the Full Court at the earliest possible date. Continue reading
In the wake of the High Court’s video debut last week, Chief Justice Warren of the Supreme Court of Victoria delivered the Redmond Barry Lecture earlier this week, and spoke about a concern that justice is not as transparent and open because of the decline of traditional print media and specialist court reporting. Accordingly, she said that the court would engage with the public through a number of alternative media. The Supreme Court already has a Twitter feed, and has started streaming sentencing remarks. It is also looking to stream criminal trials.
Most interestingly, the court plans to have a blog written by a retired judge ‘to create greater community understanding around controversial issues.’ Continue reading
Last week saw the introduction and speedy passing of some extraordinary Bills in the Queensland parliament. A trio of laws targeting criminal associations follow a widely reported brawl between two bikie gangs outside a Broadbeach restaurant in late September, while a further law targeting sex offenders comes as the Attorney-General appeals against a ruling that same day permitting the release into the community of Robert Fardon, the first man detained as a dangerous sex offender following the expiry of his sentence. Foreshadowing the new bikie gang laws last week, Premier Campbell Newman reportedly told the media:
“We know that some of these things will be challenged… We know that some may be overturned. It doesn’t matter. We are going to continue to try again. There are many mechanisms that we are going to use.”
Indeed, High Court judgments both past and future loom over each law. Continue reading
A month ago, the High Court announced that it would enter the video-publishing business, uploading videos of its Canberra hearings (other than special leave hearings) to its website. On Monday, the Court uploaded its first four videos to a new ’recent AV recordings‘ entry under its webpage‘s ‘cases’ menu. The Court’s prediction that the recordings’ availability would be ‘initially likely to be a few business days after hearings’ was too ambitious; it took eight business days for video for the first eligible hearing (BCM v R, including the bonus issuing of judgments in Bugmy and Munda) to be uploaded. However, the most recent hearing of the session (Karpany v Dietman) took just three business days, confirming its prediction that ‘[t]his delay is likely to be reduced as Court experience grows.’
At hearings in Sydney and Canberra today, the High Court granted special leave to four new cases (in contrast to six new cases at each its previous two sessions.) Two of the cases – both particularly interesting ones, in my view – are appeals from the Northern Territory Supreme Court. It’s been over three-and-a-half years since the High Court last granted leave to a Northern Territory case. The Court typically averages a little under one case a year from that jurisdiction.
The four special leave grants are for appeals from the following decisions: Continue reading
The High Court today released its highly-anticipated judgment in Bugmy v The Queen, HCA 37, previewed here, examining the so-called Fernando principles concerning the sentencing of indigenous Australians. The defendant, William David Bugmy, succeeded in his appeal. However, as is often the case with High Court judgments, the true significance of the case is harder to parse.The Court didn’t restore Bugmy’s original (lower) sentence, but rather told the NSW Court of Criminal Appeal to reconsider the Crown’s criticism of that sentence afresh. More importantly, the Court rejected both the Court of Criminal Appeal’s interpretation of the Fernando principles and a number of suggested refinements of those principles proposed by Bugmy.
The case has generated interest online, captured in discussions on social media. Immediate reactions on Twitter fell into two camps. Continue reading
Over the weekend ABC’s Landline broadcast a story about the circumstances leading to the closure of a rural Victorian abattoir, in particular the role of the State authority PrimeSafe and the economic harm caused by the closure to small agribusinesses in the surrounding district. The premise for closing the abattoir was that animals were being treated cruelly. However, cruelty was never proven against the business. I was asked to offer a view about the potential causes of action that the Giles family that owned the abattoir might have against PrimeSafe to recover losses arising from their lost business.
I note (at about 40 minutes) that there are two possible causes of action available to the owners of the abattoir business: negligence and public misfeasance. Continue reading
The ACT government has introduced a bill into the ACT Legislative Assembly that proposes to create a new species of marriage in Australia. Almost instantly the prospect of the federal government taking action to overturn the law once it comes into effect was the subject of news attention. The constitutionally-minded turned their attention to the possibility and prospects of the High Court being called upon to determine the validity of this new form of marriage. See comments by Professor George Williams (also here) and Crispin Hull. We have previously noted that the ACT’s proposed laws depends on advice received from High Court Justice Gageler before he took on his current role. Continue reading
As noted earlier this week, settlement was in the wings for the Bell Group litigation. Yesterday afternoon, the case settled. The extended nature of the litigation led a variety of former judges to query whether civil litigation needs to be reformed.
Meanwhile, those of us who hoped that the Full Court of Western Australia’s decision would be clarified will have to wait for another case.
The High Court recently granted leave to appeal on the Bell Group case, which, as the case page notes, is part of the infamous, long-running Bell litigation, involving twenty applicant banks and thirty respondent companies and liquidators. There have been rumours of settlement since July, and recent reports suggest that the case has been adjourned for six months and withdrawn from the High Court list in preparation for a settlement. If settlement occurs, this may be good news for Western Australians, as the litigation has been funded by the WA State Government-owned Insurance Commission of Western Australia (ICWA). Western Australian motorists had to pay an annual levy of $50 on third party insurance from 1993 to 1996 to assist ICWA, known as the WA Inc levy. Continue reading
In a media release today, the High Court announced that it will make audio-visual recordings of hearings held in its Canberra building available on its website from 1 October 2013, supplementing written transcripts of the Court’s hearings that have been published on Austlii since 1994. The videos will be made available a few days after the hearing (to allow for confidential information, such as the suppressed names of witnesses, to be edited out), but the release observes that the delay is likely to reduce as experience with the procedure increases. The new policy applies to ‘all Full Court hearings in Canberra, other than Applications for Special Leave’.
The release notes that ‘[t]he Court’s decision to take these steps was made having regard to the nature of its jurisdiction and is not intended to set any precedent for other courts’. However, it does partially follow precedents set in other top national courts. Continue reading
The High Court spent three days in the past week (including two in Perth) sorting through applications to bring appeals before it. The Court turned down some high profile cases (including The Age’s battle to resist revealing its sources for its reporting on MP Joel Fitzgibbon and businesswoman Helen Liu and Hancock Prospecting’s attempt to retain a stake in a Pilbara iron ore venture), while agreeing to hear appeals from six judgments: Continue reading
One must wonder whether sometimes actions in passing off or trademark infringement are used in an oppressive way. A group of English parents whose children attended a school called Belleville Primary set up a micro-brewery called Belleville which produces Belleville pale ale. They now face legal action from US drinks manufacturer Anheuser-Busch, the makers of Budweiser. Anheuser-Busch claims that there is a chance that Belleville pale ale may be confused with its product, Belle-Vue, a fruit flavoured beer. Continue reading
The 2001 federal election was shaped by the maritime rescue of 438 people by a cargo vessel, the MV Tampa. When the ship’s captain, Arne Rinnan, attempted to take the rescuees to Christmas Island, the Howard government responded by closing the port, an action whose validity under domestic law was upheld by the Full Court of the Federal Court (including then Justice Robert French).
This week, two aspects of the Tampa affair’s aftermath reached the High Court. Continue reading
Yesterday, the highly publicised ‘Skype scandal’ within the Australian Defence Force Academy yielded a guilty verdict against two cadets accused of broadcasting otherwise consensual sex on Skype without the knowledge of one of the participants. However, a rare split High Court decision on a constitutional point from earlier this year — Monis v Queen; Droudis v Queen  HCA 4 — discussed by Professor Adrienne Stone on this blog in April, looms over part of the verdict. Continue reading
Next week is the final week of the 2013 federal election campaign. It has been a campaign where immigration issues have been prominent despite the Rudd government attempting to neutralise the politics of irregular migration by entering into the highly publicised arrangement with Papua New Guinea for that country to detain asylum seekers and settle refugees who arrive in Australia by sea. While other matters of policy and electioneering might occupy news bulletins next week, irregular migration and refugee laws will be front and centre before the High Court. Continue reading
A former High Court judge, Ian Callinan QC, is currently playing a central role in an issue of intense political controversy in Victoria: the state parole board’s failure to revoke the parole of Adrian Bayley in the period leading up to his murder of Jill Meagher. His review of the board’s operation is widely quoted in today’s press prior to its formal release. Continue reading
In hearings in Melbourne and Sydney today, the High Court agreed to hear six new cases. The six cases are appeals from the following judgments: Continue reading
Today, the High Court will hear an application from Robert Farquharson, who was convicted in 2010 of murdering his three children by deliberately driving into a dam near Winchelsea, Victoria on Fathers’ Day 2005. The events at that dam continue to be of great interest to many Australians, but that is not a typical reason for a criminal defendant to get a full hearing before the national court. Continue reading
By Professor Miranda Stewart
The electoral roll closes by 8pm today, Monday 12 August 2013, seven days after the election writs were issued. If you have not registered by this time, you will not be eligible to vote in the forthcoming election on 7 September.
It seems appropriate to commemorate today the victory in Rowe’s Case  HCA 46 in which the High Court struck down as unconstitutional, a law by which the electoral roll was closed on the day of issue of the electoral writ (usually, the day that the election is announced). The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), passed under the Howard government, had amended the Electoral Act 1918 (Cth), resulting in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details. Previously, the electoral roll remained open for a period of seven days after the issue of the writ.
The victory reinstated the previous deadline for closure of the roll, and the High Court heard the case urgently and issued its decision within a record time, to enable an estimated 100,000 voters who were not on the roll, including many young people voting for the first time, to register to vote in the 2010 election. The plaintiff, Shannen Rowe, had turned 18 just a month before the 2010 election was called by then-Prime Minister Julia Gillard. Of course, she had not been old enough to vote in any previous election. Continue reading
Yesterday, three judges of the High Court played an unusual role: hearing an appeal from a non-Australian court. The court in question is the Supreme Court of Nauru and the appeal was from the verdict of its Chief Justice (former Victorian judge The Hon Geoffrey Eames AM QC) that a husband and wife were guilty of raping the wife’s niece. Continue reading
Tomorrow we will learn of the High Court’s decision on the challenge by Fortescue Metals and others to the Commonwealth’s mining tax legislation – the Minerals Resource Rent Tax Act 2012 (Cth). The court heard that case in March this year. Professor Michael Crommelin from Melbourne Law School will be writing about the Fortescue case for Opinions on High. Continue reading
Today the High Court announced that it would be delivering its judgments in Fortescue Metals Group Ltd v Commonwealth and Akiba v Commonwealth next Wednesday morning (7 August). These two long-awaited cases were heard by the Full Court in March and February respectively. Continue reading
Same sex marriage has appeared again in the news recently. However, this time with a decidedly constitutional bent. The NSW Standing Committee on Social Issues tabled its report on a possible same-sex marriage law in New South Wales on 26 July 2013. Continue reading
Michelle Foster from Melbourne Law School recently appeared on ABC’s Q & A where the legality of Labor’s Papua New Guinea Asylum Seeker resettlement plan was discussed. Continue reading