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

Endeavouring to Solve a Contracting Puzzle: Verve Energy

By Wayne Jocic and Matthew Bell

Verve Energy Case Page

Every transactional lawyer, and his or her clients, can imagine the situation. Contract negotiations have stalled because one party is unable to commit unconditionally to an obligation: aspects of its performance, it says, are beyond its control. That party might be a builder who is reluctant to provide a warranty that a third party assessor will accredit a building’s environmental sustainability to a particular standard, or an information technology contractor which needs to provide documents to independent consultants but cannot guarantee that they will keep them confidential.

The contract needs to be finalised and signed. Where do the parties turn?

Inevitably, the drafter or negotiator will call for help from an ‘endeavours’ clause. Whether the adjective in which it is clothed is ‘best’, ‘reasonable’ or otherwise, the concept often ends up being the foundation on which the conditioned obligation rests. Prudent drafters typically seek to add precision, perhaps by specifying criteria by which the endeavours are to be tested, or by setting out specific action that the counterparty must take.

In Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 (Verve Energy), the High Court was called upon to decide whether a clause requiring gas sellers to use ‘reasonable endeavours’ to supply a ‘supplemental’ amount of gas was breached by the sellers. They had declined to make that gas available, largely because they could charge more than the contracted amount for it. Continue 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

An Opportunity Saved: Duress in the High Court of Australia: Verve Energy

By Professor Elise Bant

Verve Energy Case Page

Some may regard the recent High Court of Australian decision in Electricity Generation Corporation v Woodside Energy Limited [2014] HCA 7 (Verve Energy) as a missed opportunity to clarify the doctrine of duress. The basic elements of duress are straightforward: the plaintiff must have been (1) subjected to illegitimate pressure which (2) caused the plaintiff to confer a benefit on the defendant (see Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 45–6 (McHugh JA)). However, the boundaries of the doctrine are highly controversial. Verve Energy seemed to provide the opportunity to examine some of these controversies, in particular the operation and boundaries of so-called ‘economic duress’ and whether ‘lawful act duress’ is anything other than a legal oxymoron.

Why did the High Court not consider duress?
As it was, Verve Energy was decided on contractual principles. Specifically, a majority of the High Court held that the respondent Woodside had not breached any contractual duties to Verve in the light of the Court’s interpretation of key contractual provisions. It was conceded by the parties that this rendered consideration of the duress case unnecessary (at [33]). This narrow approach to deciding the case, however, leaves the door open for the Court to consider the duress issues afresh, and on the basis of full and proper argument, in due course. In the meantime, the Court of Appeal decision insofar as it relates to duress remains a valuable addition to the body of authority on this important area. Furthermore, certain characterisations of duress made in argument before the High Court that, if accepted, would have substantially altered the nature of duress in Australia, and for the worse, have for the time being been shelved. This again leaves it open to the High Court on another occasion, and in the light of full argument on the points, to reinforce the core nature and operation of duress in Australia. Continue reading

Protecting the Plaintiff’s Expectations: Clark v Macourt

By Dr Katy Barnett

Clark v Macourt Case Page

Clark v Macourt [2013] HCA 56 is a case where the damages awarded far outstripped the cost of the original contract. The contract concerned the sale of an IVF business for close to $387,000, but a majority of the High Court affirmed the decision of the trial judge that the purchaser of the business was entitled to damages of over $1.2 million for a breach of warranty, as a substantial amount of the sperm included as an asset of the business did not comply with the warranty. This award was made notwithstanding the fact that the purchaser passed the cost of purchasing substitute sperm onto patients. This post will concentrate on the High Court’s recognition of the plaintiff’s interest in performance of the contract and the way in which damages are measured. 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.

Is Every Crook a Money Launderer? Milne v The Queen

By Professor Jeremy Gans

Milne v The Queen Case Page

Some trace the term ‘money laundering’ to the coin-operated Chinese laundromats that Al Capone pretended were the source of millions he earned from Prohibition-era alcohol sales and vice. This dubious origin-story rests on some hard facts: that crime can pay, that it may pay a lot, but that not all money is equal. If criminals want to spend their profits without attracting attention to their crimes, they have to find a way to make it look like their riches were legitimately earned. That is, illicit money is of little value until it is ‘cleaned’.

The criminal law now adds to the wealthy criminal’s burden by deeming the act of money laundering to be an especially heinous offence in and of itself. In Australia, after police and prosecutors baulked at the dirty work of sorting out criminals’ financial shenanigans, legislatures and courts have recently stretched the offence’s definition to include simply handling any money or property en route to or from any crime. The result is that many very ordinary criminal acts can now also be charged as money laundering. Shoplifting. Bank robbery. Social security fraud. Commercial offences. Just about any crime that involves anything of value. That includes tax evasion, the only crime the Americans were able to pin on Al Capone. Or it did, until the High Court put a stop to the bloat of money laundering last month.

Airing some dirty laundry

On Valentine’s Day 2004, officers of the Australian Crime Commission entered a presidential suite in Melbourne’s Sheraton Towers (now The Langham), armed with a warrant to search for evidence that celebrity lawyer Michael Brereton had schemed to evade tax. Brereton himself was never charged with tax fraud, but the Toshiba notebook computer they seized (belonging to the room’s occupant, Philip Egglishaw) yielded a list of the clients of Egglishaw’s Geneva firm Strachan and prompted seven federal agencies to join forces to investigate offshore tax havens.

Project Wickenby has resulted in dozens of prosecutions and convictions and has featured at least yearly in the High Court’s caseload this decade. In 2010, the Court rejected attempts by one of Wickenby’s most famous (but also never charged) targets, Paul Hogan, to keep a document detailing his tax affairs secret. The next year, the Court ruled that the common law did not prevent the Commission from compulsorily examining one target’s wife. In 20102011 and 2013, the Court dismissed three criminal appeals by convicted Wickenby targets. This run of successes in the High Court ended with this year’s Milne v The Queen [2014] HCA 4. Continue reading

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

News: Rare video of a protest in the US Supreme Court

Last Friday saw a dubious first: video of argument before the United States Supreme Court, now available on youtube. The matter was McCutcheon v Federal Electoral Commission, argued last October, on the vexed issue of campaign finance laws. There are several reasons this ‘first’ is dubious. For starters, there are two past clandestine photos of the court at work, albeit taken over eighty years ago. As well,the youtube video barely shows anything, as it was also taken surreptitiously and focused mainly on a protest by a group opposed to the Court’s controversial Citizens United ruling striking down limits on corporate donations. (Australia’s High Court heard and ruled on a similar case late last year.)  While the video has drawn modest attention to issue of campaign financing, its main impact has been to prompt some  interesting discussion of the legality of videos and protests inside a national court.

Continue reading

News: Empirical research on barrister gender in the Court

Economists from Monash University, Dr Vinod Mishra and Professor Russell Smyth, have published a paper in the Australian Journal of Political Science examining the effect of barrister gender on appeal outcomes in the High Court of Australia. According to the abstract:

We examine the relationship between gender of the barrister and appeal outcomes on the High Court of Australia. We find that an appellant represented in oral argument by a female barrister, opposed to a respondent represented in oral argument by a male barrister, is less likely to receive a High Court justice’s vote. However, we also find that the appellant disadvantage of having a female barrister present oral argument is (partially) offset in the case of liberal justices and on panels having a higher proportion of female justices. The extent to which the disadvantage is offset, and potentially turns from being a disadvantage to an advantage, depends on the degree to which the justice is liberal and the proportion of female justices on the panel.

For non-subscribers, an earlier version of the paper is available here. Continue reading

News: Kirby on human rights abuses by governments

The Hon Michael Kirby’s High Court career (from 1996 to 2009) has been bookended by inquiries undertaken for the United Nations High Commissioner for Human Rights into human rights initiatives and abuses of foreign states: milestones that underscore his commitment to and involvement in United Nations bodies particularly related to AIDS and human rights. In 1996 he reported for the final time on recommendations for a human rights based governance model for Cambodia, then emerging from years of conflict and human rights abuse. His focus then was to ensure that a new government created a political and legal regime that protected internationally recognised human rights. This week a report authored by former Justice Kirby was released that detailed the current and historic widespread human rights abuses committed by the government of North Korea against its own people. Kirby concluded that the abuses and crimes against humanity were perpetrated by the government, institutions and policies of the state. Continue reading

News: Twomey on WA Senate Election Case, and Questions about an Appeal to the Full Court

Further to my brief post two weeks ago linking to Grahame Orr’s piece on the WA Senate Election case on The Conversation, Professor Anne Twomey of the University of Sydney has posted ‘Missing Votes Means It’s Back to the Polls for Western Australia’ late yesterday on The Conversation. There is also a longer version of this post available on Sydney’s Constitutional Critique blog that goes into more detail about the facts of the case, the workings of the Court of Disputed Returns, and the decision itself. While several high profile electoral law cases have ended up before the High Court in recent years (Unions NSW v New South Wales [2013] HCA 58; Rowe v Electoral Commissioner [2010] HCA 46; Roach v Electoral Commissioner [2007] HCA 43Mulholland v Australian Electoral Commission [2004] HCA 41), these have concerned constitutional issues around voting rights (Roach and Rowe) the registration of political parties (Mulholland) or electoral funding (Unions NSW), rather than the contestation of electoral results themselves before the Court of Disputed Returns. Given the rarity of its operation, it is all the more helpful to have timely expert commentary on the workings of the Court of Disputed Returns.

Twomey notes an issue that many readers will have considered: can Hayne J’s decision be appealed to the Full Court? Continue reading

News: Challenge to NSW consorting laws goes straight to the High Court

At Friday’s special leave hearings, the High Court only granted leave to appeal in one case decided by the NSW Court of Appeal, a corporations law matter. However, the Court also ruled that it will hear and decide another case that is before the NSW Court of Appeal but which that court is yet to rule upon. The case is an ongoing prosecution of three people for committing the NSW crime of consorting. Even though there hasn’t been a trial so far, the matter was before the NSW Court of Appeal to determine whether or not the provision setting out the offence is invalid. Friday’s ruling means that the High Court will now be the first and final court to rule on that question.

What is the challenge about? Continue reading

Australia’s Indefinite Stance on Indefinite Detention: Plaintiff M76/2013 v Minister for Immigration and Citizenship

By Megan Driscoll and Houston Ash

Plaintiff M76/2013 Case Page

Dozens of people who have been found to be genuine refugees remain in immigration detention in Australia because they are the subjects of secret adverse security assessments made by the Australian Security and Intelligence Organisation (ASIO). Plaintiff M76/2013 v Minister for Immigration and Citizenship [2013] HCA 53 was a case brought by one of these refugees, challenging her continued detention under the Migration Act 1958 (Cth). It was of particular interest to High Court watchers because the plaintiff sought to challenge the correctness of the controversial 2004 High Court decision of Al-Kateb v Godwin [2004] HCA 37. In that case, a majority of the High Court held that the Migration Act could authorise the indefinite detention of ‘unlawful non-citizens’. In the event, a majority of the High Court in Plaintiff M76 chose not to consider the correctness of Al-Kateb. However, Plainitff M76 nonetheless sheds some light on the prospect of Al-Kateb being overturned in the future. It also ties together two recent decisions of the High Court relating to Australia’s asylum seeker assessment procedures.

Plaintiff M76’s entry into Australia
The plaintiff in this case is a Sri Lankan Tamil woman, known to us as Plaintiff M76, who entered Australia by boat at Christmas Island in May 2010 seeking asylum. Under the Migration Act, she was classified as an ‘unlawful non-citizen’ and, having arrived in Australia at an ‘excised offshore place’, she was also an ‘offshore entry person’ (now ‘unauthorised maritime arrival’). Section 189(3) of the Migration Act required officers of the Department of Immigration to immediately detain her, and under s 196(1) she must remain in immigration detention until she is removed from Australia, deported, granted a visa, or she is dealt with for the purpose of removing her to a regional processing country. Section 198(2) of the Migration Act requires officers to remove Plaintiff M76 from Australia as soon as reasonably practicable provided that she either has not made a valid application for a substantive visa or her visa application has been finally determined. Continue reading

News: Dyson Heydon to head unions Royal Commission

In a joint press release, the Prime Minister, Employment Minister and Attorney-General today made their expected announcement of a new royal commission into trade union governance and corruption. The announcement revealed the new commissioner:

The Government will also recommend that The Honourable John Dyson Heydon AC QC be appointed as Commissioner to lead this inquiry. A former High Court Judge, His Honour has a distinguished legal career and I am pleased to confirm his willingness to accept this appointment.

Dyson Heydon is the most recent judge to leave the High Court, reaching the constitutionally mandated retirement age of 70 on 1 March last year.

In some respects, the role will be a familiar one for Mr Heydon. Continue reading

News: Most bank fees not illegal penalties

I noted in December last year that the issue of bank fees was back before Gordon J in the Federal Court. Today, Gordon J has handed down her decision in Paciocco v Australian and New Zealand Banking Group Limited [2014] FCA 52. Her original decision on the matter, Andrews v Australian and New Zealand Banking Group [2011] FCA 1376, was appealed to to the High Court in Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30. The case was remitted back to Gordon J. Somewhat confusingly, Paciocco is another representative plaintiff but the action is still the same. Interestingly, the outcome of Paciocco is very similar to the trial decision in Andrews. In the trial decision in Andrews, Gordon J held that only late payment fees were illegal penalties, whereas honour fees, dishonour fees, overlimit fees and non-payment fees were not illegal penalties. Despite the High Court’s extension of the doctrine of penalties in 2012, the outcome of Paciocco was identical: only late payment fees were penalties. This must be a relief to the bank and to other commercial entities, but a disappointment to the consumers. Continue reading

Digging Down to the Principle of Legality: Lee v New South Wales Crime Commission

By Anna Dziedzic

Lee v New South Wales Crime Commission Case Page

In Lee v New South Wales Crime Commission [2013] HCA 39, the High Court split 4:3 on the application of the ‘principle of legality’ — a rule of statutory interpretation which requires parliament to use clear statutory language if it intends to restrict fundamental rights or depart from general principles of law. This post attempts to trace whether the differences between the members of the Court reflect merely a different interpretation of the NSW crime legislation in question, or lie at the deeper level of the rationale and operation of the principle of legality.

NSW’s criminal assets recovery legislation
Father and son Jason Lee and Seong Won Lee were arrested for money laundering, drugs and firearms offences. After they were charged — but before the completion of their trial — the NSW Crime Commission applied to the NSW Supreme Court for various orders under the Criminal Assets Recovery Act 1990 (NSW).

This Act sets out a scheme for the confiscation of property if the Supreme Court finds it ‘more probable than not’ that a person has engaged in serious crime related activity (s 3(a)). There is no requirement for the person to have been convicted of a criminal offence.

Section 31D authorises the Crime Commission to seek orders for the examination of a person about the person’s affairs or those of another. Such examinations are to be held before the Supreme Court. During an examination, the person must provide information even if it tends to incriminate him or her, but such information is not admissible in criminal proceedings (s 31A). In other words, the legislation abrogates the privilege against self-incrimination but provides ‘direct use’ immunity.

The Crime Commission applied for an order that Jason Lee and Seong Won Lee be examined on oath before the Court. The Judge hearing the application refused to make the order on the grounds that it would expose the Lees to questioning about matters relevant to the criminal charges they were facing, creating a real risk of interference in their ongoing criminal trials. The NSW Court of Appeal overturned this decision. Jason and Seong Won Lee then appealed to the High Court. Continue reading

News: Orr on WA Senate Election Case

Professor Graeme Orr at the University of Queensland recently published ‘In Whose Interest? The High Court and the WA Senate Vote’ on The Conversation, covering Australian Electoral Commission v Johnston. Orr’s piece is an incisive and clear explanation of what is a fairly convoluted case, and is very much worth a read. Orr also notes that a decision from Justice Hayne is expected to be handed down today, with two likely results: either Justice Hayne will declare the election void, or the case will continue, ‘with further legal argument and the parties scrapping over disputed ballots in the coming weeks or months’. As of posting, no media organisations have reported on the decision, but we’ll post links to news stories in the comments section when they do.

High Court to Examine Whether There is an Implied Term of Mutual Trust and Confidence in Australian Employment Contracts

By Adriana Orifici

The High Court has granted the Commonwealth Bank leave to appeal the decision of a majority of the Full Court of the Federal Court in Commonwealth Bank of Australia v Barker [2013] FCAFC 83 (Jacobson and Lander JJ, Jessup J dissenting), which recognised that an implied term of mutual trust and confidence (the Implied Term) exists in employment contracts in Australia. In the special leave application, the issues in dispute were described as giving rise to a ‘test case’.

In Australian employment contracts, terms may be implied in fact or in law.

The Implied Term is implied in law and requires that a party to an employment contract will not, without reasonable cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Continue reading

News: Canada’s top court to vote on its own composition

The Supreme Court of Canada, that country’s equivalent to Australia’s High Court, held a hearing this week on the interpretation of its own constituting statute, the Supreme Court Act. Or, to be more precise, some of its judges held that hearing. One of its judges, Nadon J, who was sworn in to the national court last October, did not sit – and, indeed, has never sat – because it is the legality of his appointment that his remaining colleagues must determine. One newspaper has likened the hearing to a tribal council on television’s Survivor.

The legal issue for decision is the statutory qualifications for appointment to the national court. Continue reading

News: Spry on High

I recently had cause to consult the new ninth edition of ICF Spry’s Equitable Remedies, a tome which I have found very helpful and learned on the topics of specific performance and injunctions in particular. After finding what I needed, I idly browsed through the Preface, as I have difficulty writing Prefaces and I like to see how other authors manage it. However, I do not think I will be taking my Preface-writing tips from Dr Spry. At xi – xii, he criticises the High Court and certain of its judges.

His observations appear to be coloured by the High Court’s decision in Kennon v Spry [2008] HCA 56, where it was decided that Dr Spry would have to pay his ex-wife $2.2 million, and that trust assets were part of the matrimonial property. Indeed, when talking of “eccentric judgments” by the High Court, in footnote 3 on page xi, Dr Spry refers to a judgment of Justice Strickland made in 2005 where he held ‘obviously incorrectly, both that a multilateral release under seal is able to be disregarded unilaterally by the releasor and, moreover, that assets controlled by the releasor in his fiduciary capacity as trustee are to be treated as his personal property.’ Although he does not note it, this was the first instance judgment made in relation to Dr Spry’s family trust which the High Court later upheld. Notoriously, Dr Spry wrote a series of letters to the High Court protesting the decision, letters which he acknowledged had been widely read in the legal profession. Continue reading

Fine Print Disclaimers May Not Protect Advertising from being Misleading: Australian Competition and Consumer Commission v TPG Internet Pty Ltd

By Dr Jeannie Marie Paterson and Veronica Wong

ACCC v TPG Internet Pty Ltd Case Page

Section 18 of the Australian Consumer Law (previously s 52 of the Trade Practices Act 1974 (Cth)) contains a broad ranging prohibition on conduct that is misleading or deceptive or likely to mislead or deceive. Misleading conduct in advertisements by traders causes harm by distorting the purchasing choices of consumers. This may reduce competition in the market by leading consumers to favour products that don’t have the features that are promoted. It may also increase costs for consumers, incurred either by entering into contracts that are not in their best interests or by incurring search costs that are wasted when they discover that the product does not exist as represented.

In Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54, the High Court confirmed importance of s 18 in protecting consumer interests by holding that so-called ‘headline’ advertising may be misleading notwithstanding the existence of a fine print disclaimer qualifying the representations in the headline statement.

The High Court also confirmed that deterrence should play a ‘primary’ role in setting the appropriate penalty to be imposed on a trader for a contravention of s 18. Specifically, the court should consider the need to deter offending conduct and any penalty imposed should be significant enough that it is not merely a cost of doing business. A majority of the High Court (French CJ, Crennan, Bell and Keane JJ; Gageler J dissenting) held that the Full Federal Court erred in setting aside the findings of primary judge and restored the pecuniary penalty of $2 million.

The decision of the High Court in TPG shows that whether an advertisement is misleading contrary to s 18 of the ACL should, as the words of the section suggest, be assessed by reference to the impressions conveyed by the advertisement in the circumstances in which it is delivered, and not merely by reference to the existence of technically correct information available to those consumers who choose to look for it or by reference to the presumed background knowledge of consumers. This approach, combined with the recognition that the penalty for contravention of s 18 is aimed at genuine deterrence of the offending behavior, is entirely consistent with the consumer protection purposes of the legislation. Continue reading

Is Victoria’s Constitution Invalid? Rutledge v Victoria

By Dr John Waugh

So you don’t want to pay your council rates, or your parking fines? If you live in Victoria, a bit of searching on the internet will provide you with what looks like a great solution: you don’t need to pay, because the Victorian Constitution is invalid. Anything that local councils do under its authority is invalid too. These arguments recently came before the High Court, not for the first time, in Rutledge v Victoria [2013] HCATrans 294 (Hayne J).

Mr Rutledge claimed that he wasn’t bound to pay his rates to the Greater Bendigo City Council, because the creation of the Council wasn’t properly authorised. In effect, the argument was that the Victorian Parliament couldn’t validly establish the Council, because the power it relied on was given by the Constitution Act 1975 (Vic), and that Act was invalid.

Law and mystery
Mr Rutledge had earlier made the same claims in the Victorian Supreme Court, without success. Now he took his case against the State of Victoria and the Greater Bendigo City Council to the High Court. They applied for judgment against him, on the ground that his action was bound to fail.

It’s not hard to see the appeal of arguments like these, at least until you look at the details. Arguments about constitutional validity turn up routinely in the news, and occasionally the courts do indeed overturn Acts of Parliament or government decisions on constitutional grounds. To the ordinary ratepayer, it’s not immediately apparent what the difference is between, on the one hand, arguments that the High Court has accepted in such cases as South Australia v Totani [2010] HCA 39 (the Finks Motorcycle Club case) and Williams v Commonwealth [2012] HCA 23 (the school chaplains case) and, on the other, the arguments put forward in Rutledge and similar cases.

From the outside, constitutional law is often mysterious. The subtle and complex grounds on which challenges succeeded in Totani and Williams seem to hold out the promise that similarly arcane reasoning might succeed in other situations. True, the consequences of accepting the arguments for Mr Rutledge would be sweeping, entailing the invalidity of Victoria’s constitution, but it’s possible to find comparable examples by reaching further back into history. Continue reading

Fly-In Fly-Out Workers Entitled to Accommodation while on Strike: Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd

By Adriana Orifici

CFMEU v Mammoet Australia Pty Ltd Case Page

The High Court’s final decision before the 2013 federal election concerned the highly political area of industrial relations law. The case, Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36, resulted in a win for the union and striking construction workers. While the then opposition leader was determined to not raise the prospect of industrial reforms during the election campaign, the new Coalition government has since sought to undo industrial initiatives of the past government. This might mean that the High Court’s decision is exposed to legislative reform, with mining lobbyists agitating for the government to bring legislation before parliament to overturn the decision.

In Mammoet the High Court unanimously decided that providing accommodation to striking employees is not a ‘payment’ that is prohibited by s 470(1) of the Fair Work Act 2009 (Cth) (Fair Work Act). This decision is significant because it confines the meaning of s 470(1), which prohibits an employer from making ‘a payment’ to an employee taking protected industrial action in relation to the ‘total duration’ of the action on that day. Moreover the effect of the decision is that if an employer fails to provide a striking employee with non-monetary benefits during a period of protected industrial action, this may constitute adverse action under the Fair Work Act or breach of the terms of a relevant industrial instrument. Continue reading

News: The High Court blurs the moment

Today’s High Court announcements on same-sex marriage, immigration detention and consumer law were doubtless disappointments for some. However, the one body that may be especially disappointed is the Court itself. The Canberra Times reports:

The court handed down its findings in the landmark case about 12.15pm, although a statement announcing the decision was accidentally published on the court’s website about 20 minutes earlier.

While French CJ’s announcement in Courtroom 2, reportedly greeted by silence and sobs, was anticipated by many legal observers, others knew exactly what the Chief Justice would announce. Continue reading

News: The High Court sets a time and venue

You are cordially invited…:

Please be advised that the High Court will deliver the following judgments in the next week:

Thursday, 12 December 2013 at 12:15 pm in Court No.2 Parkes Place, Canberra

Plaintiff M76/2013 v Minister for Immigration Multicultural Affairs and Citizenship & Ors(M76/2013)

Australian Competition and Consumer Commission v TPG Internet Pty Ltd(M98/2013)

The Commonwealth of Australia v. The Australian Capital Territory(C13/2013)

The third case is the same-sex marriage case. This announcement (from the High Court’s Judgment Delivery Notification alert service) confirms the ‘hopes’ that French CJ expressed at the end of Tuesday’s hearings. Barring an unlikely retraction, the validity of the ACT’s marriage law will be known on December 12. Indeed, it will be known not too long after 12.15pm that day. The announcement also reveals two further details: the venue and who else is in the order of ceremonies. Continue reading

News: The High Court sets a date

Yesterday’s hearing in the same-sex marriage case concluded with the following words (at 4:40:15 on the video) from French CJ:

The Court will reserve its decision. The Court hopes to be in a position to announce a decision on 12 December.

The first sentence means that the Court will not decide the case right away. That is typical in final hearings, although there are exceptions (see here and here.) However, the second sentence is not at all typical. In most cases, no indication is given and the judgment comes when it comes.  For example, there was no indication at the May hearing that today’s decision on patents would be the Court’s slowest judgment this year. The Court makes exceptions, though, if knowledge of the timing of the judgment would make a significant difference to someone. For example, at the conclusion of the 2010 hearings on the validity of laws on electoral enrolments, French CJ announced that he hoped that the Court would be in a position to announce a decision the next day, presumably saving the Commonwealth Electoral Commission a lot of money in planning for the contingency of a judgment of invalidity after the rolls had closed.

It is easy to see why the High Court announced a (tentative (UPDATE: see second comment below)) date for judgment in Cth v ACT. As has been widely reported, the announcement immediately resolved whether or not this weekend’s planned weddings in the national capital can go ahead (subject to the distant possibility of a speedier Court decision or the less distant possibility of a Commonwealth application for an injunction.) However, the particular date the Court set is a genuine surprise Continue reading

Bank fees back in court again

The class action involving bank fees is back in court again. Last year, the class action against banks was uplifted to the High Court in Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 3. It was remitted back down to the Federal Court for decision in light of the High Court’s decision last year and is presently being heard. The case involved the rule against penalties in contract. The essence of the rule is that parties may stipulate the amount payable for certain breaches of contract (known as ‘liquidated damages’), but if the amount payable is not a genuine pre-estimate of loss and is instead in terrorem of the other contracting party (i.e. designed to scare them into performance rather than compensate for loss) then the clause may be struck down by the law against penalties: see Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; (2005) 224 CLR 656, affirming Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

There has been intense media interest in the case (see here and here) and indeed, I was contacted by a number of outlets when the case went back to the Federal Court (for example, here and here) . As noted on Monday, there is a great deal of money at stake for both the banks and the customers. The present class action involves a $57 million claim, but other planned class actions are estimated to be worth $243 million, and more may be in the pipeline, depending on the success of this claim. Continue reading

News: Same-sex marriage hearing ins and outs

Today was to be the first of two days of hearings of Commonwealth v ACT, the High Court’s first foray into the issue of same-sex marriage. The dispute has been the subject of a number of excellent media pieces explaining the legal issues, most recently a preview on The Conversation by Sydney Law School’s Professor Anne Twomey, including a link to a paper she presented last week on the key statutory provision in the dispute, s. 28 of the ACT (Self-Government) Act 1988. This blog’s case page provides links to coverage  of the case on Opinions on High, the transcripts of hearings to date, the Commonwealth’s writ of summons and the High Court’ s own archive of orders and written submissions. Following a recent innovation, the Court will post videos of the hearings on its webpage.

The breaking news today is that the Court has reportedly reserved its judgment after just a single day. While we wait for the transcript of the proceedings, the other news at this stage is about who is involved in the hearing and who isn’t: who is on the bench? who is at the bar? and who is absent? Continue reading

Beyond Male and Female: Time for a Non-Specific Sex Category

By Anna Chapman

Earlier this month the High Court indicated it was prepared to hear a legal case that tests the ability of intersex Australians to be legally recognised as being neither male or female.

The High Court hearing will be the final decision in a claim initiated in 2010 by NSW resident Norrie, who had applied to the NSW Registry of Births, Deaths and Marriages for a certificate to register a change of sex from male to ‘non-specific’.

The evidence before the hearing was that Norrie (who does not use a last name) did not identify as either male or female. Although at birth Norrie’s sex had been recorded as male, as an adult Norrie had undergone medical procedures, and now self-identified — and was identified in the community — as androgynous.

Statutory declarations from Norrie’s doctors supported the registration of a change in sex to ‘non-specific’. The NSW Registrar initially granted Norrie’s application, but this was later revoked.

Norrie appears to be the first person in Australia to litigate for the right to be identified as being of ‘non-specific’ sex. This ground-breaking litigation squarely challenges the capacity of law to countenance sex and gender diversity. Continue reading

News: Go Star is No Go

On 11 September 2013, leave to appeal was granted in The Go Star v Daebo International Shipping Co Ltd, as noted on our case page. The case involved the charter of a ship, and an allegation that the new charterer had committed the tort of procuring a breach of contract. The appeal to the High Court sought to ascertain what was the lex loci delicti (in other words, the law of the place where the tort was committed). The appellants sought to argue that the relevant law was Chinese law.

However, the High Court has just revoked special leave to appeal on the basis that the case ‘was not a suitable vehicle’ to determine what the lex loci delicti was for the tort of procuring breach of contract. Continue reading

News: The ACT same sex marriage law and friends of the court

The High Court challenge to the ACT’s Marriage Equality (Same Sex) Act 2013 will be heard next week, beginning on Tuesday 3 December 2013. In advance of the hearing the High Court has published on its website the written submissions of the Commonwealth (the plaintiff) and the ACT (the defendant). Also included on the High Court’s website is a written submission prepared on behalf of the group Australian Marriage Equality Inc.  Australian Marriage Equality has applied to be heard as an amicus curiae. Continue reading

The High Court on Mandatory Sentencing in Magaming v The Queen: Only Part of the Story

By Anna Dziedzic and Sophie Walker

Magaming v The Queen Case Page

There is only one set of offences under federal law that attracts a mandatory sentence, and perhaps unsurprisingly these offences all relate to people smuggling. Upon conviction of a crime of aggravated people smuggling under the Migration Act 1958 (Cth), the sentencing judge must impose a jail term of at least five years. In Magaming v The Queen [2013] HCA 40, six of the seven judges of the High Court upheld the validity of this mandatory sentencing provision under the Australian Constitution. But this is only part of the story. After all, the principal character is Bonang Darius Magaming, a 19 year old Indonesian fisherman who was recruited to steer the boat which carried 52 asylum seekers to Australia. On 6 September 2010, his boat was detained by the Australian Navy near Ashmore Reef. Mr Magaming pleaded guilty to the aggravated offence of smuggling at least five people into Australia. At sentencing, the judge described Mr Magaming as ‘a simple Indonesian fisherman’ and explained that but for the mandatory sentencing provision, he would have imposed a lighter sentence. The judge said:

The seriousness of [Mr Magaming’s] part in the offence therefore falls right at the bottom end of the scale. … In the ordinary course of events, normal sentencing principles would not require a sentence to be imposed as heavy as the mandatory penalties that have been imposed by Federal Parliament. However, I am constrained by the legislation to impose that sentence.

Neither the pleadings, nor the judgment, nor media reports manage to fill in many of the gaps in Mr Magaming’s story. Why did he decide to join the crew? How was his mental and physical health? How did the imposition of a mandatory sentence which the judge considered well beyond the severity of the sentence that would have otherwise been imposed affect him? Continue reading

News: Busy court takes on eight more cases

High Court watchers sometimes speculate that the judges’ willingness to grant special leave varies inversely with their current level of business. Friday’s application hearings show no support at all for that theory.

Having just heard a complex challenge to NSW campaign funding laws and with closely watched expedited hearings on marriage equality and the WA Senate results in the pipeline, the Court granted eight applications for special leave – the highest number in a single day since September 2011 –  from the following (highly complex) cases: Continue reading

News: Justice Gageler Removes Himself from Unions NSW Case

There was a moment of relative drama at the start of Tuesday’s full court hearing of the challenge by various unions to NSW campaign financing laws. Neil Williams SC, counsel for the Commonwealth (intervening, along with several other states, in support of the NSW laws) told the Court that he needed to draw attention to information that he had just learnt: that a judge of the Court had written an advice that touched on the validity if the NSW law.

The Court adjourned ‘briefly’ to let the parties discuss the issues, but more than that appears to have happened. Continue reading

News: Same-Sex Marriage Case Hearing Set for 3 and 4 December

Monday’s second directions hearing in Cth v ACT fixed a firm date for the full court hearing: 3 and 4 December. That puts the hearing — and perhaps the Court’s orders — ahead of any possible marriages under the yet-to-commence new law’s one-month notice period.

Chief Justice French also settled eight questions for the Court to resolve. Unfortunately, the transcript only reveals the final two, concerning the Court’s ultimate orders and who pays the costs. The rest are contained in an unpublished amended statement of claim lodged by the Commonwealth on 28 October.

Nevertheless, the transcript did reveal two things that won’t be at issue in early December: Continue reading

The Misnomer of ‘Temporary Safe Haven’: Granting Visas ‘In the Public Interest’ as a Tool to Limit Asylum Seekers’ Access to Australia’s Protection: Plaintiff M79/2012 v Commonwealth

By Megan Driscoll

Plaintiff M79/2012 v Commonwealth Case Page

Asylum seeker policy has been a polarising subject in Australian politics for more than a decade and it continues to be so with the recently-elected Abbott government attempting to impose its perspective on the political debate on the topic by mandating asylum seekers arriving by boat be referred to as ‘illegal’. Consecutive federal governments have introduced increasingly harsh schemes to deal with the perceived influx of people arriving in Australian territorial waters by boat to seek asylum. The High Court is yet to hear a case challenging the legality of the current arrangement of transferring asylum seekers to Papua New Guinea, Plaintiff S156/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (transcripts of directions hearings here and here).

Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24 (Plaintiff M79) deals with another aspect of the asylum seeker statutory regime: the validity of a temporary safe haven visa granted to a person who had not made an application. In this instance, the Minister granted a temporary safe haven visa to the plaintiff, a Sri Lankan national who arrived by boat on Christmas Island in February 2010 seeking Australia’s protection. The validity of the visa depended on the criteria the High Court determined the Minister was bound to consider when granting the visa, and whether the Minister had addressed those criteria. A majority of the Court found that the sole criterion binding the Minister was whether or not it was in the ‘public interest’ and that it was within the Minister’s discretion to determine what factors were relevant to that interest. Interestingly, Plaintiff M79 could signify that the High Court is beginning to take a more deferential approach to ministerial conduct in deciding to grant or decline visa applications than it has in the recent past, including in the case that rejected the previous government’s so-called ‘Malaysian solution’. Continue reading

Google Searches and Misleading Conduct: Google Inc v Australian Competition and Consumer Commission

By Sarah Mulcahy and Jeannie Marie Paterson

Google v ACCC Case Page

In Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 the High Court held that Google had not engaged in misleading or deceptive conduct contrary to s 52 Trade Practices Act 1974 (Cth) (TPA) (now s 18 of the Australian Consumer Law (ACL)) in publishing ‘sponsored links’ in response to web page searches. The Australian Competition and Consumer Commission (ACCC) argued that Google engaged in misleading and deceptive conduct because its program allowed advertisers to enter the names of competitors as keywords so that a ‘sponsored link’ to the advertiser’s company would arise when the competitor’s name was entered into the search engine. Although the ‘sponsored links’ by the advertisers were misleading or deceptive, Google was held not to be responsible for the misleading or deceptive conduct because it did not author the ‘sponsored links’, nor did it endorse the misleading representations of the advertisers.

However, the decision does not relieve those who control or administer internet sites of liability for misleading or deceptive information posted on those sites. In this case, the links were generated by a computer algorithm over which Google had limited control. But in other situations where an administrator has greater control, it is possible that the administrator may still be liable for the misleading or deceptive conduct of posters or advertisers. Continue reading

News: The ACT Signals It May Dispute the Commonwealth’s Claims about Marriage

Last Friday saw the first ‘directions hearing’ in the Commonwealth’s High Court challenge to the ACT’s recently enacted marriage equality law. While the media focused on French CJ’s indication that the final court hearing — not, as some media suggested, the judgment — may occur in early December, the directions hearing also revealed that the Court may need to resolve some disputes about the role of Australian law in giving effect to the social institution of marriage.

The Commonwealth’s attack on the ACT marriage law centres on its argument that one object of the federal Marriage Act is to ‘address’ a ‘public interest’ in the ‘uniformity of marriage law throughout Australia’. In its statement of claim, it offered six propositions in support of that argument: Continue reading

News: Sex, No Specified Sex, and Same Sex: The ACT’s ‘Marriage Equality Laws’ and Norrie’s Case

In all the excitement within segments of the community over the passage of the ACT’s Marriage Equality (Same Sex) Act 2013 (ACT) there has been little critical consideration of the implications of the final changes made to the Bill that were introduced purportedly in order to further protect the laws against a High Court challenge by the Commonwealth government. The implications of those changes will be brought into view when the High Court decides whether to grant leave to appeal Norrie’s case (reported about here) on 8 November 2013. Continue reading

News: Commonwealth’s Same-Sex Marriage Challenge Submissions Now Online

Several media outlets have reported this morning that the Commonwealth yesterday lodged its writ of summons to challenge the validity of the Marriage Equality (Same Sex) Act 2013 (ACT) (ACT Marriage Act), which was passed by the ACT Parliament on Tuesday. The Act as passed is not yet available on the ACT Legislation Registry, but the text of the Bill as originally introduced can be accessed here). The full text of the writ and the Commonwealth’s submissions and related documents for the first directions hearing — which is reportedly scheduled for tomorrow — can be accessed here.

The Commonwealth seeks a declaration by the High Court that the ACT Marriage Act is invalid or, in the alternative, is void. At the first directions hearing, the Commonwealth will submit that the matter should not be remitted to a lower court on the basis that it is a matter of public importance. At a later directions hearing, the Commonwealth will seek a hearing before the Full Court at the earliest possible date. Continue reading

News: Supreme Court of Victoria to have blog by retired judge

In the wake of the High Court’s video debut last week, Chief Justice Warren of the Supreme Court of Victoria delivered the Redmond Barry Lecture earlier this week, and spoke about a concern that justice is not as transparent and open because of the decline of traditional print media and specialist court reporting. Accordingly, she said that the court would engage with the public through a number of alternative media. The Supreme Court already has a Twitter feed, and has started streaming sentencing remarks. It is also looking to stream criminal trials.

Most interestingly, the court plans to have a blog written by a retired judge ‘to create greater community understanding around controversial issues.’ Continue reading

News: Qld Premier: ‘New laws may be overturned by the High Court. It doesn’t matter.’

Last week saw the introduction and speedy passing of some extraordinary Bills in the Queensland parliament. A trio of laws targeting criminal associations follow a widely reported brawl between two bikie gangs outside a Broadbeach restaurant in late September, while a further law targeting sex offenders comes as the Attorney-General appeals against a ruling that same day permitting the release into the community of Robert Fardon, the first man detained as a dangerous sex offender following the expiry of his sentence. Foreshadowing the new bikie gang laws last week, Premier Campbell Newman reportedly told the media:

“We know that some of these things will be challenged… We know that some may be overturned. It doesn’t matter. We are going to continue to try again. There are many mechanisms that we are going to use.”

Indeed, High Court judgments both past and future loom over each law. Continue reading

Trident v McNiece twenty five years on

The seminal third party contract case Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44 was decided twenty five years ago. It continues to be relevant to legal practice and legal education. It has had a lasting and important impact on insurance contracts, as it decided that the doctrine of privity did not apply to those contract. Typically the doctrine of privity means that only the parties to a contract are bound by it, and a person who is not a party to a contract (a ‘third party’) cannot enforce it. For example, suppose that Alphonse makes a contract with Bertha to the effect that Bertha will give Clarence an annuity after Alphonse dies. If Alphonse dies, and Bertha refuses to pay the annuity to Clarence, Clarence can’t force Bertha to keep to the contract because he is not a party to it.

The case also remains a reminder that the High Court will, when presented with the right circumstances, rework the law to achieve a just and fair outcome. In this post I will explore how the decision on the doctrine of privity has become entrenched; and discuss the impact on the decision, in particular the judgment of Deane J on our understanding of the law of express trusts.

What happened in Trident? Continue reading

News: The High Court’s video debut

A month ago, the High Court announced that it would enter the video-publishing business, uploading videos of its Canberra hearings (other than special leave hearings) to its website. On Monday, the Court uploaded its first four videos to a new  ’recent AV recordings‘ entry under its webpage‘s ‘cases’ menu.  The Court’s prediction that the recordings’ availability would be ‘initially likely to be a few business days after hearings’ was too ambitious; it took eight business days for video for the first eligible hearing (BCM v R, including the bonus issuing of judgments in Bugmy and Munda) to be uploaded. However, the most recent hearing of the session (Karpany v Dietman) took just three business days, confirming its prediction that ‘[t]his delay is likely to be reduced as Court experience grows.’

Interestingly, the new page sets out, for the first time, the Court’s ‘terms of use’, which indicate that none of its videos will be going viral anytime soon: Continue reading

Freedom to Preach in Rundle Mall: A-G (SA) v Corporation of the City of Adelaide (‘Corneloup’s Case’)

By Professor Adrienne Stone

A-G (SA) v Corporation of the City of Adelaide Case Page

Two weeks ago, the Federal Court dismissed a challenge by members of Occupy Melbourne against the enforcement of bans on camping and advertising in inner Melbourne’s squares and gardens. Justice North relied in large part on a High Court ruling from March, concerning Samuel Corneloup and his brother Caleb, members of a street church that regularly engaged in preaching on the Rundle Mall in Adelaide. Their noisy preaching gave rise to one of two important freedom of political communication cases in the High Court this year: A-G (SA) v Corporation of the City of Adelaide [2013] HCA 3 (‘Corneloups Case’). (The other, Monis v The Queen [2013] HCA 4, is discussed here.)

Adelaide’s preaching ban
Preaching on the Adelaide mall (like other ‘roads’) is subject to Council By-Law No 4 which (subject to exceptions for election campaigning) provides that ‘[n]o person shall without permission on any road

2.3       preach, canvass, harangue, tout for business or conduct any survey or opinion poll …

2.8       give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter.

Disputes arose between the Corneloup brothers and the Adelaide City Council over the Corneloups’ preaching that resulted, first, in the conviction of Samuel Corneloup in the Magistrates Court of South Australia in 2010 and, second, in separate proceedings brought by the Council to restrain the Corneloups and others from preaching on the Rundle Mall. Continue reading

News: Latest special leave grants favour the Top End

At hearings in Sydney and Canberra today, the High Court granted special leave to four new cases (in contrast to six new cases at each its previous two sessions.) Two of the cases – both particularly interesting ones, in my view – are appeals from the Northern Territory Supreme Court. It’s been over three-and-a-half years since the High Court last granted leave to a Northern Territory case. The Court typically averages a little under one case a year from that jurisdiction.

The four special leave grants are for appeals from the following decisions: Continue reading

News: Initial reactions to Bugmy

The High Court today released its highly-anticipated judgment in Bugmy v The Queen,[2013] HCA 37, previewed here, examining the so-called Fernando principles concerning the sentencing of indigenous Australians. The defendant, William David Bugmy, succeeded in his appeal. However, as is often the case with High Court judgments, the true significance of the case is harder to parse.The Court didn’t restore Bugmy’s original (lower) sentence, but rather told the NSW Court of Criminal Appeal to reconsider the Crown’s criticism of that sentence afresh. More importantly, the Court rejected both the Court of Criminal Appeal’s interpretation of the Fernando principles and a number of suggested refinements of those principles proposed by Bugmy.

The case has generated interest online, captured in discussions on social media. Immediate reactions on Twitter fell into two camps.  Continue reading

Justice Gummow Reflects on His Time on the High Court

By Martin Clark

On Friday 13 September 2013 I was lucky enough to spend an hour interviewing Professor William Gummow AC about his time on the High Court of Australia (1995–2012).

Professor William Gummow AC retired in October 2012 from the High Court after 17 years on the bench. Prior to that he sat on the Federal Court for ten years, and before that had been an influential and highly-regarded member of the Sydney Bar, a partner at Allen Allen and Hemsley, and also lectured part-time at the Sydney Law School from 1965 until 1995. He is now Professor of Law at the Sydney Law School and the Australian National University.

In this extensive interview, Professor Gummow discusses a wide range of topics, including the  similarities and differences between the judges and processes of the High Court of Australia and other apex courts around the world, his views on advocacy before the High Court, and changes in the legal profession. He also offers his thoughts on the enduring importance of several great Australian judges, including Sir Owen Dixon, Sir Victor Windeyer, Sir Garfield Barwick and Sir Nigel Bowen. Continue reading

News: Negligence, public misfeasance and the conduct of PrimeSafe

Over the weekend ABC’s Landline broadcast a story about the circumstances leading to the closure of a rural Victorian abattoir, in particular the role of the State authority PrimeSafe and the economic harm caused by the closure to small agribusinesses in the surrounding district. The premise for closing the abattoir was that animals were being treated cruelly. However, cruelty was never proven against the business. I was asked to offer a view about the potential causes of action that the Giles family that owned the abattoir might have against PrimeSafe to recover losses arising from their lost business.

I note (at about 40 minutes) that there are two possible causes of action available to the owners of the abattoir business: negligence and public misfeasance. Continue reading

Reflections on the Local Government Referendum That Wasn’t

By Laureate Professor Cheryl Saunders AO

The latest proposal to amend the Commonwealth Constitution to ‘recognise’ local government may go down in history as one of the most inept attempts at constitutional change in Australia. Insofar as it has an indirect link to the decisions of the High Court in Pape v Commissioner of Taxation [2009] HCA 23 and Williams v Commonwealth [2012] HCA 23 it merits a post on Opinions on High. In any event, there are lessons to be drawn from the history of this proposal, as a guide to the formulation and conduct of future referendum proposals.

Constitution Alteration (Local Government) 2013 (Cth) passed both Houses of the Commonwealth Parliament on 24 June 2013. The impetus for it derived from a long-held desire on the part of local government to be recognised in the Commonwealth Constitution as the third arm of Australian government. This project is fraught because recognition almost inevitably involves substantive change of some kind in the operation of the Australian federation, in which the relations between the other two arms of government already is under strain. A proposal cast in terms of symbolic recognition was rejected at referendum in 1988. An earlier proposal to establish a direct financial relationship between the Commonwealth and local government was rejected in 1974 (see here). Continue reading

News: Marriages in the ACT

The ACT government has introduced a bill into the ACT Legislative Assembly that proposes to create a new species of marriage in Australia. Almost instantly the prospect of the federal government taking action to overturn the law once it comes into effect was the subject of news attention. The constitutionally-minded turned their attention to the possibility and prospects of the High Court being called upon to determine the validity of this new form of marriage. See comments by Professor George Williams (also here) and Crispin Hull. We have previously noted that the ACT’s proposed laws depends on advice received from High Court Justice Gageler before he took on his current role. Continue reading

The MRRT Survives, For Now: Fortescue Metals Group Ltd v Commonwealth

By Professor Michael Crommelin AO

Fortescue Metals Group Ltd v Commonwealth Case Page

The Minerals Resource Rent Tax Act 2012 (Cth) (MRRT Act) has been surrounded by political and legal controversy throughout its short life. The High Court’s unanimous rejection of a recent constitutional challenge has resolved the legal controversy. It remains to be seen whether, and when, the incoming Federal Government may resolve the political controversy by fulfilling its election pledge to repeal the Act.

In Fortescue Metals Group Ltd v Commonwealth [2013] HCA 34, the plaintiff challenged the constitutional validity of the MRRT Act and three related Acts which imposed the MRRT (MRRT Legislation) in proceedings commenced in the High Court of Australia. The MRRT Act provides that a miner is liable to pay minerals resource rent tax (MRRT) assessed in accordance with the MRRT Act.

The plaintiff argued four grounds for invalidity of the MRRT Legislation: (1) discrimination between States contrary to s 51(ii) of the Constitution; (2) preference to one State over another contrary to s 99 of the Constitution; (3) contravention of the Melbourne Corporation doctrine established in the State Banking Case [1947] HCA 26; and (4) contravention of s 91 of the Constitution which confirms the authority of a State to grant aid to mining. It is notable that the plaintiff did not invoke s 114 of the Constitution which prohibits the imposition by the Commonwealth of any tax on property of any kind belonging to a State.

The challenge failed on all grounds. Continue reading

News: Bell Group case may settle

The High Court recently granted leave to appeal on the Bell Group case, which, as the case page notes, is part of the infamous, long-running Bell litigation, involving twenty applicant banks and thirty respondent companies and liquidators. There have been rumours of settlement since July, and recent reports suggest that the case has been adjourned for six months and withdrawn from the High Court list in preparation for a settlement. If settlement occurs, this may be good news for Western Australians, as the litigation has been funded by the WA State Government-owned Insurance Commission of Western Australia (ICWA). Western Australian motorists had to pay an annual levy of $50 on third party insurance from 1993 to 1996 to assist ICWA, known as the WA Inc levy. Continue reading

News: High Court to publish videos of Canberra hearings

In a media release today, the High Court announced that it will make audio-visual recordings of hearings held in its Canberra building available on its website from 1 October 2013, supplementing written transcripts of the Court’s hearings that have been published on Austlii since 1994. The videos will be made available a few days after the hearing (to allow for confidential information, such as the suppressed names of witnesses, to be edited out), but the release observes that the delay is likely to reduce as experience with the procedure increases. The new policy applies to ‘all Full Court hearings in Canberra, other than Applications for Special Leave’.

The release notes that ‘[t]he Court’s decision to take these steps was made having regard to the nature of its jurisdiction and is not intended to set any precedent for other courts’. However, it does partially follow precedents set in other top national courts. Continue reading

News: Six more appeals to be heard by the Court

The High Court spent three days in the past week (including two in Perth) sorting through applications to bring appeals before it. The Court turned down some high profile cases (including The Age’s battle to resist revealing its sources for its reporting on MP Joel Fitzgibbon and businesswoman Helen Liu and Hancock Prospecting’s attempt to retain a stake in a Pilbara iron ore venture), while agreeing to hear appeals from six judgments: Continue reading

News: Alcoholic drink branding, trademarks and passing off

One must wonder whether sometimes actions in passing off or trademark infringement are used in an oppressive way. A group of English parents whose children attended a school called Belleville Primary set up a micro-brewery called Belleville which produces Belleville pale ale. They now face legal action from US drinks manufacturer Anheuser-Busch, the makers of Budweiser. Anheuser-Busch claims that there is a chance that Belleville pale ale may be confused with its product, Belle-Vue, a fruit flavoured beer. Continue reading

News: The Tampa affair in the High Court

The 2001 federal election was shaped by the maritime rescue of 438 people by a cargo vessel, the MV Tampa. When the ship’s captain, Arne Rinnan, attempted to take the rescuees to Christmas Island, the Howard government responded by closing the port, an action whose validity under domestic law was upheld by the Full Court of the Federal Court (including then Justice Robert French).

This week, two aspects of the Tampa affair’s aftermath reached the High Court.  Continue reading

News: Split High Court judgment may complicate Skype scandal verdict

Yesterday, the highly publicised ‘Skype scandal’ within the Australian Defence Force Academy yielded a guilty verdict against two cadets accused of broadcasting otherwise consensual sex on Skype without the knowledge of one of the participants. However, a rare split High Court decision on a constitutional point from earlier this year — Monis v Queen; Droudis v Queen [2013] HCA 4 — discussed by Professor Adrienne Stone on this blog in April, looms over part of the verdict. Continue reading

News: The final campaign week and the High Court hears three asylum seeker cases

Next week is the final week of the 2013 federal election campaign. It has been a campaign where immigration issues have been prominent despite the Rudd government attempting to neutralise the politics of irregular migration by entering into the highly publicised arrangement with Papua New Guinea for that country to detain asylum seekers and settle refugees who arrive in Australia by sea. While other matters of policy and electioneering might occupy news bulletins next week, irregular migration and refugee laws will be front and centre before the High Court. Continue reading

The High Court to Soon Decide on Treatment of Aboriginality in Sentencing Decisions: Bugmy v The Queen

By Cait Storr

Bugmy v The Queen Case Page

The case of Bugmy v The Queen provides a rare opportunity for the High Court to offer guidance on how an offender’s Aboriginality should be incorporated into the set of considerations a judge must balance when passing sentence. Principled justifications for considering Aboriginality as a potential mitigating factor are not new to Australian case law, however the High Court — as is often the case with substantive issues of criminal law — has not had the opportunity to clarify the principles that should pertain to any such consideration. The 1992 decision in Fernando v The Queen (1992) 76 A Crim R 58 by the New South Wales Court of Criminal Appeal (NSWCCA) has provided the clearest guidance to judges seeking to uphold the common law notion of ‘individualised justice’ for criminal offenders. The Fernando principles are in effect an elucidation of an existing common law requirement to consider the subjective circumstances of the offender. They do not, however, shed much light on how this mindfulness for an offender’s Aboriginality should interact with other basic goals of sentencing, such as consideration of the objective seriousness of the offence, and the need for deterrence. This is the key issue in Bugmy v The Queen.

The case was heard by the High Court on 6 August 2013 (see here), and the matter was adjourned with the Court reserving its keenly awaited decision. Continue reading

Precedent on High: The High Court of Australia and ‘Seriously Considered Dicta’

By James Lee

This post considers a specific feature of the High Court of Australia’s approach to precedent. Since the 2007 decision in Farah Constructions v Say-Dee [2007] HCA 22, the Justices have moved to restrict the scope of the lower courts to develop the law, by asserting that lower courts are bound by ‘seriously considered dicta’ ([134] and [158]) of the High Court, admonishing courts below for raising new arguments in the course of judgments. Keith Mason has claimed that, in so doing, the High Court has effected a ‘profound shift in the rules of judicial engagement’ (Keith Mason, ‘President Mason’s Farewell Speech’ (2008) 82 Australian Law Journal 768, 769, see the original remarks here at 18–22). An excellent feature-length examination of the issues has been provided by Associate Professor Matthew Harding and Professor Ian Malkin (‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 239). In this short post, I argue that the approach has uncertain implications for the Australian doctrine of precedent and the scope for intermediate courts of appeal to develop the law.

What is the High Court’s approach? Farah v Say-Dee and subsequent cases
Farah v Say-Dee concerned a claim for a variety of equitable reliefs in respect of various properties which were the subject of a joint venture development scheme between the claimant and defendant. The planning application for the property was unsuccessful, because the site was considered too small to ‘maximise its development potential’. During the application process, the defendant learned that permission was more likely to be granted if adjacent properties were included in the planned development. The defendant bought these properties through a company which he controlled. The claimants contended that these properties had been acquired through a breach of fiduciary duty and that consequently the recipients had knowingly received the properties, which were held on constructive trust for the claimants. The Court of Appeal of the Supreme Court of New South Wales allowed the claimant’s claim, reversing the judge’s finding that there had been no breach of fiduciary duty, and instead held that the defendants were liable in knowing receipt. The Court of Appeal also found that a strict liability claim in unjust enrichment was available. Continue reading

News: Former High Court judge at centre of Victorian parole debate

A former High Court judge, Ian Callinan QC, is currently playing a central role in an issue of intense political controversy in Victoria: the state parole board’s failure to revoke the parole of Adrian Bayley in the period leading up to his murder of Jill Meagher. His review of the board’s operation is widely quoted in today’s press prior to its formal release. Continue reading

Thieving Lawyers: Trust and Fidelity in the High Court: Legal Services Board v Gillespie-Jones

By Associate Professor Elise Bant

Gillespie-Jones Case Page

The elusive nature of the Quistclose trust has spawned much comment, analysis and speculation, by judges and scholars in equal measure, since its genesis in Barclays Bank Ltd v Quistclose Investments Ltd [1968] UKHL 4; [1970] AC 567. A Quistclose trust is a trust which may arise when a loan is made for a specific purpose (and is often asserted by a lender when the purpose of the loan fails) but its precise nature is highly debatable. In that context, those of us who had hoped for a definitive clarification, or even some in-depth discussion, of the doctrine in the much-awaited High Court decision of Legal Services Board v Gillespie-Jones [2013] HCA 35 may be forgiven for feeling slightly disappointed. However, the Court’s circumvention of that debate (explicable in the light of its reasoning, discussed below) is offset by some very interesting observations about the interaction of judge-made law and statute, and in particular about the need for ‘coherence’ across the two sources of law, that merit attention in their own right.

How did the case arise? Lawyers stealing from other lawyers
A client facing criminal proceedings paid monies to his solicitor on to cover legal costs associated with his defence. A barrister was retained and performed a variety of services for the solicitor on the client’s behalf, but was not yet paid for those services. Pursuant to s 3.3.2 of the Legal Profession Act 2004 (Vic) (LPA) the monies constituted ‘trust money’ and were to be held for the benefit of the client. Under s 3.3.14, those monies could only be dealt with by the solicitor pursuant to and in accordance with the client’s direction. However, the solicitor stole most of the trust money, leaving the respondent barrister seriously out of pocket. The barrister made a claim for compensation for ‘pecuniary loss’ caused by the solicitor’s default under the Legal Practitioners Fidelity Fund, a fund maintained by the Legal Services Board (the appellant) under the LPA. A key question was whether the barrister had to show a proprietary interest to successful establish his claim, and if he did, whether he could make out a proprietary interest in the funds held by the solicitor. The appellant at first instance rejected his claim. The respondent successfully appealed to the County Court of Victoria, and won again on appeal to the Court of Appeal of the Supreme Court of Victoria. This run of success ended, however, before the High Court, which unanimously allowed the appellant Board’s appeal. Continue reading

News: Fathers’ Day in the High Court

Today, the High Court will hear an application from Robert Farquharson, who was convicted in 2010 of murdering his three children by deliberately driving into a dam near Winchelsea, Victoria on Fathers’ Day 2005. The events at that dam continue to be of great interest to many Australians, but that is not a typical reason for a criminal defendant to get a full hearing before the national court. Continue reading

Voices on the Right to Silence: X7 v Australian Crime Commission

By Anna Dziedzic

X7 v Australian Crime Commission Case Page

The right to silence has both champions and critics. For some, this rule of criminal procedure is a fundamental bulwark of liberty; for others, including philosopher Jeremy Bentham, it is ‘one of the most pernicious and most irrational notions that ever found its way into the human mind’. In some ways, where you stand between these disparate views might depend on where you sit.

For those, like X7, who sit in the dock facing charges that carry a possible life sentence, having the choice whether to speak or not can provide an important way to protect their personal and legal rights. On the other hand, the work of organisations like the Australian Crime Commission (ACC) which sit at the pinnacle of the nation’s efforts to investigate serious and complex criminal activity, might be significantly impeded without the ability to lawfully require people they suspect of crimes to answer their questions. In the recent case of X7 v Australian Crime Commission [2013] HCA 29, the High Court was asked to mediate between these perspectives, providing the Court with the opportunity to consider the meaning and importance of the right to silence in Australia’s criminal justice system. Continue reading

News: Your Right to be on the Electoral Roll and Rowe’s Case

By Professor Miranda Stewart

The electoral roll closes by 8pm today, Monday 12 August 2013, seven days after the election writs were issued. If you have not registered by this time, you will not be eligible to vote in the forthcoming election on 7 September.

It seems appropriate to commemorate today the victory in Rowe’s Case [2010] HCA 46 in which the High Court struck down as unconstitutional, a law by which the electoral roll was closed on the day of issue of the electoral writ (usually, the day that the election is announced). The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), passed under the Howard government, had amended the Electoral Act 1918 (Cth), resulting in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details. Previously, the electoral roll remained open for a period of seven days after the issue of the writ.

The victory reinstated the previous deadline for closure of the roll, and the High Court heard the case urgently and issued its decision within a record time, to enable an estimated 100,000 voters who were not on the roll, including many young people voting for the first time, to register to vote in the 2010 election. The plaintiff, Shannen Rowe, had turned 18 just a month before the 2010 election was called by then-Prime Minister Julia Gillard. Of course, she had not been old enough to vote in any previous election. Continue reading

News: A rare High Court appeal from a non-Australian court

Yesterday, three judges of the High Court played an unusual role: hearing an appeal from a non-Australian court. The court in question is the Supreme Court of Nauru and the appeal was from the verdict of its Chief Justice (former Victorian judge The Hon Geoffrey Eames AM QC) that a husband and wife were guilty of raping the wife’s niece. Continue reading

Casino Not Liable for Bets Made by Problem Gambler: Kakavas v Crown Melbourne Ltd

By Jeannie Marie Paterson and James Ryan

Kakavas v Crown Melbourne Ltd Case Page

Issues of gambling, the responsibilities of gaming venues and the regulation of problem gambling have been prominent in recent political debate. Kakavas v Crown [2013] HCA 25 concerned the claim by a so-called ‘high roller’ gambler, Harry Kakavas, to $20 million dollars while gambling at Crown Casino in Melbourne between 2004–06. Kakavas claimed this amount on the basis that Crown had engaged in ‘unconscionable conduct’. Unconscionable dealing is a concept based in equity and given statutory force under s 20 of the Australian Consumer Law (Cth) (previously s 51AA of the Trade Practices Act 1974 (Cth)). As explained by Justice Mason in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14, the equitable doctrine of unconscionable dealing will set aside a transaction:

whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created.

Kakavas was seeking to ‘set aside’ his decision to gamble $20 million with the result that the money he had gambled would be returned to him.

Kakavas’ claim failed for two reasons. First, the High Court doubted that Kakavas suffered from a ‘special disability’ in the sense required to make out unconscionable conduct. Secondly, even Kakavas did suffer from a special disability, the High Court found that Crown did not actually know of it at the time when the allegedly unconscionable conduct took place. Critically, the High Court said that a trader in the position of Crown had to have actual knowledge of the disadvantage of a problem gambler such as Kakavas. Continue reading

News: Waiting for the mining tax case and forgetting about any carbon price case

Tomorrow we will learn of the High Court’s decision on the challenge by Fortescue Metals and others to the Commonwealth’s mining tax legislation – the Minerals Resource Rent Tax Act 2012 (Cth). The court heard that case in March this year. Professor Michael Crommelin from Melbourne Law School will be writing about the Fortescue case for Opinions on High. Continue reading

Turning Points in the High Court: Remembering the Koowarta and Tasmanian Dam Cases

Peter Dombrovskis, ‘Rock Island Bend, Franklin River, Southwest Tasmania’ (1983).

By Dr Ann Genovese

2012 and 2013 mark the respective 30th anniversaries of the High Court’s decisions in Koowarta v Bjelke-Petersen [1982] HCA 27 and in Commonwealth v Tasmania [1983] HCA 21 (the Tasmanian Dam case).

Each of these cases is commonly understood to represent a turning point in Australia’s legal and political history: a shift to a different form of political engagement on complex questions about race, and the environment; and a shift in what those engagements could signify, nationally, and internationally. Cumulatively, the cases are also understood as marking a decisive jurisprudential turn, a consideration of a different engagement by the High Court of Australia with both international law and the politics of federal constitutionalism.

After 30 years, it is timely to reflect on the ongoing significance, in political and legal terms, of these two ground-breaking cases; yet also to review the complex ways in which the cases are remembered or understood as turning points. Two symposia hosted at the Melbourne Law School commemorated these anniversaries and the proceedings will be published in two special issues of the Griffith Law Review.

These symposia placed the cases into conversation with each other for the first time, opening new ways of approaching and writing about law’s authority and narratives as constitutive of an evolving Australian national identity into the 21st century. Continue reading

Protecting the Integrity of Securities Markets — What is an ‘Artificial Price’?: DPP (Cth) v JM

By Professor Ann O’Connell

DPP (Cth) v JM Case Page

In 1814 a uniformed man posing as ‘Colonel du Bourg’ arrived at Dover bearing news that Napoleon had been killed and his armies defeated. The effect on the London Stock Exchange was dramatic — more than £1.1 million of government bonds were sold in one day before it became clear that the news was a hoax. Captain de Berenger, who posed as the Colonel, was charged with having conspired by spreading false rumours to increase the price of the bonds so that he (and others) could profit from the sale (R v de Berenger (1814) 3 M&S 67). More recently, in January of this year an anti-coal activist released a fake press release purporting to be from the lenders to a mining project to be carried out by listed company, Whitehaven Coal Ltd. The press release announced that the lender was withdrawing from the project for ‘ethical reasons’. The effect was to cause panic selling and the price of Whitehaven’s shares fell dramatically before a trading halt was implemented.

In DPP (Cth) v JM [2013] HCA 30, the High Court considered the legality of a less dramatic way of affecting the securities market: strategically buying shares. The Commonwealth Director of Public Prosecutions alleges that JM asked a family member to buy shares in a company for the purpose of lifting its share price sufficiently high to prevent a bank from requiring extra collateral for a loan he took out to buy call options in the same company. JM has been charged with the crime of creating or maintaining an ‘artificial price’ in a financial market. In advance of his trial, the High Court agreed to resolve a dispute about the meaning of ‘artificial price’. Continue reading

Fiction and Certainty in Social Security Prosecutions: DPP (Cth) v Keating

By Natalie Burgess

DPP (Cth) v Keating Case Page

In DPP (Cth) v Keating [2013] HCA 20, the High Court ruled that federal legislation imposing a backdated duty on social security recipients to inform Centrelink of changes in their circumstances had failed in its goal of shoring up the prosecution of past instances of social security fraud by omission. The Court held that an omission or failure to act can only attract criminal responsibility when, at the time of the failure, there was an existing legal duty to perform the act. The case sustains the importance of certainty in the criminal law, particularly the role it plays in the purpose and interpretation of the Commonwealth Criminal Code Act 1995 (Cth), but leaves aside some important constitutional questions involving the scope of the Commonwealth legislature’s power to enact retrospective criminal law. Continue reading

Remembering the Tasmanian Dam Case

Peter Dombrovskis, ‘Rock Island Bend, Franklin River, Southwest Tasmania’ (1983).

By Martin Clark

Commonwealth v Tasmania Case Page

On 1 July 1983, the High Court sat in Brisbane to hand down its decision in Commonwealth v Tasmania [1983] HCA 21. Popularly known as the Tasmanian Dam case, the decision is a landmark in Australian constitutional and environmental law. On 28 June 2013, 30 years after the decision was handed down, the Melbourne Law School hosted a symposium ‘Turning Points: Remembering Commonwealth v Tasmania (1983) 158 CLR 1’, to commemorate and reflect on the significance of the Tasmanian Dam case for Australian society, the environment and Australian law. The private symposium was convened by Dr Ann Genovese (Melbourne Law School). It brought together significant figures involved in the case, academic lawyers, historians and environmental activists, and the papers presented will be published in a forthcoming issue of the Griffith Law Review. For more on the Turning Points symposium, see here.

Continue reading

Organised Crime Control and the Promise of Procedural Fairness: Condon v Pompano Pty Ltd

By Laureate Professor Cheryl Saunders AO

Condon v Pompano Pty Ltd Case Page

Condon v Pompano Pty Ltd [2013] HCA 7 is the latest in a line of cases invoking the Kable principle to challenge atypical judicial processes mandated by State Parliaments for the purposes of crime control. In issue this time was the Criminal Organisation Act 2009 (Qld). The High Court challenge was brought by the Finks Motorcycle Club and Pompano Pty Ltd (said to be linked to the Finks’ Gold Coast ‘chapter’), bodies that the Queensland police claim are involved in organised crime.

In three of the earlier cases, organised crime control laws had been held to be incompatible with the maintenance of the integrity of State courts; a federal constitutional requirement since 1996, when the High Court struck down a statute permitting the NSW Supreme Court to order the continued detention of a particular soon-to-be-released prisoner, Geoffrey Wayne Kable (International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; South Australia v Totani [2010] HCA 39; Wainohu v New South Wales [2011] HCA 24).

In another two earlier cases the laws had been construed so as to preserve their validity (Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4). The result was a messy jurisprudence, in which different judges relied on different features of the challenged legislation to draw what sometimes appeared to be fine lines between what was acceptable and what was not.

In Pompano a High Court of six Justices unanimously upheld the validity of the Queensland Act, with some important variations in their reasons. The case offers some insights into the significance of procedural fairness as a defining characteristic of a court. For the moment, however, given differences in emphases amongst the six judges, the scope of the Kable principle remains as indeterminate as ever, exacerbating the inevitable difficulty of predicting its application in practice. Continue reading

The High Court and the Doctrine of Precedent

By Associate Professor Matthew Harding

The doctrine of precedent is a fundamental constraint on judicial decision-making in Australia. The general idea behind the doctrine of precedent is that judges, when they are deciding cases, must pay proper respect to past judicial decisions. Sometimes this means that judges are bound to apply the reasoning of judges in past cases — in other words, ‘follow’ past decisions — when deciding cases that raise similar facts; sometimes it means that judges must take seriously the reasoning of judges in past cases even if they are not bound to apply that reasoning. The moral value of the doctrine of precedent is in the way it serves the political ideal of the rule of law; according to that ideal, institutions of the state, like courts, should strive to ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties. Continue reading

Unreasonable Refusal to Adjourn: Minister for Immigration and Citizenship v Li

By Sara Dehm and Cait Storr

Minister for Immigration and Citizenship v Li Case Page

The administration of migration and asylum applications is one of the most politicised powers of the Commonwealth government. Not only are the administrative decisions of the Department of Immigration and Citizenship frequently on the front pages, but the processes of appeal — via the Refugee and Migration Review Tribunals through to the Federal and ultimately the High Court — can also expose the sometimes hazy character of the separation of powers in Australia.

Judicial review of administrative decisions on migration and refugee status is now one of the key drivers of Australian administrative law. For instance, the question of how much scope the courts have to review the decisions of the Refugee Review Tribunal and the Migration Review Tribunal, particularly in the exercise of their respective statutory discretions as delegated under the Migration Act 1958 (Cth), has generated a significant line of High Court cases on procedural fairness and the fair hearing rule, from Eshetu  through Miah to SZGUR. The legislature has made numerous attempts to limit the application of common law principles of procedural fairness to various delegated powers of the Migration Review Tribunal. Whether and to what extent common law principles of unreasonableness apply to such delegated decision-making has emerged as an area of key contention in these cases.

The decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 adds to this small but growing body of law which serves to refine the principles, operation and scope of what is unreasonable conduct of decision-makers within the increasingly politicised statutory patchwork that the Migration Act 1958 has become. The UK case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 is frequently taken as the departure point for determining the standard of ‘unreasonableness’ for courts and tribunals. In Wednesbury, Lord Greene MR famously stated that the courts can intervene where a decision by a Minister or government body ‘is so unreasonable that no reasonable authority could ever have come to it’, a definition frequently critiqued as circular. Australian courts have seemed reluctant to either reject Wednesbury reasonableness because of this uncertainty or to expand its application. Continue reading

The Charge for Serving Fat Tony: Elias v The Queen; Issa v The Queen

By Associate Professor Jeremy Gans

Elias v The Queen; Issa v The Queen Case Page

This year, the High Court heard its first ever case arising from Melbourne’s 1990s ‘gangland war’. Over seven years ago, Tony Mokbel, one of that war’s most prominent identities, failed to appear in Victoria’s Supreme Court part way through his trial for importing drugs in breach of federal law. Some initially speculated that, like many gangland figures before him, ‘Fat Tony’ had become one of the war’s victims. When he was found (alive) in Greece, it became clear (at least in hindsight) that the Supreme Court itself had erred in ruling that Mokbel was not a sufficient flight risk to justify keeping him in custody throughout a prosecution that had been much-delayed due to corruption in the police’s drug squad. Mokbel is now serving a 30 year sentence for drug offences committed before and during his escape, his sister-in-law received a two year sentence for defaulting on his bail surety and at least ten others were prosecuted and convicted for assisting in his escape.

The High Court appeal was brought by two brothers who sheltered Mokbel for months in Victoria, transported him across the country, hired a crew for his voyage to Greece and provided him with forged passports. For their efforts, George Elias and Chafic Issa were each sentenced to eight years imprisonment by the Victorian Supreme Court, one of the highest sentences ever awarded in Australia for attempting to pervert the course of justice. Their sentences were upheld in Elias v The Queen; Issa v The Queen [2013] HCA 31, with the High Court ruling that it did not matter that federal law at the time provided for only a five year maximum sentence for the same offence. Continue reading

Duty to Warn and Causation: Wallace v Kam

By Professor Loane Skene

Wallace v Kam Case Page

The recent case of Wallace v Kam [2013] HCA 19, a unanimous judgment of the High Court of Australia, continues a trend of a rigorous application of the principles of causation in duty to warn cases within the context of medical negligence. While emphasising that patients have a legal right to make their own medical decisions, and that doctors have a legal duty to inform patients about material risks of a proposed treatment (as stated in Rogers v Whitaker [1992] HCA 58) the judgment calls for more careful scrutiny of whether doctors should be held responsible for the patient’s injury or loss in certain duty to warn cases.

The judgment also answers a vital question about causation. If a doctor negligently does not inform a patient about two or more material risks of a treatment, is the patient entitled to compensation if he or she would have agreed to take the risk that materialised, but not a risk that should have been mentioned but did not materialise? The court held that the doctor would not be liable. The patient’s claim could only succeed if the doctor negligently failed to mention a risk that the patient would not have been prepared to accept; and that risk materialised. The patient could not succeed only by satisfying the court that the patient would not have agreed to the treatment if properly informed of the other risk; that is, but for the doctor’s negligence in not disclosing the other risk, the patient would not have had the treatment and suffered the injury. Proof of that matter might establish factual causation but not that the doctor should be held responsible (‘scope of liability’). Continue reading

GST – It’s Not a Matter of Choice: Commissioner of Taxation v Unit Trend Services Pty Ltd

By Michael Evans

Unit Trend Case Page

The High Court has had its first opportunity to decide a case on the general anti-avoidance rule in Australia’s Goods and Services Tax (GST) law, enacted more than a decade ago. In Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16, the High Court unanimously decided that the Commissioner can apply the GST anti-avoidance rule, even when a taxpayer makes specific choices or elections to engage in corporate structures, decisions and deals that are expressly allowed in the law.

The decision confirms that the GST anti-avoidance rule in div 165 of the GST law (and the income tax anti-avoidance rule on which it is based) gives the Commissioner of Tax a broad power to deal with avoidance schemes. Importantly, it confirms that, as intended by parliament, s 165-5(1)(b) of the GST law limits the protection for taxpayers that could arise from such statutory choices, agreements and elections contained in the GST law. This broader approach replaces the narrower ‘choice principle’ that was found to apply in earlier tax anti-avoidance rules such as former s 260 of the Income Tax Assessment Act 1936 (Cth). The ‘choice principle’ as explained in W P Keighery Pty Ltd v Federal Commissioner of Taxation [1957] HCA 2, was that the anti-avoidance rule cannot be interpreted to remove from taxpayers their choices to order their affairs as they saw fit. Continue reading

No Requirement to Prove Innocence in Malicious Prosecution: Beckett v New South Wales

By Dr Katy Barnett

Beckett v New South Wales Case Page

In Beckett v New South Wales [2013] HCA 17, the High Court overruled its own previous authority outlining the circumstances in which a person can sue for the tort of malicious prosecution. The tort of malicious prosecution allows a plaintiff who was the subject of malicious and unreasonable court proceedings to seek a civil claim for damages against the prosecuting party. The malicious and unreasonable proceedings are generally (but not always) criminal in nature. In order to make out the tort, a plaintiff must prove (among other things) that the prosecution ultimately terminated proceedings in her favour. In this case, the Director of Public Prosecutions had decided to discontinue criminal proceedings against the plaintiff after a retrial had been ordered by the New South Wales Court of Criminal Appeal. The question for the Court in this case was whether the action of the DPP constituted termination of proceedings in the plaintiff’s favour, or whether it was necessary for her to go further and prove her innocence. Continue reading

The High Court Ends a Criminal Justice Debacle: Yates v The Queen

By Professor Bernadette McSherry

Yates v The Queen Case Page

In February this year, Judge Mark Taft of the County Court of Victoria referred to the year long detention in prison of a man with intellectual disabilities who had been charged with wilful and obscene exposure because of a lack of other accommodation for him as ‘an embarrassment to the administration of criminal justice’.

If the detention of a person with an intellectual disability in prison for one year because of the lack of a viable alternative may be considered an embarrassment, then the detention of Gregory Yates, a man with an intellectual disability, for over 25 years on the basis of a ‘fear’ that he might reoffend may be viewed as a debacle. The High Court put an end to the ongoing imprisonment of Gregory Yates in Yates v The Queen [2013] HCA 8, but the indefinite detention of people with intellectual disabilities continues to raise substantial questions. Continue reading

Free Speech Balanced on a Knife’s Edge: Monis v The Queen

By Professor Adrienne Stone

Monis v The Queen Case Page

In Monis v The Queen [2013] HCA 4, it was alleged that Monis (aided and abetted by Droudis) wrote letters to relatives of Australian soldiers killed in active service in Afghanistan and to the relative of an AusAid official killed by a bomb in Indonesia. The letters expressed opposition to the war in Afghanistan in ‘intemperate and extravagant terms’ and directly insulted those who had died, including describing them as murderers and comparing them to Hitler. These allegations bear an uncanny resemblance to those of Snyder v Phelps, a controversial recent decision of the United States Supreme Court. The Supreme Court found that the Westboro Baptist Church had a right under the First Amendment to the Constitution of the United States to picket the funerals of American soldiers in order to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in the American military. Continue reading

Interpreting the Power to Sack Probationary Employees and the Right to a Fair Dismissal: Commissioner of Police v Eaton

By Brad Jessup

Commissioner of Police v Eaton Case Page

If you are employed on probation then you typically will not have the benefit of unfair dismissal laws. This is because probation periods are usually no more than six months – and parliamentarians have decided that this is a reasonable time within which employers can decide whether or not they should keep an employee on the job. However, some workers have much longer probationary periods. David Eaton, a former police officer from New South Wales, had an indefinite probationary period. That is, there was no end to his probationary period. He would stay on probation until his supervisors promoted him or, as happened in this case, they sacked him.

In the recent High Court case of Commissioner of Police v Eaton [2013] HCA 2 the Court provided some insights into the nature of probationary employment, highlighting the insecure nature of that stage of employment, particularly for police officers. The Court also commented on the implications of employers having an “unfettered power” to dismiss their employees. In reaching their decisions the judges relied on some different, and incompatible and incomplete, approaches to interpreting legislation. This suggests that there are disagreements within the Court on how to tackle the task of giving meaning to statutes. Continue reading

How a Major Bank Succeeded in International Tax Planning, Got Cheap Capital and Paid Less Tax: Mills v Commissioner of Taxation

By Professor Miranda Stewart

Mills v Commissioner of Taxation Case Page

There has been a lot in the news lately about the low tax paid by some multinational corporations, including Starbucks and Google. But these multinationals say that they are complying with the tax law of all countries. How do they do it?

The recent Australian High Court case of Mills v Commissioner of Taxation [2012] HCA 51 is an example of successful international tax planning by a major multinational bank. It concerned a financial transaction by the Commonwealth Bank, one of Australia’s ‘big four’ banks and the second largest corporate group listed on the Australian Securities Exchange. Continue reading