News: Slow start to special leave grants in 2016

The Court today held its first special leave hearings for 2016, in its Sydney and Canberra registries. All the Sydney applications were rejected, while in Canberra, the Court granted special leave in just one matter and also referred a pair of appeals to the full court [EDIT: connected to a matter granted special leave in November]. Matters where leave was refused include two further pre-trial challenges by alleged foreign incursion promoter, Hamid Alqudsi, and a high profile appeal by a farmer who lost his organic certification when genetically modified crops grown by his neighbour contaminated his land.

The lower court decisions to be considered by the Court are: Continue reading

News: Quick end to Alqudsi’s challenge to mandatory jury trials

Yesterday’s new decision on civil procedure and insurers is not the only significant ruling of the High Court this week. Wednesday’s day-long hearing of a pre-trial application by accused promoter of foreign incursions, Hamdi Alqudsi, ended with the following statement by French CJ:

At least a majority of the Court is of the opinion that the following order should be made:
1. The question “Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant’s trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution”, should be answered “Yes”.
2. The motion is dismissed.
The reasons of the Court will be published at a later date.

The effect of these orders is that Alqudsi’s trial will be by a jury of his peers, rather than by judge alone as he preferred. The orders also strongly suggest a rejection by a majority of the High Court of an effort by Alqudsi, broadly supported by the Commonwealth and four states, to overturn or limit a thirty-year old 3-2 ruling by the High Court that effectively gave prosecutors, but not courts or defendants, the power to opt for a judge-alone trial of serious federal crimes.The Court’s majority holding in 1986’s Brown, although certainly a plausible reading of the bare text of s80 of the Constitution, is reviled by many as a perversion of one of the Constitution’s few apparent protections of human rights. However, we won’t know quite what the Court has said about s80 until the Court’s reasons emerge in next month or so.

Of more immediate interest is why the High Court opted to make its orders immediately Continue reading

News: Bell Group – the litigation that just won’t die

In September 2013, I reported that long-running and complex Bell Group litigation had settled immediately before an appeal to the High Court was to be heard. The litigation began in 1995, and related to loans given to Alan Bond’s Bell Group of companies. However, it seems that the litigation just won’t die.

As I noted just before settlement, the question of how the settlement sum was to be distributed was potentially controversial. The litigation had 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. That promise of controversy has now been realised. Continue reading

News: Summarising High Court judgments

Wednesday saw the High Court’s first decision of 2016, concerning one of the most controversial issues in Australia: offshore immigration detention. The judgment is a blockbuster, consisting of five judgments and over 42000 words (not including the 339 footnotes), answering (or declining to answer) a special case consisting of fourteen multi-part questions. As is the Court’s practice since late 2002, the judgment was accompanied (and, online, preceded) by a one-page judgment summary, describing the proceedings and, in a single paragraph, its outcome:

The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by s 198AHA of the Act, which is a valid law of the Commonwealth.

It is likely that this summary was responsible for speedy and accurate media reports that the challenge to the ‘Nauru solution’ had failed, in turn prompting fresh political debate about whether the federal parliament or executive should maintain or end the regime, and specifically the fate of 267 asylum seekers slated to return to Nauru.

However, as The Guardian observed on Wednesday evening, ‘High court decisions are not football matches: it’s not always clear who has won and by how much.’ Continue reading

News: High Court circuit hearings reduced by budget cuts?

As the Canberra Times reports, the High Court has just released its Annual Report for 2014 – 2015, which contains an alarming warning about circuit hearings around the country in light of budget cuts imposed by government imposed ‘efficiency dividends’. In French CJ’s Overview, he says at page 16:

In the 2014-2015 year, income received by the High Court including from its principal source, namely parliamentary appropriations, was $16.336 million. Operating expenses including unfunded depreciation charges of $4.802 million amounted to a total of $21.167 million. The underlying deficit after taking out unfunded depreciation allowances was $29,334.

The High Court has a small administration. Its total staff comprises (not including Justices) 99 persons. Thirty-seven are full-time and part-time ongoing staff, 36 are full-time and part-time non-ongoing staff and 26 are casual staff. The Court operates nationally with extended logistical requirements and large fixed costs. Its level of funding is low compared with the Parliament and many parts of the Executive Government. Historically its appropriated revenues have not kept pace with unavoidable cost increases particularly in building related expenditure. Many of the Court’s administrative costs are fixed, for example, statutory charges for electricity to operate the building. Government imposed efficiency dividends affect core elements of the Court’s operations such as Registry and Library staffing. The Court has undertaken comprehensive reviews of its Registry and administrative processes and structures since 2008. The position continues to be that there is no material scope to reduce the Court’s administrative costs without cutting significant elements of its operations including circuit visits which it undertakes from time to time to Perth, Adelaide and Brisbane dependent upon the workload in those capitals.

[emphasis added]

It would not be positive if the High Court were no longer able to go on circuit to some capital cities (or, as the Canberra Times suggests, any other capital cities other than Canberra). The High Court is a court for all of Australia, and as such, it is important that it has a presence in all States and Territories of Australia.

Back in the days when I was a State judge’s associate, I became enraged by a government questionnaire which described the court as a “business unit.” Courts are not “business units”. They do not produce profits. While courts certainly should not waste money, and should have an efficient administration, it sounds like the High Court has already achieved this. Fundamentally, the High Court is an essential arm of government whose role it is to adjudicate disputes. What price justice?

News: Suppression applications in the High Court

A week ago, the High Court’s registry listed the following matter before Gageler J at 11am in the Court’s Sydney registry:

APPLICATION FOR NON-PUBLICATION
ORDERS
[NAME SUPPRESSED] v THE QUEEN

While it appears likely that this is a criminal law matter, no other information about it is public knowledge. Apart from insiders (and whoever else happened to be in the courtroom that day), no-one knows who the applicant is, who (or what) the non-Queen party was, what orders were already in place, what orders were sought, the grounds for the application, the arguments made, what orders (if any) were made and the reasons for Gageler J’s decision (if any.) In these respects, the High Court is similar to other Australian courts, where such opaque listings are commonplace. Thanks to its practice of publishing transcripts of its hearings online for free, the High Court is usually much more open than other Australian courts.  However, no transcript of any hearing from last Wednesday has been published.

However, transcripts from a different matter a week earlier are more illuminating. Continue reading

News: Baden-Clay’s resentencing delayed until High Court hearing

One of the most closely watched High Court matters of 2016 is an application to appeal a Queensland Court of Appeal decision from December, concerning a high profile domestic homicide. In R v Baden-Clay [2015] QCA 265, the Queensland court (including the state’s new Chief Justice Catherine Holmes) rejected the Brisbane real estate agent’s complaints about the conduct of his homicide trial, but accepted his argument that the jury’s verdict of murder was unreasonable:

[T]here remained in this case a reasonable hypothesis consistent with innocence of murder: that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict…

In consequence, the appeal against conviction must be allowed, the verdict of guilty of murder set aside and a verdict of manslaughter substituted. Counsel for the respondent should file and serve submissions as to sentence by 15 January 2016, with the submissions for the appellant to be filed and served by 22 January 2016.

Last week, Holmes CJ revisited the final sentence of that judgment on the application of Queensland’s DPP. In doing so, she addressed when a lower court should (and shouldn’t) change course in response to a planned High Court appeal. Continue reading

News: Counting High Court judgments

Today, the High Court issued its final judgment for 2015, number 53 in the media neutral citation list, one more than last year. Looking back over the Court’s judgments published on Austlii, these numbers are amongst the Court’s lowest. Out of the Court’s 113 years, there have been only fifteen with fewer than 53 (media neutral citation) judgments: 1903 (3), 1926 (52), 1928 (51), 1929 (46), 1930 (52), 1939 (41), 1940 (46), 1941 (43), 1942 (40), 1943 (50), 1944 (42), 1948 (50), 1983 (47), 2010 (49) and 2014 (52). The majority of these have ready explanations  – the Court’s truncated first year and the depression and war years – that the more recent years lack.

But such raw counts can easily mislead, as not all published judgments are equal. Continue reading

News: Four more cases get special leave

In sittings today in Melbourne and Sydney, the High Court held its final special leave hearings for 2015, allowing appeals from the following four cases to proceed to the national apex court:

  • Betts v R [2015] NSWCCA 39, a sentencing appeal concerning an horrific instance of domestic violence, where Betts stabbed his former partner repeatedly over a lengthy period when she arrived at their flat to remove her belongings, intending that both would die together. The NSW Court of Criminal Appeal rejected Betts’s arguments that his offence was not aggravated by the extent of his partner’s injuries and was mitigated by his own extensive deliberate self-injuries (including injuries caused by his partner with his consent), but accepted his arguments that the trial judge wrongly aggravated his sentence because of his partner’s vulnerability and wrongly failed to mitigate his head sentence due to prison being especially onerous for him given his permanent self-injuries. However, the Court nevertheless let his sixteen-year sentence stand given the seriousness of his offending.
  • Cosmopolitan Hotel (Vic) v Crown Melbourne Limited [2014] VSCA 353, concerning a refusal by Crown to renew two leases at its Southbank Entertainment precinct, despite the tenant having been required to extensively renovate the premises in order to obtain an earlier renewal of the lease. The Victorian Civil and Administrative Tribunal had found that a statement by Crown employees that it would ‘look after’ the tenants at the next renewal if the renovations were high quality was enforceable as a collateral contract. Victoria’s Court of Appeal held that a Supreme Court judge rightly overturned this finding on the basis that the the statement was not intended to be a promise and was too vague to enforce, but nevertheless remitted the case to the Tribunal to determine what remedy (short of renewing the lease or compensating the tenants for all the profits they might have made) Crown should give the tenants for breaking its promise to look after them.
  • Deal v Kodakkathanath [2015] VSCA 191, an appeal against the failure of a compensation claim by a primary school teacher for injuries to her knee that she sustained when she fell off a small step-ladder while removing unwieldy paper artworks from a wall. The majority held that, although the trial judge’s rejection of her claim that the school breached an occupational health and safety regulation concerning ‘hazardous manual handling tasks’ was premature, inadequately explained and involved some misreadings of the statute, it was nevertheless correct because that regulation did not cover injuries caused by falls.
  • R v Nguyen [2013] NSWCCA 195, an appeal concerning what were described as ‘unusual, even unique, factual circumstances’ presenting ‘a challenging sentencing exercise’ – the fatal shooting of one plain clothes police officer by another in response to a shot fired by Nguyen in excessive self-defence. The NSW Court of Criminal Appeal held that the trial judge was wrong to find that Nguyen’s offending was mitigated by his mistaken belief that the cops (who were executing a search warrant) were robbers, as that fact was already implicit in Nguyen’s conviction for manslaughter (rather than murder), and also that the trial judge was wrong to give Nguyen wholly concurrent sentences for the shot he personally fired (which wounded the police officer’s arm) and the shot the other police office fired (which killed the police officer), as each involved distinct consequences and criminality. Describing his offence as ‘a most serious example of the crime of manslaughter’ and noting the need to deter crimes against the police, the appeal court raised Nguyen’s total sentence from nine years and six months to sixteen years and two months.

News: Ken Parish on the tragedies surrounding Melbourne v R [1999] HCA 32

Legal academic Ken Parish has a post at Club Troppo marking the death of Roy Melbourne, the defendant in a 1999 High Court criminal appeal. The post is an especially poignant one, because Melbourne was convicted of murdering Parish’s mother-in-law, who was minding Parish’s daughter while they shopped for her seventh birthday present.

Parish’s post is a profound insight into the impact of High Court appeals (amongst other things) on people affected by tragedy. Parish recounts:

When the jury’s guilty verdict was delivered I was surprised to find myself sobbing uncontrollably, not through sorrow but relief that this part of our ordeal was over and we could get on with grieving and putting our lives back together. However I was wrong about that last part. Melbourne appealed unsuccessfully to the Court of Appeal and then again to the High Court. Special leave was granted but the substantive appeal failed, although only by a margin of 3:2. The legal ordeal lasted until August 1999.

And he also notes that the description of Melbourne’s crime by McHugh J (and also Callinan J) in the High Court appeal understated the horror of the event, including the fact that it took place in the presence of Parish’s daughter. These awful details stand in sharp contrast to the somewhat dry issue that was debated in the High Court: whether the jury should have been directed that Melbourne’s clean record for the 60-odd years prior to his crime (apart from a drink-driving conviction) was relevant to determining whether or not to believe his statements immediately after the killing, including not recalling the killing, believing that Parish’s mother-in-law was harassing him with late-night noises (actually a defective sprinkler system) and his medical history. A majority of the Court held that the direction was not needed, with Kirby J and Callinan J dissenting.

The most moving part of Parish’s post is his own response to Melbourne’s death, two weeks after he voluntarily returned to prison from parole:

This morning I received a phone call from a detective from the Major Crime Squad. Melbourne was found dead in his cell last night. The detective was careful in what he said, but it sounds like he committed suicide. After a few moments of shocked silence I thanked him and remarked that I almost felt sorry for him, though not quite. But I do feel sorry and so does Jenny Parish. What a dreadful tragedy from beginning to end, for everyone involved including a lonely embittered old man named Roy Melbourne. I’ve been sobbing again today, not out of relief this time but from grief for all that has been lost.

In a comment, Parish adds that Melbourne’s death reportedly followed his return from work release after a law and order controversy in the Northern Territory, which Parish had criticised in an earlier post.

News: Predictable special leave outcomes

Predicting which cases will get special leave to the High Court is generally difficult. Last month, two Victorian judges refused an injunction to preserve the subject-matter of a case that was the subject of a special leave application, stating that ‘we are not persuaded that the application for special leave enjoys sufficient prospects of success to warrant a stay’. The High Court granted special leave in that matter last Friday. But it is possible to make strong predictions during the hearing itself. For example, a clue came during the applicant’s argument that the case ‘is a matter of real importance’ when Keane J interrupted to say ‘I do not think you need to worry about how important it is.’ The applicant promptly stopped his argument, correctly predicting that special leave would be granted. This was confirmed when, at the conclusion of the respondent’s argument, French CJ said that ‘we need not trouble’ the applicant for a reply. An even clearer sign of success is when the High Court does not call on the applicant at all, for example in this matter in October.

More unusually, in two matters this month, a lawyer faced the prospect of arguing for a special leave result after the Court had already resolved the matter against his client. Continue reading

News: Six new administrative and criminal law cases

In sittings in Canberra and Sydney yesterday, the High Court granted special leave to appeal six decisions, consisting of two administrative law matters and four criminal law ones. As well, in the special leave hearing concerning R & M v IBAC, discussed here, French CJ continued the order Nettle J gave  suppressing the names of the two police officers who IBAC wants to publicly examine ‘until further order’, despite Nettle J’s earlier expressed ‘doubts as to whether publication of the name of either applicant at this stage of the proceeding would give rise to any real risk of prejudice to a fair trial, when and if they are ever charged with any offences arising out of the subject matter of the inquiry’.

The cases where the High Court will hear appeals (most likely early next year) are:

Continue reading

News: Special leave to appeal revoked in Fernando v Commonwealth

Fernando v Commonwealth purportedly raised the issue of what measure of damages were appropriate for a case of wrongful immigration detention where the plaintiff could have been lawfully detained in any event. However, the High Court has now revoked special leave on the basis that the appellant’s argument did not adequately raise that question.

Continue reading

News: Special leave granted on solicitor’s duty to will beneficiary

Yesterday, separate from the Court’s usual special leave schedule, the High Court granted special leave to appeal a ruling of the full court of the Supreme Court of Tasmania decided three months ago. (HT: Joel Townsend.) Having recently granted special leave in a NSW case to reconsider the scope and existence of advocates’ immunity from negligence suits in respect of their court work, the new Tasmanian grant raises the scope of solicitors’ liability in negligence for their non-court work, specifically their duty to the beneficiaries of wills they prepare.  Continue reading

News: Nettle J on open justice in Victoria

A procedural hearing on Tuesday hinted at Nettle J’s views on open justice in Victoria, an issue that has been recently debated in The Age. The matter concerns an effort by two police officers who are potentially facing criminal charges for misconduct to stop IBAC (Victoria’s anti-corruption commission) from publicly examining them about that misconduct. The pair’s argument, which rests on recent High Court decisions on whether Australian statutes allowing people to be compulsorily examined on matters that tend to incriminate them must give way to fundamental principles of accusatorial justice, failed in Victoria’s Court of Appeal late last month. The pair now wish to appeal to the High Court and Nettle J was asked to decide two urgent questions ahead of their application for special leave to appeal.

One issue was whether the pair could be named publicly ahead of the special leave application. Continue reading

News: Five new appeals, one an enigma

In hearings yesterday in Brisbane and Sydney, the High Court granted special leave in five new matters, including two Queensland judgments where Holmes JA (who recently replaced Carmody CJ as chief justice of Queensland) was the lone dissent. We know what four of the five judgments being appealed are broadly about:

  • Fischer v Nemeske Pty Ltd [2015] NSWCA 6, a dispute about a family trust, where minutes of a 1994 meeting of directors indicated a distribution of $4M of assets to two beneficiaries. Since then, both beneficiaries, their daughter and all but one of the directors have died, without any transfer of property. The NSW Court of Appeal unanimously held that the directors duly exercised their powers in 1994,that an oral resolution a month before accelerating the vesting day didn’t affect the distribution, that the distribution placed the trust in debt to the beneficiaries and that a 2004 directors’ declaration acknowledging the earlier events extended the period for enforcing the debt (which otherwise would have expired in 2007) so that the estate’s claim could proceed.
  • Murdoch v The Queen [2014] NTCCA 20, an appeal by a man convicted of sexually abusing his step-grandchild on three occasions. The Northern Territory Court of Criminal Appeal unanimously held that the trial judge properly admitted evidence from the complainant’s friend and relatives of the revelation of the abuse, that a direction to the jury that her revelations ‘were some evidence that an offence did occur’ was appropriate (despite their generality), and that the trial judge properly admitted her testimony about a later incident where the accused allegedly ran his hand up her leg during a massage as evidence of the accused’s sexual interest in her. The latter issue may finally draw the High Court into a dispute between the NSW and Victorian courts as to the meaning of the key terms ‘probative value’ and ‘significant probative value’ in Australia’s uniform evidence legislation.
  • Mekpine Pty Ltd v Moreton Bay Regional Council [2014] QCA 317, an action by a shopping centre tenant for compensation for land that the Council resumed for road improvements in 2008. When the lease was signed in 1999, it was over a lot unaffected by the later roadworks, but a redevelopment five years later combined that lot with another lot that was affected. While the trial judge and Holmes JA would have rejected the tenant’s claim, a majority of the Queensland Court of Appeal held that the amalgamation gave the tenant an interest in both lots and that, anyway, a statutory provision giving commercial tenants rights over ‘common areas’ meant that the tenant had a compensable interest in the area that was resumed.
  • McDermott & Ors v Robinson Helicopter Company Incorporated [2014] QCA 357, an action by a survivor of a fatal helicopter accident near the Queensland/Northern Territory border, alleging that the chopper’s maintenance manual gave inadequate instructions on how to check for loose bolts (the cause of the accident.) While the trial judge and Holmes JA held that the manual was adequate in requiring that a tape on key bolts be routinely visually inspected for signs of twisting, a majority of the Queensland Court of Appeal held that the manual should have recommended physically testing each bolt’s tightness with a spanner. (Presumably, the High Court’s interest in the case is not about the law of helicopter bolt maintenance manuals, but rather the appropriateness of an appeal court reversing a trial judge’s factual findings in a negligence case.)

The fifth judgment is an enigma for now. Continue reading

News: Court’s website now includes its judgments

In a seemingly unannounced change, which occurred somewhere between May and July this year, the High Court’s website now contains a database of its own judgments, consisting of all judgments since 2000, and also all ‘unreported’ judgments from 1924 to 2002. The site has its own (somewhat unfashionable) url –  http://eresources.hcourt.gov.au – and you can link to summaries and judgments via urls in this domain that incorporate the media neutral citation. The database is browsable and searchable, and provides copies of the judgments in .rtf and .pdf (but not html) format.  The website states that new judgments will be published ‘on the day they are delivered’, although presumably they will be up within the hour, as is typical on Austlii and Jade. For now, transcripts of the Court’s hearings are not available on the Court’s website.

This change brings Australia’s national court closer into line with the practice of comparable courts Continue reading

News: US anti-abortion activist fails in High Court bid to fight deportation

US anti-abortion activist Troy Newman has failed in his last minute High Court bid to challenge the revocation of his Australian visa. His visa was revoked days before he was due to tour Australia. Newman has espoused controversial views regarding abortion, suggesting in a co-authored book that persons who seek abortions and doctors who perform them should be executed for murder. Minister for Immigration Peter Dutton cancelled his visa pursuant to s 128 of the Migration Act 1958 (Cth). Section 128 allows the Minister to cancel a visa before the non-citizen holder enters Australia on the basis of the considerations set out in s 116. The relevant consideration in this case was s 116(e)(i): namely, that the presence of the visa holder in Australia might pose a risk to the health, safety or good order of the Australian community or a segment of the Australian community. Continue reading

News: Pfennig back in court

A long-running Adelaide mystery, the 1983 disappearance of 11 year-old Louise Bell, is currently being explored in a Supreme Court murder trial. The Advertiser reports a prosecutor’s description of an alleged conversation between prisoners at Mt Gambier Prison:

Pfennig started to talk about Michael Black, how he had murdered him,” she said. “He said he couldn’t tell anyone where Michael Black was ‘because there is a chick there’. “The other prisoner asked ‘what chick?’ and Pfennig replied ‘Bell’.”

If true, this amounts to an admission by Dieter Pfennig, not only to his responsibility for Bell’s death, but also to the correctness of a 1995 High Court ruling upholding Pfennig’s conviction for the murder of Black, who vanished near the Murray River in 1989. That judgment is arguably the Court’s most significant (and most controversial) ruling on evidence law. Continue reading

News: Prime Ministers who have appeared before the High Court

Malcolm Turnbull joins a select group: lawyers who have argued before Australia’s national court and then gone on to lead the nation. In 1988, the future Prime Minister capped his greatest success in his career as a barrister by successfully defending his lower court victories in the Spycatcher case in the High Court. The case famously concerned the UK government’s attempts to block the publication of a book by a former MI5 agent, Peter Wright. Having succeeded at trial in arguing that the book’s supposedly confidential contents was mostly already public overseas, Turnbull secured a majority ruling in the NSW Court of Appeal (consisting of two future High Court judges, Kirby P and McHugh JA) and then a unanimous victory in the High Court, which ruled that Australian courts applying the law of confidentiality ought not protect the security interests of an overseas government. Turnbull also succeeded as a junior barrister in an earlier case before the national court, when he defended Noel Chrichton-Browne in the Court of Disputed Returns.

A previous Prime Minister with a much more impressive record before the High Court is Robert Menzies, Australia’s longest serving leader. Continue reading

News: Bank fees action and three other cases granted special leave

Last Friday, the High Court granted special leave in four cases. One is especially newsworthy: the return of the long-running dispute about the validity of various bank fees to the High Court. As Katy Barnett outlines here,  the Court in 2012 held hat such fees are subject to the rule against contractual ‘penalties’ despite being expressed as contractual obligations, (rejecting a preliminary ruling by the trial judge in favour of the banks.)  This year, the Full Court of the Federal Court nevertheless ruled that none of the fees were penalties. As Katy Barnett predicted, that ruling will now be considered by the High Court. But not all of the Court: the trial judge (who wrongly ruled that the fees weren’t subject to the rule, but also held that late credit card payment fees were penalties) was Gordon J, who has since joined the national court. That almost certainly means that she won’t participate in the High Court’s new consideration of the case.

The other three cases granted special leave include one from the Tasmanian courts, ending a six year drought of Tasmanian cases in the national court. The three cases are: Continue reading

News: Dyson Heydon on the perceived email habits of High Court judges

In his decision yesterday rejecting an application to recuse himself from the Trade Union Royal Commission on the grounds of apprehended bias, Commissioner Dyson Heydon considered whether a reasonable bystander would think (contrary to Heydon’s own assertion) that Heydon would  read all of his email attachments (including one describing the nature of the function he had agreed to speak at.) The ACTU’s counsel, Robert Newlinds SC, argued:

People don’t get appointed to the High Court of Australia unless they are considered truly brilliant lawyers, and what the truly brilliant lawyers have over and above truly ordinary lawyers, they have that special ability to absorb incredibly quickly and distil facts, and an ability to retain facts so absorbed and distilled, so as to fit them into the wider picture of the particular legal problem at hand….  So, the reasonable hypothetical bystander is going to think you’ve read this email.

But the Commissioner countered that the reasonable bystander would have a quite different view of former High Court judges’ reading habits: Continue reading

News: Epilogue to the Beckett malicious prosecution case

In 2013, the High Court held that there was no requirement to prove innocence in malicious prosecution in the case of Beckett v New South Wales [2013] HCA 17. I wrote an opinion on the case here. Ms Beckett’s malicious prosecution case was then remitted back to the New South Wales Supreme Court for decision. Readers may be interested to hear that the New South Wales Supreme Court has now determined that case. Continue reading

News: Hon Ken Hayne to be commissioned for parliamentary inquiry into Victorian Auditor-General

Yesterday, both houses of Victoria’s parliament approved a motion to request that the Parliament’s Public Accounts and Estimates Committee ‘ inquire into and report no later than 20 October 2015 on allegations made against the Auditor-General, Mr John Doyle, in a formal grievance dated 12 August 2015, by a member of his staff’. Although the request does not detail the nature of those allegations, the Committee’s remit includes whether ‘the Parliament should give consideration to the removal of the Auditor-General from office’ under s. 94C(5) of Victoria’s Constitution. And, although also not detailed in the motion, it appears that the inquiry will be conducted by a very recently retired High Court judge (and current professorial fellow at Melbourne Law School.) Continue reading

News: Sitting in Memory of the Late Honourable John Leslie Toohey AC

The High Court holds ceremonial sittings to mark significant events: welcomes to judges, farewells to judges, appointments of Queen’s Counsel and Senior Counsel, first and final sittings of judges in particular cities, and final sittings in particular buildings. Such sittings are also held in memoriam for late judges.

On 10 August 2015, the High Court held a Sitting in Memory of the Late Honourable John Leslie Toohey AC in Perth. The transcript is now available here. The Court notes that Justice Toohey’s Western Australian predecessor, Sir Ronald Wilson, was similiarly honoured with a ceremonial sitting some ten years ago, at which Justice Toohey was present. A ceremonial sitting has also been held for the Late Honourable Sir Harry Gibbs in 2005. Presumably a ceremony will be held for Justice Jacobs, who also passed away this year.

Edelman J’s obituary for Justice Toohey was posted on the blog here.

News: Sir Anthony Mason mulls proportionality

Earlier this month Sir Anthony Mason presented the 21st annual lecture named in his honour at Melbourne Law School and hosted by the Law Students’ Society.

Sir Anthony offered a commentary on contemporary High Court jurisprudence on the relevance of the concept of proportionality in administrative and constitutional law. His focus was on the recent cases of Li, Monis, Unions NSW and Tajjour, which Sir Anthony presented as offering competing perspectives on the place and test for proportionality in Australian law. Sir Anthony did, however, reflect on some of the cases he was involved in from which he traced an historic attention to proportionality by the High Court. These cases included the bicentennial case, Davis v Commonwealth and the refillable bottle case, Castlemaine Tooheys.

Sir Anthony argued that Li represented “a more positive attitude to the use of proportionality” among this Court than past, and he seemingly endorsed the use of proportionality in judicial review to soften the extremely strict standard of Wednesbury unreasonableness.

On the constitutional law freedom of political communication cases of Monis, Unions NSW and Tajjour, Sir Anthony articulated three emergent approaches to proportionality. From Monis, he described Kiefel, Crennan and Bell JJ as grounding an extensive proportionality test (so called ‘structural proportionality’) from European developments. He also distilled competing limited proportionality tests by Gagelar J in Tajjour and by Keane J in the Unions NSW case that would reshape the Lange test for validity of laws that impede political communication if they were to be embraced by the court. As readers of the blog will know from the analysis of Professor Adrienne Stone, how the court resolves its grappling with proportionality might bring clarity to the extent and character of the Australian constitutional freedom of political communication.

A video recording of the lecture can be viewed online.

News: New Court cases include one touching on Triggs controversy

In today’s special leave hearings in Perth, the High Court granted special leave to appeal on two Western Australian matters. One of those – on a politically sensitive topic, damages for convicted criminals wrongly held in immigration detention – was relied on by Australian Human Rights Commission President Gillian Triggs to recommend $350,000 in damages for another immigration detainee and High Court litigant, John Basikbasik, resulting in attacks on her role and character earlier this year (as discussed here by Katy Barnett.)

The two matters where leave is granted are: Continue reading

News: Referendum on constitutional meaning of marriage

“The type of issue that could be canvassed under Section 51 of the constitution — simply at the moment, in Clause 21, it just says ‘marriage’,” Mr Morrison said. “You could equally put in there opposite- and same-sex marriage and clarify very clearly what the meaning of the constitution is on this question, and to reflect [what] some would argue has been a societal change since the constitution was first written.”

Mr Morrison acknowledged the High Court had already ruled on it. “Justices of the High Court have already expressed opinions on this issue, that’s fine, but what I am saying is I would prefer the Australian people decide this: not me, not [High Court Chief Justice Robert French], but the Australian people.”

Federal Minister for Social Services Scott Morrison here refers to Cth v ACT [2013] HCA 55, where six members of the Court said that ‘When used in s 51(xxi)’ of the Constitution, the federal Parliament’s power to make laws about marriage, ‘”marriage” is a term which includes a marriage between persons of the same sex.’ Attorney-General George Brandis later relied on the same case to declare that ‘No constitutional referendum is necessary in this case.’

Given the High Court’s 2013 holding, what would be the legal effect of the referendum? There are two possibilities to consider. Continue reading

News: Court takes a new appeal on advocates’ immunity

The High Court held another single location hearing of special leave applications last week in Sydney, ahead of a further day of hearings when the Court sits in Perth this week. Last Friday, the Court granted leave in just one case, while refusing leave in all others, including yet another matter addressing the Court’s trilogy of rulings on accusatorial justice, and a case addressing a major divergence between NSW and Victorian courts on the interpretation of the so-called ‘uniform evidence legislation’.

The judgment where leave to appeal has been granted is Jackson Lalic Lawyers Pty Limited v Attwells [2014] NSWCA 335, which concerns advocates’ immunity from negligence actions. Continue reading

News: Who would have standing to challenge the citizenship deprivation law?

The Parliamentary Joint Committee on Intelligence and Security is currently holding any inquiry into a Bill to deprive dual citizens of their Australian citizenship if they engage in particular sorts of conduct (including particular terrorist activities and foreign incursions and recruitment), defined by reference to offence provisions in the federal Criminal Code. In evidence before the Committee on Tuesday, Professor George Williams reportedly predicted a speedy High Court challenge to the Bill’s constitutionality:

UNSW professor George Williams told a Senate inquiry on Tuesday that it was the most “problematically drafted bill” he had ever seen, with more constitutional problems in it than any he had given evidence on. This included a law that allows ASIO to detain and question any Australian for up to a week and foreign fighter legislation aiming to restrain Australians returning from conflict zones in Syria and Iraq. Professor Williams had “no doubt” such a law would be challenged in the High Court and had already been approached by “prominent solicitors” who had clients facing charges that are included in the bill. “It’s such an obvious one to bring a challenge to; I don’t see why they wouldn’t to escape loss of their citizenship.”

But the High Court’s decision last year on Queensland’s bikie laws places a potential roadblock in the face of any such challenge: the requirement that the challenger have ‘standing’ to challenge the laws. Continue reading

News: Federal parliament axes the Court’s crime commission cases

The federal Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) comes into force today. At the Bill’s second reading speech in March, Minister for Justice Michael Keenan explained that the Bill responds to a set of recent court decisions on the powers of crime commissions (as discussed by Anna Dziedzic here, here and here.) In its X7 decision from 2013, a narrow majority of the High Court held that the Australian Crime Commission could not use its compulsory examination powers to examine a person charged with drug trafficking offences about those offences, while a later decision overturned drug convictions where the trial prosecutors had been illegally given access to transcripts of compelled examinations by the NSW Crime Commission. According to Keenan, the effect of these decisions have been felt well beyond the world of drug prosecutions: Continue reading

News: Two grants of special leave, one fast-tracked

On its traditional special leave hearing day this session, the High Court held hearings at only one of its registries (Sydney, but with video-links to Melbourne and Adelaide), instead of the usual two. Of the nine matters heard, none were criminal and only one was granted. Much more unusually, the Court yesterday granted special leave in another matter, without any oral hearing. Both new cases are interesting: Continue reading

News: AUSPUBLAW on Queesland v Congoo

Opinions on High welcomes auspulaw.org to the blogosphere:

AUSPUBLAW posts contributions from leading public law experts – including academics and practitioners – across Australia. The Blog seeks to promote greater engagement with public law issues and a national platform for informed debate about current issues in public law.

Because of the central role of Australia’s High Court in matters of public law, the subject-matter of the Australian Public Law blog, hosted by UNSW’s Gilbert and Tobin Centre for Public Law, overlaps with this blog, especially if the concept of public law is interpreted broadly.

An example is today’s AUSPUBLAW post on the High Court’s recent decision in Queensland v Congoo [2015] HCA 17 Continue reading

News: Chief Justice French before the New South Wales Environmental Defenders Office

Fresh on the heels of his visit to Melbourne Law School, later this month Chief Justice French will be speaking at the fundraising dinner celebrating the 30th Anniversary of the New South Wales Environmental Defenders Office (NSW EDO). He will do so at a time when government funding cuts for the nation’s environmental community legal centres mean that they are under threat (including of late in the NT and WA). The NSW EDO appears to be withstanding national funding cuts and those by the NSW government in 2013 (see this piece by Amelia Thorpe from UNSW) and continues to work on national and local matters – particularly case law, capacity building and reform. Continue reading

News: A century of dissents

Last week, UNSW’s Gilbert and Tobin Centre for Public Law held a workshop on Great Australian Dissents. The  judgments nominated by the attendees were tweeted during the proceedings and included thirteen High Court dissents from 1915 to 2013:

Although my own nomination was Deane J’s anguished dissent in the Chamberlain case, my workshop paper identified a forgotten judgment from exactly one hundred years ago as arguably the greatest dissenting judgment of all time. Continue reading

News: A reprieve in the High Court

Yesterday, in Isbester v Knox City Council [2015] HCA 20, the High Court unanimously quashed a 2013 decision by a local council ordering that the plaintiff’s dog, Izzy, ‘be destroyed’, observing that the decision:

affects the owner of the dog. Whether one describes an interest in a dog as a property right, or acknowledges the importance of a domestic pet to many people, the appellant is a person who may be affected by a decision which will require her interests to be subordinated to the public interest.

The Court held that, because the panel the Council formed to decide Izzy’s fate included a council employee who had prosecuted the plaintiff for the offence of owning Izzy when the dog bit a person’s finger (a ‘serious injury’ under Victoria’s Domestic Animals Act 1994), her involvement in the later decision about Izzy’s destruction created a risk of apprehended bias. Izzy’s fate now depends on a fresh decision by the council, made without any involvement by the earlier decision-makers or the prosecutor.

The case is an unusual illustration of how a final court of appeal like the High Court can sometimes be required to make decisions about life and death. Continue reading

News: Vale Sir Kenneth Jacobs

Sir Kenneth Jacobs, former Justice on the High Court from 1974 to 1979, has passed away aged 97. The High Court noted his passing and his contributions to the court in a media release:

The Court notes with sadness the recent passing, in the United Kingdom, of Sir Kenneth Jacobs KBE, who served as a Justice of the Court from 1974 to 1979. Sir Kenneth, who was born in Sydney in 1917, graduated from Sydney University with a Bachelor of Arts in 1938, served with the Australian Imperial Forces during the Second World War and on his return to Australia graduated in 1947 with a Bachelor of Laws with First Class Honours and the University Medal. He practised as a barrister in New South Wales and was made Queen’s Counsel in 1958. He served as a Judge of the Supreme Court of New South Wales form 1960 to 1974, including eight years on the Court of Appeal culminating in his service as its President from 1972 to 1974. He was appointed to the High Court in 1974 and retired on 6 April 1979. His judgments in the Court, which are still quoted, made an important and lasting contribution to the development of a number of areas of public and private law.

Fuller biographical details are available via the Court’s website here.

An obituary in The Australian provides further details about the circumstances of his retirement from the Court in 1979 and his later life:

Sir Kenneth Jacobs, a self-described liberal who resigned from the High Court in 1979 after being misdiagnosed with stomach cancer, has died aged 97….  Then chief justice Garfield Barwick didn’t want Jacobs to resign, but Jacobs, then aged 61, felt the prognosis was so dire that he would be a drain on the court and left on April 6, 1979. When he did not suffer the predicted downturn in his health, Jacobs consulted another specialist who told him that he had only suffered a painful condition called diverticulitis.

Jacobs considered suing his first doctor, but decided against it and left Australia for England in the early 80s with his British-born wife Eleanor. He settled in Wiltshire and took up bookbinding — and later printing — as he settled into village life .After Lady Eleanor died in 2002, he went back to school and completed a Masters in Classics at London University.

Wikipedia lists the date of his death as 24 May 2015. Our condolences to his family.

Thanks Melissa Castan (@MsCastan) for alerting us.

News: Swearing in Female Judges

In advance of the swearing-in of Michelle Gordon as the 52nd justice of the High Court on 9 June 2016, ABC’s Radio National has spoken about the ceremonial speeches of female judges with ANU’s Heather Roberts. These are events that Dr Roberts describes for the uninitiated as having ‘a bit of a ring of a combination between a eulogy for the living and an Academy Award acceptance speech’. And there are discernible differences in the events and between the speeches given in the past for the inauguration of men and women: one of the central topics of the Radio National program. Continue reading

News: French CJ gives Harold Ford Memorial Lecture on Trusts and Statute

Melbourne Law School was honoured to hear French CJ give the 2015 Harold Ford Memorial Lecture. This year’s topic was “Trusts and Statute”, a fitting nod to the late Professor Ford and his expertise in both trusts law and corporate law. Chief Justice French discussed the history of trusts and the way in which statute intertwined with trust law from a very early stage. He also discussed the impact of legislation on trust law in various different areas, including charities law, tax law and corporate law. His comments on the need for coherence, and on the difficulties and advantages of statutory intervention were of particular interest.

His Honour’s presentation was videoed and is available for viewing here.

News: New ICAC challenge goes directly to the High Court

At a hearing on Monday, Gageler J ordered the ‘removal’ to the High Court of a NSW matter challenging the constitutionality of recently enacted NSW legislation retrospectively validating some past actions by that state’s Independent Commission Against Corruption. The Judiciary Act permits the High Court to move any current constitutional or federal dispute in any Australian court directly to the High Court if one or more parties (or an Attorney-General) applies. Last Tuesday, Gageler J agreed to expedite the request to move the application and ordered the parties to provide written submissions. According to Monday’s reasons, those submissions (which are not publicly available) were persuasive:

I am persuaded to take this course having regard, in particular, to the potential for an early resolution of the constitutional issue by this Court to result in a significant saving of time in the hearing and disposition of the proceeding between the present parties that is now pending in the Court of Appeal, as well as to the resolution or substantial resolution of a number of other proceedings now pending in the Supreme Court of New South Wales in which the same issue arises, or is likely to arise.

Indeed, the removal was supported by the party challenging the legislation and was not opposed by ICAC. (By contrast, see here on unsuccessful applications for removal.)

The current ICAC matter has close ties to two separate High Court judgments that were brought down on April 15 this year. Continue reading

News: The High Court splits evenly again

Today, the High Court issued its judgment in the last of three six-judge decisions heard in the months before Crennan J’s retirement. As I discussed in this piece in The ConversatIon last December, even-numbered benches are a sporadic, but persistent, by-product of the Court’s composition:

This same problem arises each and every time a High Court judge approaches retirement. Indeed, it’s happening right now. The Court is scheduled to hear six judge cases in important matters through to June next year because two High Court judges are retiring in succession. Any one of them could be another tie. Cases already at risk of being resolved, perhaps irreversibly, by a tie breaker include regulatory action over Sydney’s radio hoax tragedy, a native title claim over a World War Two training ground, and the aftermath of the collapsed tourism, property and finance group, Octaviar bankruptcy.

The radio hoax and bankruptcy cases were resolved unanimously. However, as I feared last year, today’s native title decision was a tie, Continue reading

News: Over a dozen High Court holdings abolished in Victoria

Yesterday, Victoria’s Parliament passed a law that overturns over a significant number of High Court holdings on the law governing criminal trials. The notes to the Jury Directions Bill 2015 state that it ‘abolishes’ (or confirms the prior abolition of) rules stated by the High Court in the following cases:

  • Pemble v R [1971] HCA 20,  Gilbert v R [2000] HCA 15 and R v Nguyen [2010] HCA 38, on jury directions on defences, offences and bases for complicity that were not argued by the prosecution or defence.
  • Edwards v R [1993] HCA 63 and Zoneff v R [2000] HCA 28, on jury directions on so-called ‘consciousness of guilt’ evidence.
  • Longman v R [1989] HCA 60Crampton v R [2000] HCA 60 and Doggett v R [2001] HCA 46, on jury directions on how the defence may have been disadvantaged due to the time elapsed between an alleged offence and the trial
  • Weissensteiner v R [1993] HCA 65Azzopardi v R [2001] HCA 25 and Dyers v R [2002] HCA 45, on jury directions on the defendant’s failure to explain evidence or to call particular witnesses at the trial
  • Kilby v R [1973] HCA 30 and Crofts v R [1996] HCA 22, on jury directions on the credibility of rape complaint evidence
  • Shepherd v R [1990] HCA 56, on the proof of facts that are indispensable to the prosecution case.

The BIll also refines other aspects of the law on jury directions that have repeatedly been addressed in the High Court, including directions on so-called ‘similar fact’ evidence, identification evidence and the meaning of ‘proof beyond reasonable doubt’.

The sheer number of cases addressed by the BIll is only part of the story. Continue reading

News: July constitutional law conference will include focus on Hayne J

One of the many traditions when the guard changes at the High Court is reviews of the outgoing judge’s contribution to the law. At his final special leave hearing in Sydney two Fridays ago, members of the NSW profession spoke to Hayne J’s role, and further similar occasions will doubtless follow in Melbourne and Canberra. Alongside such ceremonial efforts, some (but not all) High Court judges also find themselves the topic of a conference or panel. In Hayne J’s case, such an examination will occur as part of a constitutional law conference to be held by Melbourne Law School’s Centre for Comparative Constitutional Studies on July 23 and 24.

The conference will include two events specific to Hayne J. Continue reading

News: Four new special leave grants

In sittings on Friday, the High Court granted special leave to appeal the following four decisions:

  • Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2014] FCAFC 133 concerns the taxation obligations of liquidators. The full court of the Federal Court held that a liquidator who sold a bankrupt company’s property was not required to withhold an amount from the proceeds to pay the company’s capital gains tax, because the liquidator had not received an assessment requiring it to pay the tax.
  • R v Smith [2014] QCA 277 is an appeal against Smith’s conviction for a 1990 rape. The Queensland Court of Appeal dismissed all of Smith’s complaints, including the trial judge’s decision to permit the jury to reach a 11:1 majority verdict. It held that the trial judge was not obliged to disclose to the parties information from the jury about the state of their deliberations prior to permitting a majority verdict, characterising a recent Victorian decision to the contrary as clearly wrong.
  • State of New South Wales v Fuller-Lyons [2014] NSWCA 424 concerns a tragic accident from 2001 where an 8 year-old with a cognitive impairment fell out of a train travelling at 100 km/h. The NSW Court of Appeal overturned the trial judge’s finding that the accident was due to the train station attendant’s failure to notice the child’s arm protruding from a door as it pulled away from Morisset station, holding that the evidence was equally consistent with the child propping open the door with a less visible object.
  • WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137 concerns the obligation to provide an oral hearing to an applicant for a protection visa. The full court of the Federal Court held that the applicant, who had been given an oral hearing before an independent merits reviewer, had a legitimate expectation to a further oral hearing after a new independent merits reviewer was appointed.

News: Justice Michelle Gordon’s unsurprising appointment

A long rumoured appointment to the High Court was announced yesterday:

Today, his Excellency the Governor-General accepted the advice of the Government to appoint the Honourable Michelle Marjorie Gordon, a Judge of the Federal Court of Australia, as the next Justice of the High Court of Australia. Justice Gordon will replace the Honourable Justice Kenneth Hayne AC, who will reach the statutory retirement on 5 June 2015.

Very much like Hayne J’s own appointment in 1997, Gordon J’s is entirely orthodox given the usual criteria of merit and geographic (and, in Gordon J’s case, gender) diversity on the Court. Like Hayne J (whose appointment by the Howard government was also ‘not unexpected in legal circles’), Gordon J’s appointment is perceived by some to be  consistent with the federal government’s conservative politics. In contrast to the recent novelty of Nettle J’s status as the Court’s oldest appointee, Gordon J (aged 50) is the Court’s youngest appointee since Gaudron J (aged 44 in 1987), a distinction held until now  by Hayne J (appointed at age 52.)

Justices Gordon and Hayne have one more thing in common: Continue reading

A short obituary of John Toohey by Justice James Edelman

I was in Brisbane on 10 April 2015 this week when I heard the heart-wrenching news that the Honourable John Leslie Toohey AC QC had passed away the previous evening. Although I knew his death was imminent I was still overwhelmed with sadness. John Toohey was a humble and gentle man from whom, and about whom, I never heard an ill word spoken. He was a gentleman in every sense. He talked with crowds and kept his virtue.  He walked with Kings but never lost the common touch.

I had barely graduated from university when I began work for John in 1997.  It was, and remains, for me, an unimaginably fortunate start to a legal career. John had an extraordinary intellect. He was a wonderful teacher. And most of all, he had a human touch without match. In court this manifested itself in a deep respect for his colleagues, for counsel and for his staff. I came to work for him as a fresh-faced graduate.  His intellectual ability, his legal knowledge and his judgement intimidated me. But for the 12 month period of my associateship he treated me, as he did all of his law graduate associates, as an equal. For the two decades that followed, he and his incredible wife, Loma, remained mentors and confidants, and treasured friends.

When Dr Barnett asked me to write this short obituary to honour John Toohey, I accepted un oeil qui rit et un oeil qui pleure. The laughter was prompted by my knowledge that John had already read much of the obituary that I would write. Following his retirement in 1998, Natalie Gray and I wrote a short biography of him for the Journal of Judicial Administration. We had just completed a year as his final associates. John had retired from the High Court and we wanted to express our sentiments of the extraordinary esteem in which we held him, our pride in his powerful sense of service, and our respect for his empathy and compassion. He sent us a warm note of thanks. With his usual dry wit he told us that he was particularly grateful to be given the privilege of reading his obituary. Natalie and I returned to the subject again for the entry we authored on John Toohey in the Oxford Companion to the High Court of Australia. With his wry smile he made another remark about our calling as obituary writers. Continue reading

News: Bank fees back to High Court

In December 2013, I predicted that the now long-running case involving bank fees would end up again before the High Court. That prediction appears to be about to come true.

In February 2014, after the High Court’s earlier decision in Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30, Federal Court judge Gordon J decided that most of the disputed fees were not penalties, apart from late credit card payment fees (as I posted here). Yesterday, in a resounding victory for the banks, the Full Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 held that none of the fees were penalties, including the late payment fees. Moreover, none of the fees were unconscionable or unfair.

The Full Federal Court overturned her Honour’s judgment with regard to the late payment fees on the basis that she incorrectly looked at whether the fees paid by Mr Paciocco and his company were ex post (after the event) exorbitant and extravagant, rather than looking at the greatest ex ante (predictable) loss which could have flowed from the breach and assessing the reasonableness of the fees in that light (see [51]-[52] of Allsop CJ’s judgment, with which Besanko J and Middleton J agreed in separate judgments). In light of yesterday’s decision, the plaintiffs have indicated that they intend to appeal to the High Court. The Age reports today:

After ANZ’s appeal was allowed on Wednesday, Maurice Blackburn’s national head of class actions, Andrew Watson, who is representing customers, said he would appeal against the Federal Court’s ruling in the High Court:”Obviously we’re still digesting the details of what’s a very large decision, but based on what we’ve read, we think there are grounds for appeal and we will be making an application for special leave to appeal to the High Court,” he said.

“It is perhaps appropriate that Australia’s largest consumer class action will ultimately be determined by Australia’s highest court, and as a result of today’s decision, that’s where we’re headed…”

Meanwhile, the banks are hoping that their latest win will signal the end of the litigation. I predict that there’s scant chance of that.

News: Nettle J’s first judgment

Today, in his first judgment on the High Court, Nettle J explained why a federal incentive scheme for reducing greenhouse gas emissions was constitutional, a conclusion that most constitutional lawyers would have predicted. Even non-lawyers could have readily predicted what the remainder of the bench would say:

FRENCH CJ. I agree with the answers given by Nettle J to the questions posed in the Special Case for the reasons which his Honour gives.
HAYNE J. I agree with Nettle J.
KIEFEL J. I agree with Nettle J.
BELL J. I agree with Nettle J.
GAGELER J. I agree with Nettle J.
KEANE J. I agree with the judgment of Nettle J.

Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12 is the latest in a tradition of sorts, where the High Court periodically forgoes its usual practice of presenting judgments where multiple judges agree (and have nothing further to add) as jointly authored by all of them, in favour of one judge presenting the judgment and the rest giving individual pro forma concurrences.

Although seemingly never officially acknowledged, the practice appears to be a way for the Court’s judges to mark the arrival of a new judge on the bench.  Continue reading

News: Report that Bell J recused herself from Cunneen case

This Wednesday, the High Court held an all-day hearing on the closely watched dispute between the NSW Independent Commission Against Corruption and prosecutor Margaret Cunneen over the legality of the former’s inquiry into allegations that the latter perverted the course of justice in a traffic matter involving her son’s girlfriend. Reports during the day emphasised criticisms from the bench of ICAC’s barrister, but of more interest is an early morning report in the Sydney Morning Herald early that focused on the composition of the bench itself:

When the High Court convenes to hear the hotly anticipated legal battle between the NSW corruption watchdog and Crown prosecutor Margaret Cunneen on Wednesday, one judge will not be on the bench. Fairfax Media understands Justice Virginia Bell will not be part of the five-judge bench hearing the Independent Commission Against Corruption’s challenge to a ruling shutting down its inquiry into the silk because she has previously made a ruling unfavourable to Ms Cunneen.

The transcript for Wednesday’s all-day hearing shows that the five-judge bench consisted of French CJ , Hayne J, Kiefel J, Gageler J and Nettle J. Justice Hayne’s presence is something of a surprise, given that he must retire in three months (in apparent contrast to Crennan J, who heard her last full bench matter over three-and-a-half months before her retirement.) On the other hand, Bell J’s absence from the bench was seemingly no surprise, a fact that raises two interesting issues about the High Court itself. Continue reading

News: Nettle J joins the bench

On Tuesday morning, the High Court held a ceremonial sitting for the swearing-in of Nettle J as the Court’s fiftieth judge, attended by all six of his future colleagues, thirteen of his former colleagues on the Supreme Court of Victoria, nine of Australia’s eleven Chief Justices and a multitude of senior lawyers and former judges. Video of the ceremony (the first such to be posted on the High Court’s website under its new audio-visual policy) captures the moment when Nettle J strode directly up to French CJ and announced his commissioning by the Governor-General. He  took an oath of allegiance and of office – a choice also taken by every other new High Court judge in the past two decades bar one – and then his seat on the bench. As in all High Court ceremonies, the bulk of proceedings were taken up with speeches from senior lawyers lauding the new judge, beginning with federal Attorney-General George Brandis, who said that he ‘can scarcely remember an appointment to this Court which was so seamless, so free of controversy, and so universally appraised.’

While the bulk of the ceremony looked to Nettle J’s past, its last fourteen minutes provide a glimpse of the Court’s future. Two parts of Nettle J’s swearing-in remarks are especially illuminating. Continue reading

News: Furore over AHRC President

Recently, Australian Human Rights Commission President Gillian Triggs has been under intense criticism, particularly by The Australian newspaper for her handling of an AHRC report involving a West Papuan man called John Basikbasik.Two points should be made at the outset. First, Triggs is not a judge, and accordingly her decision was not binding. The report contained recommendations which could be rejected by the Minister. Secondly, the Minister did in fact reject President Triggs’ recommendations in May 2014. Mr Basikbasik remains detained and will not receive the recommended compensation.

As these two recent articles in The Australian indicate, the criticisms are being made in the context of a wider furore about the timing of Triggs’ AHRC report into children in detention. Indeed, Richard Ackland has claimed that The Australian newspaper is focusing on the Basikbasik case for this reason. Academic opinion about the Basikbasik case has generally been on Triggs’ side, as prominent Australian international law scholars and others have written to express their support of Triggs’ determination in the Basikbasik case. Professor Mirko Bagaric of Deakin University was a rare exception, and expressed the view that the determination was in error because it took into account the International Covenant on Civil and Political Rights (‘ICCPR’). On Friday last week, The Australian published an article by Professor Ben Saul of Sydney University which was strongly in favour of Triggs. As Professor Saul points out, the definition of the “human rights” under s 3 of the Australian Human Rights Commission Act 1986 (Cth) expressly mentions the ICCPR as a source of such rights.

There is a High Court link to the furore, as the Basikbasik case came before the High Court in 2013, although he was called SZOQQ. Continue reading

News: Crennan J’s solo judgments

Justice Susan Crennan’s imminent retirement from the High Court inevitably invites reflections on her contribution while on the bench. According to Jane Needham SC, Crennan J ‘delivered 316 judgments’ in her nine years at the national court. However, only five of those judgments (two early judgments on wrongful life actions, and three constitutional judgments on elections and executive power) were mentioned in recent ceremonial sittings to mark her retirement. The key difficulty in assessing Crennan J’s contribution was alluded to in the judge’s own remarks at the Sydney ceremonial sitting:

From time to time, there is speculation about the authorship of joint judgments from this Court. Naturally, it is not always accurate. Earlier this year, Justice Kiefel on my right remarked of judgment writing, “Collegiality is not compromise”. In that spirit, may I take the goodwill expressed toward me this morning as an appreciation of the work of the Court as a whole.

By my count, Crennan J issued 28 sole-authored judgments while on the High Court, easily less than 10% of her total. In an extreme contrast, the last High Court judge to retire, Heydon J, issued twice that many such judgments in a single year on the bench (as part of a seventeen-month period where he never joined a judgment.)

Here is my list of Crennan J’s solo High Court judgments: Continue reading

News: Man Haron Monis in the High Court

Opinions on High extends our condolences to those affected by this morning’s events in Sydney, especially the bereaved. In the aftermath of this tragedy, there will undoubtedly be close scrutiny of Man Haron Monis, the man said to be the assailant in the Lindt Cafe. As part of its initial analysis, today’s Sydney Morning Herald notes Monis’s recent litigation before the High Court of Australia:

It has been Monis’ ongoing legal battle over his conviction for penning the poisonous letters to the families of dead Australian soldiers between 2007 and 2009 that has consumed him. It is understood Monday’s siege followed an unsuccessful, last-ditch attempt in the High Court on Friday, December 12, to have the conviction overturned.

This post outlines the various hearings the High Court has held relating to Monis’s argument that the federal crime he was charged with – using a postal service to cause offence – is invalid under the Constitution’s implied freedom of political communication. Continue reading

News: High profile cases considered for special leave

On Friday, the High Court held its last special leave hearings for 2014. The media  reports that French CJ has referred a closely watched case, Cunneen v Independent Commission Against Corruption [2014] NSWCA 421, where a majority of the NSW Court of Appeal stopped a corruption inquiry into allegations against a NSW prosecutor, to a full court hearing next year. However, various media reports have highlighted the Court’s refusal to hear appeals in three other high profile matters:

In Friday’s hearings, the Court granted special leave in just two matters:

Continue reading

News: Justice Geoffrey Nettle’s surprise appointment

Today brings an end to recent speculation about the next appointment to the High Court.  The Australian reports:

GEOFFREY Nettle, a “brilliant” judge of the Victorian Court of Appeal, has been named as the Abbott government’s first appointment to the High Court. Justice Nettle will replace Justice Susan Crennan, who will retire from the bench on February 3, five months ahead of schedule. Attorney-General George Brandis made the announcement this morning at Parliament House in Canberra. He walked out of the room immediately after making the announcement without taking questions.

Justice Nettle’s appointment is unsurprising in many respects: he is a Victorian (replacing another Victorian, Crennan J), a graduate of the ANU, Melbourne Law School and Oxford (see Katy Barnett’s discussion of High Court judges’ education), a sitting judge (like most recent appointments) and (in my and many others’ opinions) one of the best judges in Australia. He is also male, meaning that the High Court’s number of female judges will drop to just two out of seven, but that number may be short lived depending on who replaces Hayne J next year.

And yet, the recent speculation about Crennan J’s replacement discounted Nettle J as a possibility for just one reason: his age. Justice Nettle’s wikipedia page states that he was born in 1950 (but does not specify a birthday), meaning he will be either 64 or 65 when he first sits, easily the oldest ever appointee to the High Court. Continue reading

News: Unsuccessful High Court litigants succeed at the UN

Last week brought news that NSW prisoners Bronson Blessington and Matthew Elliot succeeded in a complaint to the United Nations Human Rights Committee. Now in their forties, the pair were teens when they raped and murdered Janine Balding in 1988 and were in their thirties when the High Court rejected their appeals against their life sentences in 2007. The Human Rights Committee’s finding – that a NSW law that barred their parole until they were near death violated their right against cruel, inhumane or degrading treatment under the International Covenant on Civil and Political Rights – was foreshadowed by Kirby J ten years ago during a constitutional challenge to similar laws:

At the time of the offence for which Mr Blessington was convicted and sentenced, he was 14 years of age…. On a true construction of the impugned law, Mr Blessington’s “possibility of release” is, in my view, a chimera, and deliberately so. If that is the case, the impugned law is in conflict with binding international obligations expressing universal human rights and fundamental freedoms.

However, Kirby J was the only High Court judge to hold that the laws were invalid. In 2012, the High Court unanimously rejected a challenge to even stricter laws to largely prevent the parole of Elliot, Blessington and eight other New South Wales prisoners, the subject of the Committee’s recent finding.

The UN Committee’s finding does not overturn or even bring into question the High Court’s rulings. Continue reading

News: Crennan J stops hearing cases ahead of retirement

This week, Australians found out about Crennan J’s pending retirement in the usual way: a column by UNSW’s George Williams speculating on her replacement. (See here for Katy Barnett’s commentary.) Although there has been no official announcement, her decision to retire was clearly known to some members of the NSW legal profession, who organised a farewell for her last Friday. Close watchers of the Court will also have noticed two 6-member benches (all the Court’s judges other than Crennan J) in significant hearings last week concerning the Today FM nurse hoax and bankruptcy procedure. That is consistent with the usual practice where High Court judges stop hearing new cases months ahead of retirement. Justice Crennan will spend her remaining time on the bench hearing procedural and special leave applications, and writing opinions in her three outstanding reserved matters.

While Australians are well used to such goings-on every time a High Court judge retires, Canadians’ experience is quite different.  Continue reading

News: Thoughts on new judges for the High Court

This morning, George Williams has a piece in the Sydney Morning Herald, noting that Crennan J and Hayne J will soon retire, and that Crennan J intends to step down from the Court on 2 February 2015. It is natural to predict who will replace the outgoing judges, although as Williams notes:

Every High Court appointment leads pundits to forecast who will be selected. Doing so can be fraught. The most worthy candidates often miss the cut, while others prove a surprise. As I have said elsewhere, predicting the next High Court justice is like trying to pick the winner of the Melbourne Cup, but without knowing who is in the field.

Williams notes that diversity, gender, ethnicity and geography are often taken into account in making new appointments. There has to be a balance between the judges from different States of Australia, and as the two outgoing judges are Victorian, it seems that at least one of the replacements is likely to be Victorian. Consequently Williams concludes:

If you were wanting to place a bet on Australia’s next High Court judge, the smart money would be on a serving judge from Victoria, aged 60 or under, with impeccable legal credentials. The person would also be favourably regarded in conservative circles and would not have a background of supporting the states. Beyond that, it’s anyone’s guess.

Continue reading

News: The High Court issues a partial verdict on Qld’s ‘bikie’ laws

Today’s judgment in Kuczborski v Queensland dismissed a challenge to a package of laws passed over a year ago as the Queensland government’s response to a ‘brawl’ between two motorcycle gangs in the Gold Coast suburb of Broadbeach. The case definitively resolves (by a solid 6-1 majority) that a key part of the Queensland scheme (borrowed from a narrower regime in NSW) that subjects participants in (to date, 26) ‘declared’ criminal organisations to criminal laws limiting their public behaviour (including bans on public gatherings of participants, bans from particular addresses; and barring everyone from licensed premises if they are wearing particular clothes or patches) leaves Queensland’s courts’ ‘integrity’ intact.

However, the case does not resolve a number of other issues about the Queensland laws: Continue reading

News: Chief Justice writes to law deans about inappropriate communications

Justinian has posted what purports to be a copy of a letter French CJ wrote to the current head of the Council of Australian Law Deans ‘to express a concern about recent incidents in which legal academics have provided to the Court copies of papers which relate to matters pending before the Court’.  In 2012, the Chief Justice publicly expressed ‘reservations’ about academic articles ‘produced with a view to influencing the development of the law in a pending case’, remarking: ‘I am not saying that this is improper but its value may be discounted to the extent that it smacks of advocacy.’ By contrast, the concern expressed in the present letter is not with whether or why such articles are written, but rather when and to whom they are communicated: ‘providing materials which are not accessible to the parties, a fortiori after the Court has reserved its decision, are inappropriate and inconsistent with the transparency of the judicial process’.

As French CJ noted in his 2012 speech, dialogues between courts and academics are sometimes made difficult by ‘differences of purpose, perspective and methodology between judicial reasoning and legal scholarship’. Continue reading

News: New appeals on liquidation and deportation

The two new special leave applications granted last Friday were from the following decisions:

  • Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2014] NSWCA 148, like another NSW matter that was granted leave in August, concerns the bankruptcy of the Octaviar investment group and a court’s power to extend the time limit for a liquidator to apply to void some of a company’s pre-bankruptcy dealings. In this case, a five-judge bench of the NSW Court of Appeal affirmed its own 2003 ruling permitting ‘shelf orders’ extending the time limit generally (rather than for specific dealings) and upheld the trial judge’s addition of the applicants (parties to some of the transactions with the bankrupt companies who were not present when the shelf order was made) to the proceedings to void the transactions.
  • Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86 concerns the statutory obligation to consider the interests of a non-citizen’s children in immigration decision-making.  The federal Administrative Appeals Tribunal, affirming a decision to deport a New Zealand citizen with criminal convictions, only considered the interests of three of the man’s five Australian-resident children. The full court of the Federal Court held that a federal statute barred the Tribunal from considering the interests of his remaining two children, because their existence only emerged during the oral hearing and hence was not notified to the Minister in advance.

Amongst matters refused special leave was the issue of interim injunctions to stop Melbourne’s planned East-West Link, discussed here.

News: East West Link High Court case explainer

On Friday the project that has been the subject of much recent commentary in the context of the forthcoming Victorian parliamentary elections will return to the High Court in the case of Murphy v State of Victoria. Murphy is opposing the East West Link road and tunnel tollway. His substantive claim is that the State of Victoria and the statutory authority charged with administering the project has engaged in misleading or deceptive conduct contrary to the Australian Consumer Law. Murphy alleges that the State government’s claims and calculations about the economic benefit of the project are misleading or deceptive. He asserts that the project should therefore not proceed. The Victorian Court of Appeal found that the Murphy’s claims should be tried before the Supreme Court. The trial preparation process is expected to result in the Victorian government disclosing the document containing the so called ‘business case’ for the project, which continues to be kept secret. Continue reading

News: Reflections on Tampa and CPCF at the Constitutional Reform Unit

We recently came across this excellent post at the University of Sydney’s Constitutional Critique blog on the upcoming case, CPFC v Minister for Immigration and Border Protection:

First came the victory, when in Pape it was held to authorise laws governing stimulus payments during the GFC. Then came the defeat, when in Williams (No 1) it was denied the capacity to authorise funding for chaplains in schools. Now non-statutory executive power (NSEP) is poised to make a comeback, in its most controversial and politically-charged instalment yet, CPCF v Minister for Border Protection and the Commonwealth. But whereas in previous cases the stakes were measured in dollar terms, this time the consequences of the alleged exercise of NSEP have a human face.

It will be very interesting to see whether the High Court takes the opportunity to consider the scope of non-statutory executive power (NSEP), or whether the unresolved issues in the Tampa case with regard to the Commonwealth’s NSEP will remain in that state.

News: Death of alleged victim in Perry v R

This weekend saw the death of Kenneth Perry, thirty-two years after the High Court quashed his wife’s conviction for attempting to murder him. Perry died as he had lived for decades, staunchly maintaining that his wife played no role in several bouts of arsenic poisoning he suffered in the late 1970s. Emily Perry was never retried by South Australian prosecutors, while a further charge for the murder of her first husband laid by Victorian prosecutors was dropped in 1986.

The High Court’s judgment in Perry v R is famous for its bold stand against convictions based on so-called ‘similar fact’ evidence. Continue reading

News: Migration Bill targets High Court rulings

Last Thursday, Immigration Minister Scott Morrison introduced the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 into the federal Parliament. While the headline issue is the return of temporary protection visas,  the Bill contains many other provisions. Indeed, the Explanatory Memorandum observes that the ‘Bill fundamentally changes Australia’s approach to managing asylum seekers’. As  asylum seeker law is regularly considered by the High Court, the Bill inevitably responds to a number of the Court’s decisions and is intended to reverse several of them.

The major change is contained in Schedule 5 (‘clarifying Australia’s international law obligations’), which is intended to reverse ‘a series of High Court decisions which have found that the Migration Act as a whole is designed to address Australia’s non-refoulement obligations’, Continue reading

News: Legal threat to state drug laws recedes

In last Friday’s hearings, the High Court refused special leave to two criminal defendants challenging the validity of NSW’s main drug offence: supplying, or knowingly taking part in the supply of, a prohibited drug. In refusing leave, the Court mostly put to rest doubts that have arisen in recent years about the continued operation of most state drug laws (and a number of other state criminal laws) that overlap with federal criminal laws.

The source of the recent doubts was a 2010 ruling by the High Court Continue reading

News: Supreme Court blog and Harold Ford Memorial Lecture

First, last year, we mentioned the possibility that the Victorian Supreme Court was going to start a blog. The blog has come to fruition and has just published its first substantive post, ‘The many challenges of modern common law litigation’ by Forrest J. The post appears to be further the court’s ambition of ‘creating greater community understanding’ about the law, as it is clear, (relatively) non-technical, conversational, and offers plenty of context about the issues discussed.

Secondly, for those interested in corporate law and securities regulation, Hayne J gave this year’s Harold Ford Memorial Lecture hosted by the Centre for Corporate Law and Securities Regulation. His lecture was entitled Directors’ Duties and a Company’s Creditors. The video is available on the CCLSR’s website here and on the University’s youtube channel. Hayne J’s paper has been accepted for publication in volume 38(2) of the Melbourne University Law Review which will be published before the end of 2014.

News: Court takes on new native title case

The High Court has spent this week in Brisbane, hearing the constitutional challenge by Hells Angels member Stefan Kuczborkski to various Queensland laws targeting ‘bikie gangs’ and an employment law appeal concerning a man who was dismissed after he held a sign attacking ‘scabs’ during industrial action concerning a coal mine. As well, the Court heard six applications for special leave to appeal from Queensland matters and granted leave in one of them. Continue reading

News: David Eastman conviction quashed

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

News: New Zealand Supreme Court follows High Court on political charities

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 [1917] 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 [1982] Ch 321 and Hanchett-Stamford v Attorney-General [2009] 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 [2010] HCA 42. At [45]–[46], 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 [2014] 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 [1981] 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 [66]–[71] 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.

News: Tasmanian anti-environment protest laws back before Parliament

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.

 

News: New Court matters include case about tragic radio hoax

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

News: Big trouble for crime boss scenario evidence

Seven years ago, a majority of the High Court in Tofilau v R [2007] 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

News: Journalist interviews every judge of Canada’s top court

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.

News: Court reportedly issues interim injunction in Sri Lankan asylum matter

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

News: High Court is Australia’s most trusted institution

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

News: Qld bikie laws challenge set for lengthy hearing in September

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

News: Media round-up on Chaplain Case

Sometimes High Court judgments excite a lot of interest not only from lawyers, but from the general public. Williams v Commonwealth [2014] 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.

 

Productive court takes on two new appeals

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

News: Williams No 2 Symposium on Opinions on High

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.

News: Farewell Professor Leslie Zines AO

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.

News: The Rylands rule and fracking; 20 years since Burnie Port

We have recently passed the 20 year anniversary of the High Court’s decision in Burnie Port Authority v General Jones Pty Ltd [1994] 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

News: Chaplaincy hearing reaches its fourth day

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

News: Will Raymond Carroll be retried for the murder of Deidre Kennedy?

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

News: One-person parole law enacted in Victoria

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’.

Continue reading

News: The Higher the Court, the More Formal the Dress

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

News: Canada’s top court votes out one of its own

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 hereContinue reading

News: A UK Supreme Court judgment is leaked

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

News: Customers appeal in bank fees case

In February, I noted that Gordon J had handed down her decision in Paciocco v Australian and New Zealand Banking Group Limited [2014] 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.

News: Judge Ad Hoc Callinan and the International Court of Justice

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