Mind the Gaps! High Court Confirms Negligence Will Not Protect Economic Interests where Contractual Protection is Available

By Matthew Bell, Wayne Jocic and Rami Marginean

Brookfield Case Page

The central issue in Brookfield was one which is especially important given the proliferation of multi-use, multi-storey developments around Australia’s major population centres. This was whether the builder of an apartment complex owes a duty of care in negligence to protect the Owners’ Corporation (as agent for the owners of apartments in the building) from pure economic loss arising from latent defects in the common property of that building where those defects were structural, constituted a danger to persons or property in the vicinity or made the apartments uninhabitable. The High Court found that the builder owed no such duty, reversing the decision of the NSW Court of Appeal.

This result may be surprising to lay people or those not versed in construction law. For the reasons we set out below, we think that the Court’s approach is, to a certain extent, based on flawed assumptions as to the availability of legal protection for building owners by way of contractual negotiation or legislation. That said, the decision reflects the greater trend in Australian law in the past ten years to reverse the expansion of the duty of care in negligence, and to leave the question of liability to contract or legislative schemes. Moreover, the Court’s continued backing away from tortious liability is consistent with the view expounded by the Court’s most recent appointee, Justice Nettle, in a 2004 Continue reading

News: Man Haron Monis in the High Court

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

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

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

News: High profile cases considered for special leave

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

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

Continue reading

Argos Pty Ltd v Minister for the Environment and Sustainable Development

The High Court has partly allowed an appeal from the ACT Court of Appeal on whether corporate appellants have standing to bring an application under the s 5(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT). Continue reading

News: Justice Geoffrey Nettle’s surprise appointment

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

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

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

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

Commissioner of Taxation v MBI Properties Pty Ltd

The High Court has unanimously allowed an appeal from a decision of the Full Federal Court on ‘increasing adjustments’ and the meaning of ‘supply’ under s 135-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Continue reading

News: Unsuccessful High Court litigants succeed at the UN

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

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

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

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

No Duty to Detain Individuals with Severe Mental Health Problems: Hunter and New England Local Health District v McKenna

By Professor Bernadette McSherry

McKenna Case Page

Mental health practitioners may be breathing a sigh of relief that the High Court has unanimously held that a New South Wales hospital and a psychiatrist in its employ held no duty of care to the relatives of a man who was killed by a recently discharged patient. While the judgment is confined to a consideration of the effect of a statutory provision on whether or not a common law duty of care exists, the finding has repercussions for the movement in modern mental health care towards a focus on recovery and human rights rather than purely on preventive detention.

Risk assessment and risk management of those with severe mental health problems is now a core part of mental health practice. Mental health laws in Australian states and territories generally enable the involuntary detention and treatment of those with mental health problems on the basis that the individual concerned needs to be prevented from causing serious harm to him or herself or to others.

The question of how mental health practitioners ought to determine whether someone is at risk of harming him or herself or others is subject to a vast amount of literature and debate: see here, here and here. It remains the case, however, that it is exceptionally difficult to predict whether a specific individual may be at risk of harming another, particularly when there has been no history of violent behaviour. Forensic psychiatrists Andrew Carroll, Mark Lyall and Andrew Forrester pointed out in a 2004 article that ‘[n]o method, clinical, actuarial or combined, achieves anywhere near 100% predictive power, whether short or long term risk is considered.’ (at 413).

The deaths of Stephen Rose and Phillip Pettigrove
Phillip Pettigrove was born in 1962 and had a long history of mental health problems. Continue reading

News: Crennan J stops hearing cases ahead of retirement

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

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

News: Thoughts on new judges for the High Court

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

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

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

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

Continue reading

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

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

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

Kuczborski v Queensland

Jeremy Gans, ‘News: Qld Bikie Laws Challenge Set for Lengthy Hearing in September’ (30 June 2014).

The High Court has decided a special case on the constitutional validity of Queensland’s Vicious Lawless Association Disestablishment Act 2013 (Qld) and related provisions under various other law enforcement statutes dealing with restrictions on public association, licensing and clothing aimed at motorcycle clubs. Continue reading

Minister for Immigration and Border Protection v SZSCA

James C Hathaway, ‘The Conundrum of Concealment: Minister for Immigration and Border Protection v SZSCA‘ (9 November 2014) (reposted from Reflaw)

A majority of the High Court has dismissed the Minister for Immigration and Border Protection’s appeal against the decision of the Full Federal Court in SZSCA. SZSCA fled Afghanistan after the Taliban threatened to kill him in retaliation for working as a truck driver for various aid agencies. Continue reading

The Conundrum of Concealment: Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155

The High Court’s decision in Minister for Immigration and Border Protection v SZSCA will be handed down on 12 November 2014. In expectation of the judgment we wanted to share this piece by Melbourne Law School Professorial Fellow and former Dean and current professor at Michigan Law School, James C. Hathaway, on the December 2013 Full Federal Court decision in the case. This post has been republished with permission from Reflaw.

By Professor James C. Hathaway

The Full Federal Court of Australia recently considered the refugee status of an Afghan who had worked for nearly a quarter century as a jewelry maker in Kabul, before deciding in 2007 to work instead as a self-employed truck driver. Initially, his work consisted of transporting such goods as wood, animal skins, and food across the country. But starting in January 2011, he agreed to begin hauling building materials from Kabul to Jaghori in order to supply reconstruction projects being undertaken by the government and international aid agencies. He took on this new work because “he was paid more” [21], noting that “there was not a lot of work and he had to support his family” [22]. When the Taliban threatened to kill him if he continued to transport building materials used in reconstruction, he fled Afghanistan and advanced a refugee claim in Australia.

The claimant reasonably argued that an adverse political opinion had been imputed to him by the Taliban, and that the Afghan government could not be counted on to shield him from the Taliban’s death threats. The Australian government contended, however, that he could avoid the risk by giving up truck driving and returning to his prior career as a jeweler. Counsel for the applicant countered that the applicant could not be compelled to give up his preferred work, and that if that work gave rise to a risk of being persecuted for reasons of an imputed political opinion, his refugee status should be recognized.

The majority of the Full Federal Court of Australia agreed with the applicant. Understanding the High Court of Australia to have ruled in S395 that a decision-maker “cannot require an asylum seeker to behave in a particular manner” [61] – the only relevant question being “whether an asylum seeker would not in fact behave in a particular matter upon his or her return” [61] – it was held that there was a duty to grant refugee status given the applicant’s unwillingness to resume his work as a jeweler in Kabul.

This decision continues a no doubt well-meaning, but analytically flawed, approach. Continue reading

News: Chief Justice writes to law deans about inappropriate communications

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

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

News: New appeals on liquidation and deportation

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

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

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

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

A 3:2 majority of the High Court has dismissed an appeal from a decision of the Full Federal Court relating to the dismissal of an employee engaged in industrial action who held a sign that read ‘No principles, SCABS, No guts’ which was deemed to be ‘offensive’ and contrary to BHP’s code of conduct. Continue reading

News: East West Link High Court case explainer

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

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

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

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

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

Brookfield Multiplex Ltd v The Owners — Strata Plan No 61288

Matthew Bell, Wayne Jocic and Rami Marginean, ‘Mind the Gaps! High Court Confirms Negligence Will Not Protect Economic Interests where Contractual Protection is Available’, 17 December 2014.

The High Court has unanimously allowed an appeal against the decision of the NSW Court of Appeal, in The Owners — Strata Plan No 61288 v Brookfield Australia Investments Ltd. Continue reading

Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales

The High Court has held that s 93X of the Crimes Act 1900 (NSW) is not invalid. That section makes it an offence for a person to continue to ‘habitually consort’ with convicted offenders after receiving an ‘official warning’, either verbally or in writing, from a police officer. Continue reading

News: Death of alleged victim in Perry v R

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

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

News: Migration Bill targets High Court rulings

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

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

News: Legal threat to state drug laws recedes

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

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

News: Supreme Court blog and Harold Ford Memorial Lecture

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

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

Commonwealth Bank of Australia v Barker

Adriana Orifici, ‘High Court to Examine Whether There is an Implied Term of Mutual Trust and Confidence in Australian Employment Contracts’ (28 January 2014).

The High Court has allowed an an appeal from the decision of the Full Federal Court which recognised the existence in Australian law of an implied term of mutual trust and confidence between employers and employees. Continue reading

Injuries and Workplace Misadventure: Comcare v PVYW

By Clare McIlwraith

Comcare v PVYW Case Page

Imagine your employer sends you to a conference interstate. Your travel, expenses and accommodation are all organised and paid for. Your 9-to-5 days and dinners are occupied with conference events. But what of all the other time you have on your hands? It is the stuff of folklore and Hollywood movies (like the 2011 movie Cedar Rapids) that those other times are filled with adventure. But for Australian employees there now exists a limit on what can be done out of the office that will be protected under workplace insurance schemes.

In October 2013 the High Court, by a 4:2 majority, allowed an appeal by the federal government’s workplace insurer, Comcare, denying the Commonwealth government employee respondent, known by the identifier ‘PVYW’, workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SR&C Act).

PVYW had been sent to visit a regional office, and was required to stay overnight at a motel booked by the employer. While staying overnight at the motel, PVYW was struck in the face by a glass light fitting on the bed when it was pulled off the wall of the motel during sexual intercourse with a local acquaintance. Following the incident, PVYW claimed compensation for physical and subsequent psychological injuries under the SR&C Act.

The majority of the court held that the injury suffered by PVYW was not suffered ‘in the course of’ employment. This was because it was not caused through an activity encouraged or induced by the employer or was not considered ‘referable’ to a hotel stay. This last conclusion is perhaps surprising given the mythology of work trips and sex in hotel stays or because as Counsel for PVYW noted that sex is a universal incident of human life ([2013] HCATrans 169).

Although the SR&C Act only applies to Commonwealth government employees the decision will be relevant to all employees subject to workers compensation schemes because each scheme limits insurance recovery in similar (though in some cases more restrictive) ways (see [2013] HCATrans 114). Continue reading

News: Court takes on new native title case

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

Expert Evidence and Unreliability in the High Court: Honeysett v The Queen

By Andrew Roberts

Honeysett v The Queen Case Page

The question of how and by whom the reliability of expert testimony should be evaluated is problematic. For many, the prevailing approach in Australia is a cause for concern. However, the recent case of Honeysett v The Queen [2014] HCA 29 presented the High Court with an opportunity to grasp the nettle. In that case, the issue was whether and how a jury could be assisted in comparing the image of the accused taken at a police station to an armed robber captured on a CCTV image whose head was covered by a hood by an anatomy professor pointing out similarities in the images and the absence of any differences.

In criminal trials witnesses are generally prohibited from expressing opinions on matters that are to be determined by the jury. Witnesses are generally expected to testify only to the facts. The drawing of inferences from those facts is the exclusive province of the jury. Opinions offered by witnesses are excluded because they are superfluous. The prohibition is subject, however, to significant exceptions, one of which permits an opinion to be expressed by a witness who possesses ‘specialised knowledge’ — provided that the opinion is ‘wholly or substantially based’ on that knowledge. Such witnesses are allowed to express opinions because the jury is thought to lack the knowledge and experience that would enable it to draw rational and reliable inferences. In such circumstances, the expert’s opinions are required to ensure that verdict returned by the jury is the product of sound reasoning.

Why reliability matters
What then of the issue of reliability? If the justification for allowing experts to offer opinions is that the jury lacks the competence required to draw the inferences drawn by the expert, is the idea that evaluation of the reliability of expert opinion should be left to the jury plausible? Continue reading

News: David Eastman conviction quashed

The Supreme Court of the Australian Capital Territory today quashed David Eastman’s conviction for the 1989 murder of the Commissioner of the Australian Federal Police, Colin Winchester. This result followed a wide-ranging report into the safety of his conviction by former Northern Territory Chief Justice Brian Martin that concluded that his conviction was unsafe for a combination of reasons, the primary one being a finding of flawed science and bias by a ballistics expert. The Supreme Court agreed with Martin’s conclusion, but not his further view that any retrial would be impossible. Today’s decision is a lengthy and complex one raising difficult questions about judicial inquiries into the safety of finalised convictions, including matters such as whether the court is limited to inquiring into doubts about guilt (as opposed to the fairness of the trial), whether the court can have regard to material that is kept confidential from the parties, whether an otherwise strong circumstantial case becomes unsafe because of doubts about forensic evidence and whether retrial should be ordered so long after the original 1995 trial.

It may be that questions about these issues will be appealed to the High Court. If so, it will be the latest of many High Court rulings on Eastman’s prosecution, including Continue reading

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

A charity or a trust with a ‘political purpose’ has traditionally been held not to have charitable status (sometimes called the Bowman principle). In Bowman v Secular Society [1917] AC 406, Lord Parker said at 442:

a trust for the attainment of political objects has always been held invalid, not because it is illegal, for every one is at liberty to advocate or promote by any lawful means a change in the law, but because the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.

This has been subsequently upheld in English case law in cases such as McGovern v Attorney-General [1982] Ch 321 and Hanchett-Stamford v Attorney-General [2009] Ch 173. The latter case held that while a new Charities Act had been enacted in 2006, this did not change the fundamental principle that charities with political purposes were not charitable.

By contrast, in 2010, a majority of the High Court of Australia declined to follow the English case law in Aid/Watch Incorporated v Commissioner for Taxation [2010] HCA 42. At [45]–[46], French CJ, Gummow, Hayne, Crennan and Bell JJ noted that agitation of political and public debate could be a societal good, and that the court did not have to decide on whether the political purposes furthered by the charity were legitimate.

Now, in In re Greenpeace [2014] NZSC 105, a majority of the New Zealand Supreme Court has decided to follow the High Court’s lead. Following the decision of the New Zealand Court of Appeal in Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688, the Charities Commission in New Zealand had refused to register Greenpeace as a charity on the basis that two of its purposes were political, namely the promotion of disarmament and peace and the agitation of change to government policy and legislation. The Australian approach was an important influence on the Supreme Court’s decision to overturn the political purpose exemption (see [66]–[71] of In re Greenpeace). As with the High Court decision, the New Zealand Supreme Court was not unanimous and there were two dissenting judges. As the majority noted, there is still a possibility that Greenpeace will not qualify as a charity in light of arguments that it furthers illegal purposes by endorsing trespass and other such activities when advocating “non-violent direct action.” Now the question of Greenpeace’s status as a charitable entity has been remitted back to the Charities Commission for reconsideration in light of the New Zealand Supreme Court decision.

News: Tasmanian anti-environment protest laws back before Parliament

Tasmania’s upper house of Parliament will soon debate proposed laws that create new offences for conducting protests in a manner that disrupt business activities, including conducting protests on business premises or that impede access to the location for business activities.

The Workplaces (Protection from Protestors) Bill 2014 passed the Tasmanian lower house in late June 2014. On 19 August 2014 it was read for the first time in the Tasmanian Legislative Council. The Bill continues to generate protest and opposition from within parliament and beyond. The proposed bill creates new definitions of protest and business that, should the bill pass, will be much analysed by judges. However, as Melbourne Law School’s Professor Adrienne Stone has noted, the law may ultimately be subject to a constitutional challenge on the ground that it is inconsistent with the implied constitutional freedom of political communication. The limitation on protestors might be unreasonable or disproportionate to the desired purpose of the law – to protect businesses from disruption. Should a challenge to the law be brought before the High Court, it will add to the opportunities presented to the court last year in the cases of Monis and Corneloup and already this year in the Unions NSW case to develop jurisprudence on the implied freedom.

 

The DNA, the Handshake and the Didgeridoo: Fitzgerald v The Queen

By Professor Jeremy Gans

Fitzgerald v The Queen Case Page

On 19 June 2011 at around 6 am, a group of men carrying makeshift weapons poured from two cars into an Adelaide suburban home. The resulting horror left 23 year-old Kym Drover dead and 25 year-old Daniel Fitzgerald serving a minimum twenty year term for his murder. Just two pieces of evidence linked the two: a handshake the previous evening (between Fitzgerald and the only other person convicted of the attack on Drover) and a didgeridoo found the next morning next to Drover (containing Fitzgerald’s DNA).

Two months ago, on the crime’s third anniversary, the High Court unanimously, correctly and — after his counsel noted his otherwise clean record — summarily freed and acquitted Fitzgerald, exemplifying the national court’s role as a last ditch avenue of appeal for the wrongly convicted. But the case should never have got that far. Fitzgerald should never have been charged. He should never have been found guilty. He should have easily won his appeal in South Australia. The High Court’s slight reasons in Fitzgerald v The Queen [2014] HCA 28 do too little to address the risks arising from the criminal justice system’s overuse of DNA evidence. Continue reading

News: New Court matters include case about tragic radio hoax

This week, the High Court decided three criminal law cases, declined to proceed with a fourth following a full hearing, awarded additional costs to the victor in an earlier matter and held two case management hearings: one, in the ongoing litigation about the Commonwealth’s powers to detain asylum seekers en route to Australia and another in a constitutional challenge to a NSW law revoking mining licences following a corruption inquiry.

As well, today, the High Court  granted special leave to appeal in three commercial investment matters and a regulatory dispute involving a very high profile tragedy. Continue reading

Pollentine v Attorney-General (Qld)

The High Court has decided a special case and upheld the validity of s 18 of the Criminal Law Amendment Act 1945 (Qld), which relates to continued detention of child sex offenders after the expiry of sentence, ‘at her Majesty’s pleasure’, on the grounds that the ‘offender is incapable of exercising proper control over the offender’s sexual instincts’. Continue reading

News: Big trouble for crime boss scenario evidence

Seven years ago, a majority of the High Court in Tofilau v R [2007] HCA 39 upheld four Victorian convictions founded on an unusual criminal investigative method. The method (known in Australia as ‘scenario’ evidence) is for undercover police officers to recruit suspected criminals into fake criminal gangs and then trick them into confessing real crimes by telling them that such confessions are a requirement for membership. After further prompts (such as staged inquiries from real police and promised aid from ‘corrupt’ police), the scenario culminates in a detailed, videotaped interview with the gang’s ‘boss’, after which the sting is revealed to the stunned suspect. This astonishing method (whose details can only be published thanks to a 2005 High Court ruling rejecting a publication ban) was developed in Canada, and the High Court in 2007 relied heavily on its repeated endorsement by the Canadian Supreme Court in upholding its use here.

However, last week, Canada’s top court unanimously changed its mind Continue reading

Sir Anthony Mason Reflects on Judging in Australia and Hong Kong, Precedent and Judgment Writing

On 18 July 2014, I was able to interview Sir Anthony Mason as we were both attending Obligations VII Conference in Hong Kong.

Sir Anthony was a judge of the High Court of Australia from 1972 to 1987, and Chief Justice of the High Court of Australia from 1987 to 1995. He then became a non-permanent judge of the Hong Kong Court of Final Appeal, a position which he still holds.

We spoke about his roles as a judge in Australia and Hong Kong, significant judgments during his time as a High Court judge, the role of dissenting judgments, the use of academic commentary and overseas judgments, the doctrine of precedent and Farah v Say-Dee, and judgment writing styles.

KB: Thanks so much for agreeing to speak to me today.

AM: It’s a pleasure, Katy.

KB: The first thing I’d like to ask is: how would you view your time on the High Court?

AM: I enjoyed it very much. I suppose I can say I enjoyed being a judge.

KB: Yes.

AM: In one sense I regarded it as great fun. It was of course at times onerous, but I always enjoyed it. The questions were interesting and it was interesting endeavouring to answer the questions.

KB: And on that note, obviously you haven’t still given up being a judge. What about your time on the Hong Kong Court of Final Appeal? (See also The Hon Sir Anthony Mason, ‘The Hong Kong Court of Final Appeal’ (2001) 2 Melbourne Journal of International Law 216.)

AM: Likewise, I’ve enjoyed that very much. There are two different, or two aspects of that that are different from sitting in the High Court. First of all I am sitting on the CFA as a part-time judge. It’s more enjoyable being a part-time judge than a full-time one. Of course you don’t feel that sense of grind which you feel at times if you’re a permanent judge sitting on a court over a long period of time. But the second feature of sitting on the CFA is that I began sitting on that Court at the time when courts began to interpret the provisions of the Basic Law of Hong Kong’s Constitution. And it’s very different interpreting the provisions of a new Constitution at the very beginning from interpreting the provisions of an old Constitution after a lot of, as it were, work has already been done on it. You feel at times in the medium of the High Court that you’ve got to contend with a lot of overburden. You never have that feeling in Hong Kong. And the great thing about it is that it instils in you a sense of history and appreciation of the work done by those great judges who were the first High Court judges. I mean, they were remarkably good judges. They quickly established a reputation for the High Court as one of the leading courts in the world, and what’s more, they stood up to the Privy Council, and in their first big confrontation with the Privy Council they won out, and you should never forget their contribution to the development of Australian democracy and to the Australian Constitution. (See Deakin v Webb [1904] HCA 57.) Continue reading

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

Canadian journalist Catherine Clark, the daughter of a former Prime Minister and the host of Beyond Politics (shown on Canada’s public affairs cable channel) has conducted video interviews with the entire bench of the Supreme Court of Canada. Each runs for nearly 30 minutes. There are only eight interviews, as the Court’s ninth seat was unoccupied until recently (for reasons explained here). The interviews are available online at the website of Beyond Politics and on the show’s youtube channel (see the end of the list). In her interview, the current Chief Justice Beverly McLachlin reveals that she received the phone call offering her a place on the court while vacationing with her twelve-year old in Townsville.

Clark’s interviews resemble video interviews given by all sitting judges of the United States Supreme Court in 2009 on CSPAN. The American and Canadian Supreme Courts’ willingness to give interviews while on the bench contrasts with the general practice of Australia’s High Court, which is generally limited to rare interviews with the Chief Justice on special occasions, such as impending retirement [UPDATE: see comment below.] Last year, The Australian reported that the Court’s current Chief Justice, Robert French, has ruled out any media interviews before he retires in 2017.

The High Court Upholds the ‘PNG Solution’: Plaintiff S156/2013

By Houston Ash

Plaintiff S156/2013 Case Page

While the legality of the Australian government’s policy of transferring Sri Lankan asylum seekers to that country’s navy is likely to be considered by the High Court shortly, a separate challenge to another pillar of the government’s migration strategy was recently dismissed. In Plaintiff S156/2013 v Minister of Immigration and Border Protection [2014] HCA 22, the High Court unanimously upheld the constitutionality of the provisions of the Migration Act 1958 (Cth) under which asylum seekers are removed from Australia’s ‘migration zone’ to either Papua New Guinea or the Republic of Nauru. The Court also confirmed the validity of the decisions made by the Minister of Immigration and Border Protection to designate PNG as a ‘regional processing country’ and to direct officers of what is now the Department of Immigration and Border Protection to take particular classes of ‘unauthorised maritime arrivals’ to PNG or Nauru.

The provisions in question, ss 198AB and 198AD of the Migration Act, were introduced by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth). As discussed further below, these provisions were the Parliament’s response to the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32, which scuppered the former government’s so-called ‘Malaysia Solution’.

The challenged provisions
Section 198AD of the Migration Act requires ‘unlawful non-citizens’ who are also ‘unauthorised maritime arrivals’ to be taken to a ‘regional processing country’ as soon as reasonably practicable. If there are two or more such countries, s 198AD(5) requires the Minister to provide a written direction specifying the country to which a person or class of persons is to be taken. Section 198AB allows the Minister, by legislative instrument, to designate that a country is a ‘regional processing country’ if the Minister thinks it is in the national interest to do so. In considering the national interest, the Minister must have regard to whether the country has given any assurances that it:

  • (a)   Will not expel the person to a country where his or her life or freedom would be threatened; and
  • (b)   Will permit an assessment of whether the person is a refugee within the meaning of art 1A of the Refugees Convention.

Section 198AB(4) provides that any such assurances do not need to be legally binding. Continue reading

Williams [No 2] Symposium: Some Curiosities and Further Thoughts on Williams [No 2]

By Benjamin Saunders

Williams [No 2] Case Page

This post makes some additional comments about the Court’s reasoning with respect to executive power (the subject of an earlier post by Cheryl Saunders (no relation to the author)) and also briefly discusses the Commonwealth waiving debts owed to it as a consequence of the Court’s finding of invalidity.

Executive power, British and Australian
I do not disagree with the opinions expressed by Cheryl Saunders in her earlier post, that ‘Williams [No 2] does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1]’. However, I wish to make some additional observations, namely that the Court in Williams [No 2] reached its decision about the scope of executive power in an unusual way. Continue reading

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

Media reports state that the High Court has issued an injunction preventing the Australian navy from handing over approximately 150 people, said to have travelled by boat to seek asylum in Australia, to Sri Lankan officials.  This follows confirmation by the Australian government of an incident involving 41 people:

Forty one potential illegal maritime arrivals who were intercepted on the SIEV were returned to Sri Lankan authorities yesterday (Sunday 6 July). The 41 Sri Lankan nationals were transferred at sea, in mild sea conditions from a vessel assigned to Border Protection Command (BPC) to Sri Lankan authorities, just outside the Port of Batticaloa. All persons intercepted and returned were subjected to an enhanced screening process, as also practised by the previous government, to ensure compliance by Australia with our international obligations under relevant conventions.

The Australian reports that the injunction was granted by Crennan J in an urgent hearing this evening and will apply until 4pm tomorrow, by which time a further hearing will have occurred.

A possible precedent for the reported injunction is an interim injunction granted by Hayne J on 7 August 2011 to prevent the first transfer of asylum seekers from Christmas Island to Malaysia under the ‘Malaysian Solution’. Continue reading

Plaintiff S297/2013 v Minister for Immigration and Border Protection; Plaintiff M150/2013 v Minister for Immigration and Border Protection

The High Court has upheld a challenge to the validity of the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), known as the PPV Regulation, in two related matters. The Court held the Minister’s determinations in relation to Plaintiffs S297/2013 and M150/2013 were invalid and issued a writ of mandamus in each instance directing the Minister to consider and determine each visa application according to law. Continue reading

News: High Court is Australia’s most trusted institution

A recent Essential Poll records that Australia’s most trusted institution is the High Court of Australia. 20% of the 1835 people surveyed said that they placed “a lot of trust” in the High Court” and 37% said that they placed “some trust” in the High Court. The High Court outstripped all other institutions, but was closely followed by the ABC. The High Court also had the lowest level of distrust, with only 12% of respondents saying that they had “no trust” in the High Court. Political parties scored the lowest in the 2014 poll, with only 2% of people saying that they placed “a lot of trust” in political parties and 11% of people saying that they placed “some trust” in political parties. 50% of people said that they had “no trust” in political parties. Continue reading

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

Last week, the High Court held two directions hearings in Kuczborski v The State of Queensland, the long-expected constitutional challenge to multiple laws enacted by the Queensland Parliament in the early hours of 16th October last year as a response to a Gold Coast ‘brawl’ nineteen days earlier. In last Monday’s hearing, Keane J revealed that the High Court hoped to schedule the full hearing in Brisbane in the first week of September. Queensland’s new Solicitor-General, noting that the case would require a day of arguments each by the challenger and Queensland and may attract interventions from many other Attorneys-General, suggested that the hearing would take ‘at least three days’. A four-day hearing would be the second one this year. As I noted last month on the chaplaincy hearing’s fourth day, the two previous four-day matters in the High Court were in 2009 and 2006.

The length of this matter may be less to do with its significance or controversy, and rather is likely due to the number of laws being challenged and the number of grounds. Continue reading

FTZK v Minister for Immigration and Citizenship

The High Court has allowed an appeal against the decision of the Full Federal Court in FTZK. FTZK is an asylum seeker who was accused of involvement in a kidnapping-murder while he was in China, an accusation he claims was motivated by his religious practices. Continue reading

News: Media round-up on Chaplain Case

Sometimes High Court judgments excite a lot of interest not only from lawyers, but from the general public. Williams v Commonwealth [2014] HCA 23 (‘Williams [No 2]‘) is one such decision.

The immediate response from the Prime Minister was that the government would try to continue its support of chaplaincy in State schools despite the High Court’s decision. In a comment which was later roundly criticised by many, Coalition backbencher Andrew Laming said that an out-of-touch “alliance of Greens, gays and atheists” had mounted a campaign against chaplaincy culminating in the result of the latest case.

Some saw the case as a ‘Trojan Horse’ for a resurgence of States’ Rights activism, whereas others argued that it was a victory for LGBTIQ youth. Some were concerned about what was going to happen with regard to the funding for chaplains which had already been paid over.

The IPA opined that Williams [No 2] was a win for parliamentary democracy because it reiterated that decisions over how public money should be spent should be made by parliament, not the executive, and that the separation of powers was upheld. With respect, this is overstating the result of Williams [No 2]. Williams [No1] decided that the Commonwealth executive had no power to enter into the funding agreements for chaplaincy with Scripture Union Queensland. The High Court did not decide Williams [No 2] on the basis of parliamentary sovereignty, and as Professor Cheryl Saunders notes, the case ‘does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1].’ The judgment did not mention separation of powers. It decided the case on the narrower ground of whether there was any particular head of power which supported the funding in the specific instance of chaplains (it was found that there was no head of power which did support it). As Professor Simon Evans explains here, it hinged around whether there was a ‘benefit to students’. Williams [No 2] simply represents a tightening of our understanding of the legislative heads of power.

Other media commentators were interested in what other programs could be affected by the ruling. Indeed, a perusal of the programs which are covered by Schedule 1AA of the Financial Management and Accountability Regulations 1997 (Cth) makes for interesting reading.

 

Williams [No 2] Symposium: Thomas Bland on the Plaintiff’s Standing and the Commonwealth’s Attempt to Re-Open Williams [No 1]

By Thomas Bland

Williams [No 2] Case Page

In Williams [No 1], the plaintiff leapt over a procedural hurdle — whether he, as a parent of children who attended a school in which a chaplain was employed pursuant to the National School Chaplaincy Program, had standing to challenge the funding arrangements underlying that program. In Williams [No 2] the Commonwealth defendants, faced with Mr Williams’ second challenge to the funding arrangements, failed to surmount a different hurdle when the Court denied them leave to challenge the correctness of the Court’s decision in Williams [No 1].

In this post, I will briefly examine how the Court in Williams [No 2] dealt with the plaintiff’s standing and the Commonwealth’s ill-fated attempt to have Williams [No 1] overruled, and I will make some observations on the Court’s approach to these issues.

Standing
One of the questions reserved for the Full Court in Williams [No 2] was whether the plaintiff had standing to bring the challenge to s 32B of the Financial Management and Accountability Act 1997 (Cth). The Commonwealth conceded in its written submissions that, ‘in light of the position taken by the [intervening States]’, the plaintiff had standing. The Court accepted this concession and answered the question thus: ‘[I]n the circumstances of this case, and to the extent necessary for the determination of this matter, yes’ (at [28]). (The Court explained the reasons for the qualified answer, but they are irrelevant for present purposes.)

The Commonwealth’s concession was doubtless informed by the Court’s holding on the plaintiff’s standing in Williams [No 1]. Given that counsel for the Commonwealth (as discussed further below) went on to challenge the substantive holdings in Williams [No 1], it is perhaps unsurprising that they conceded the standing point. If the Court held that the plaintiff lacked standing, the Commonwealth’s opportunity to have Williams [No 1] overruled would not arise. However, the Court’s holding on standing in Williams [No 1] arguably signals a departure from its previous practice. It is worth considering whether this is so, and if so, what this might mean for future litigants. Continue reading

Williams [No 2] Symposium: Cheryl Saunders on the Executive Power of the Commonwealth after Williams [No 2]

By Professor Cheryl Saunders

Williams [No 2] Case Page

Williams [No 2] does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1]. The principal question for the Court was the validity of the legislation that had been enacted in the wake of Williams [No 1], to provide a loose statutory base for the National School Chaplaincy and Student Welfare Program (NSCSWP) and more than 400 other executive spending programs. The reasoning of the Court on the issues raised by this question is dealt with elsewhere in the symposium. In brief, the six sitting Justices, in two separate judgements, rejected arguments that either the benefits to students power (s 51(xxiiiA)) or the corporations power (s 51(xx)) provided a head of power for the legislation in relation to the NSCSWP. The Court did not need to determine whether the covering provisions in the Appropriation Acts provided the necessary legislative base for executive spending programs, because similar questions about a head of power arose: [55]. Nor did it need to reach the more novel question of whether the challenged legislation involved a delegation of legislative power that was so excessive or vague that it transgressed the Constitution in some other way: [36].

The ambit of federal executive power nevertheless was in issue in Williams [No 2], not least because the Commonwealth sought to reopen Williams [No 1] (for this argument, see [59]). In place of the majority holding in Williams [No 1], the Commonwealth argued for an understanding of s 61 that identified minimal limitations on the ability of the Executive to contract and spend: [68]. Alternatively, if the executive power also was limited by subject matter, the Commonwealth argued that federal power to contract and spend ‘extends to all those matters that are reasonably capable as being seen of national benefit or concern; that is, all those matters that befit the national government of the federation, as discerned from the text and structure of the Constitution’: [70]. Had either argument succeeded, the legislation might have been upheld as an exercise of s 51(xxxix) in combination with s 61 or even ss 81 and 83. Indeed, on the basis of the first argument, at least, there would have been no need for legislation at all. Both, however, were rejected, as arguments that, effectively, had been tried and had failed before ([69], [71]). Williams [No 1] was not reopened and the majority holding stands. Continue reading

Williams [No 2] Symposium: Simon Evans on Benefits to Students

By Professor Simon Evans

Williams [No 2] Case Page

The National School Chaplaincy Program (NSCP) was struck down in Williams [No 2] because, the High Court concluded, the Commonwealth legislation that purported to authorise it was not a law with respect to ‘benefits to students’.

Williams [No 2] does not determine the fate of this legislation more generally or of the myriad other programs it was enacted to validate following Williams [No 1].

Nor does it deal a permanently fatal blow to the NSCP. But it does raise serious issues for Commonwealth laws and schemes that deal with students and education. This post is an initial sketch of some of those issues and the questions that will have to be addressed in coming months. Continue reading

Williams [No 2] Symposium: Graeme Hill on Narrowing the Issues

By Graeme Hill, Barrister

Williams [No 2] Case Page

The High Court delivered its judgment in Williams [No 2] only 6 weeks after the hearing, much more quickly than is usual in complex constitutional cases. One reason the Court was able to deliver its judgment so quickly was that the Court carefully narrowed the issues to be dealt with. The Court concentrated on whether the particular item in the Financial Management and Accountability Regulations 1997 (Cth) (FMA Regulations) that referred to the school chaplaincy program was supported by a head of Commonwealth legislative power. The Court’s negative answer to that question meant it was unnecessary to deal with the other arguments raised by the plaintiff.

The Court’s reasoning in this respect is orthodox and, I would suggest, appropriate in this case.

Narrowing the issues
Williams [No 2] considered the validity of the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) (FFLA Act), which was enacted days after, and in response to, the High Court’s judgment in Williams [No 1]. In outline, the FFLA Act amended the Financial Management and Accountability Act 1997 (Cth) (FMA Act) and FMA Regulations in an attempt to confer statutory authority on the Commonwealth executive to make payments under existing grants and programs, including the school chaplaincy program. Continue reading

Question: When Does a Litigant Want to be a Fiduciary? Answer: When It Involves Tax Law: Howard v Commissioner of Taxation

By Michael Crawford

Howard v Commissioner of Taxation Case Page

Why would a litigant want to be a fiduciary?
The law reports of all common law jurisdictions are replete with cases in which fiduciaries who have obtained a financial gain furiously deny that the gain constitutes an unauthorised benefit or that it was obtained in circumstances in which their duty to their principal was in conflict with their personal interest. It is somewhat of a novelty, however, to come across a case in which a fiduciary implores a court to find that he has obtained a benefit in breach of his obligations and that the fruit of his wrongdoing should thus be held on constructive trust for the benefit of his principal. Yet Howard v Commission of Taxation [2014] HCA 21 is just such a case. And why, one might ask, would a fiduciary urge upon a court such an apparently perverse submission? The answer, perhaps unsurprisingly, is tax law.

The appellant was one of six people who entered into a fiduciary joint venture, the purpose of which was to exploit the investment potential of an underperforming golf course in Victoria. The plan agreed upon was to purchase the course, find a long-term tenant to operate it and then sell the reversion to a third party for a profit. The profit realised from the sale would then be divided six ways. The benefit of this strategy was that it would yield a more or less immediate profit, referred to as a ‘day one’ profit, for the participants. Continue reading

Productive court takes on two new appeals

This past fortnight, the Court heard two constitutional challenges (to NSW’s consorting offence and a Queensland indefinite detention statute) and two potential landmark appeals (on the admissibility of expert evidence and tort liability for defective building), and also published five judgments (including rulings on the validity of the PNG solution, the chaplaincy program and the cap on protection visas). As well, the Court made some quieter rulings, revoking special leave in a technical case about refugee appeals and allowing a criminal appeal about DNA transfer. To cap off its busy fortnight, the Court also took on two new private law appeals from the following decisions of the NSW Court of Appeal: Continue reading

News: Williams No 2 Symposium on Opinions on High

As noted on our case page and in the media, the High Court has ruled that the funding arrangement for the National School Chaplains program is not supported by the Commonwealth’s legislative or executive power and is therefore invalid.

Opinions on High is proud to announce that it will host an online symposium on the Williams [No 2] decision starting next week. Commentators from Melbourne Law School will post their analyses of the Court’s judgments and the implications of the decision. As always, readers will be able to comment and ask follow up questions on each piece. Anonymous comments are permitted provided you supply a valid email address.

Williams v Commonwealth

Thomas Bland, ‘Williams [No 2] Symposium: Thomas Bland on the Plaintiff’s Standing and the Commonwealth’s Attempt to Re-Open Williams [No 1]‘ (25 June 2014).

Cheryl Saunders, ‘Williams [No 2] Symposium: Cheryl Saunders on the Executive Power of the Commonwealth after Williams [No 2]‘ (25 June 2014).

Simon Evans, ‘Williams [No 2] Symposium: Simon Evans on Benefits to Students’ (23 June 2014).

Graeme Hill, ‘Williams [No 2] Symposium: Graeme Hill on Narrowing the Issues’ (23 June 2014).

Jeremy Gans, ‘News: Chaplaincy Hearing Reaches Its Fourth Day’ (9 May 2014).

The High Court has decided the special case arising out of and brought by the same applicant in the recent landmark constitutional law decision, Williams v Commonwealth [2012] HCA 23, and has ruled that the SUQ Funding Agreement is not supported by the legislative or executive power of the Commonwealth.

Both the present challenge and Williams [No 1] revolved around the Commonwealth’s power to enter into an agreement to fund the public company Scripture Union Queensland’s (SUQ) delivery of chaplaincy services to the Darling Heights State Primary School (attended by Mr William’s children). In Williams [No 1], a majority of the Court held that the executive power of the Commonwealth could not support its entry into the agreement with SUQ in order to fund the chaplaincy program because the executive does not have a broad power to enter into contracts or spend public money without the support of legislation (absent another recognised source of power).

This challenge related to the new funding arrangement with SUQ for the renewed and renamed chaplaincy program, funded by a new series of appropriations acts (which also purportedly support the Commonwealth’s entry into the arrangement). Following the decision in Williams No 1, the Commonwealth Parliament inserted s 32B into the Financial Management and Accountability Act 1997 (Cth), which (in conjunction with associated regulations) purports to grant the Commonwealth a general power to make, vary or administer arrangements and grants, where those arrangements or grants are specified in regulations.

The stated case raised eight questions to be answered by the Full Court. The central issues are whether the Commonwealth’s entry into the SUQ funding agreement is authorised by various appropriation acts, and if not, whether s 32B (and its associated regulations) is wholly invalid as going beyond the ambit of the Commonwealth’s executive power, and if not, whether those provisions are supported by a head of legislative power in the Australian Constitution (specifically, ss 51(xxiiiA), 51(xx) or 51(xxxix), operating in conjunction with s 61).

The Court held that the scheme was not supported by s 51(xxiiiA) because the provision of chaplaincy services is not a ‘benefit’ within the meaning of s 51(xxiiiA) in the sense of material aid (as interpreted by the Court in British Medical Association v Commonwealth [1949] HCA 44 or Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6) directly made to students. Payments to be applied as wages to chaplains who are to ‘support the wellbeing’ of students are not ‘benefits’ to students within the meaning of s 51(xxiiiA): at [47]. Nor was it supported by s 51(xx) as the scheme does not regulate or permit any act by or on behalf of a corporation: ‘[t]he corporation’s capacity to make the agreement and receive and apply the payments is not provided by the impugned provisions’ (at [50]). The Court also declined to reopen Williams [No 1] on the basis that the Commonwealth’s submissions here were ‘no more than a repetition of the “broad basis” submissions’ on executive power rejected by the majority in Williams [No 1], and noting that the Commonwealth’s arguments rested on a ‘false assumption’ about the ambit of federal executive power (see at [78]–[83]). Finally, the Court rejected the s 51(xxxix) argument as being contrary to Pape v Commissioner of Taxation [2009] HCA 23 and Williams [No 1]: appropriations do not necessarily bring the expenditures within the power of the Commonwealth. Crennan J agreed with the majority but made a reservation regarding s 51(xxiiiA) noting that it was unnecessary for the Court to come to any conclusions on the wisdom of the scheme (at [101]); instead it was only necessary to find that the scheme did not provide government assistance to or for students as prescribed and identifiable beneficiaries: [102], [110].
Continue reading

Plaintiff S156/2013 v Minister for Immigration and Border Protection

Houston Ash, ‘The High Court Upholds the “PNG Solution”: Plaintiff S156/2013‘ (11 July 2014).

The Full Court has decided the special case in Plaintiff S156/2013 v Minister for Immigration and Border Protection, and has upheld the validity of the challenged legislation and the Minister’s designation of Papua New Guinea as a regional processing country. Continue reading

The Third Part in a Trilogy on the Accusatorial Trial: Lee v The Queen

By Anna Dziedzic

Lee v The Queen Case Page

In the past year, the High Court has handed down three decisions dealing with the relationship between the compulsory examination powers given to various Australian crime commissions and the principles of a fair criminal trial.

In X7 v Australian Crime Commission [2013] HCA 29, a majority of the Court held that the compulsory examination powers given to the Australian Crime Commission did not permit the ACC to examine a person charged with an offence about matters relating to the criminal charges that he or she was facing. A compulsory examination in these circumstances would fundamentally depart from the accusatorial nature of Australia’s criminal justice system. The judges in the majority refused to interpret the Australian Crime Commission Act 2002 (Cth) as working such a fundamental change to common law principles.

In Lee v NSW Crime Commission [2013] HCA 39 (Lee #1) the High Court considered the same issue but in relation to different legislation. In Lee #1 a majority of the Court held that the Criminal Assets Recovery Act 1990 (NSW) did permit a compulsory examination on matters relating to pending criminal charges. In this case, the majority considered that the words of the statute clearly disclosed an intention to abrogate the right to silence while providing adequate safeguards to ensure that any future criminal trial was conducted fairly.

The third and most recent case on this issue was decided last month. Lee v The Queen [2014] HCA 20 (Lee #2) saw the appellants in Lee #1 return to the High Court to appeal their convictions for drug and firearms offences. In a unanimous judgment, the High Court held that the appellants had not received a fair trial because confidential transcripts of their compulsory examinations before the NSW Crime Commission had been given to the Director of Public Prosecutions to assist it to prepare the prosecution’s case. The High Court held that this was a fundamental departure from the requirements of the accusatorial trial and resulted in a miscarriage of justice.

The decision in Lee #2 has been welcomed as a victory for the right to silence. In this post, I suggest that while Lee #2 does uphold the common law principles which guide the role of the prosecution in criminal trials, the case does not fully resolve the questions that arise from the close relationship between the state authorities that investigate crime and those that prosecute it. Continue reading

Howard v Commissioner of Taxation

Michael Crawford, ‘Question: When Does a Litigant Want to be a Fiduciary? Answer: When It Involves Tax Law: Howard v Commissioner of Taxation‘ (23 June 2014).

The High Court has unanimously dismissed an appeal against the decision of the Full Federal Court in Howard v Commissioner of Taxation, which involved three appeals to the Federal Court relating to the appellant’s 2005 and 2006 taxable income. Continue reading

News: Farewell Professor Leslie Zines AO

Leslie Zines, a doyen of Australian constitutional legal academy, education and practice and author of The High Court and the Constitution, died on 31 May 2014.

On behalf of the Opinions on High team I offer our condolences and sympathy to Leslie’s family and share the sadness experienced by all those who got to know Leslie during his life. Leslie’s life was marked by achievement, dedication and generosity. Geoffrey Lindell offered a glimpse of these markers in his 2010 Federal Law Review reflection on his relationship with Leslie.

Leslie’s scholarship focussed on relationships within the federal domain and his personality and personability meant that he readily built relationships within the ANU College of Law, where he dedicated much of his working life. It was there where I met Leslie and shared a law school corridor for five years. This was a time when he was nearing the end of his career at the university and I was starting mine. His reputation as a highly esteemed scholar and intellect, something I had gleaned from his involvement in and writing about the Tasmanian Dam case (which I continue to use in my teaching), preceded him. Despite this, Leslie was accessible, friendly and generous with his wisdom and laughter. That is how I will remember him.

Can Reckless Abuse of Authority Amount to Rape?: Gillard v The Queen

By Dr Dale Smith

Gillard v The Queen Case Page

A man allegedly makes a 17-year-old perform a sexual act on him in the presence of her 16-year-old sister. He is prosecuted on the basis that neither sister consented. One argument that the prosecution puts to the jury is that any consent was negated by the man’s abuse of a position of authority or trust — he was a family friend and had known both girls since they were young.

In Gillard v The Queen [2014] HCA 16, the High Court considered what the prosecution had to prove about the mind of this man in order to convict him of crimes akin to rape. Did he have to know that he was abusing his authority or trust? Or was recklessness about that enough (and, if so, about what)? The High Court’s unanimous answer casts new light on how the Court interprets modern statutes that define sexual offences such as rape.

The alleged abuse of authority
From 1993 until 2000, two sisters spent part of the summer school holidays staying with Michael Gillard at his Canberra home. Gillard knew both sisters, born in the early 1980s, from a young age. He had met their father while serving in the Army and the two men had become friends. It was subsequently alleged that Gillard had committed a number of sexual offences against both girls while they were staying with him in Canberra. Some of the offences were alleged to have been committed against the oldest before she turned 16, while others were alleged to have been committed after both turned 16. At his trial, he was convicted of some, but not all, of the offences that were alleged to have taken place before the older sister turned 16.

At issue in the High Court was his further convictions for four offences alleged to have occurred after both sisters had turned 16, including the incident described above. Continue reading

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

We have recently passed the 20 year anniversary of the High Court’s decision in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13 (24 March 1994). However, the judgment is still subject to debate. Our current exploitation of land for natural resources has encouraged further consideration of this High Court decision. Continue reading

The High Court Upholds the Forfeiture of a Drug Offender’s Castle: Attorney-General (NT) v Emmerson

By Dr Lael Weis

Attorney-General (NT) v Emmerson Case Page

Should the state be able to seize ‘all or any’ property ‘owned or controlled by’ persons convicted of multiple drug-related offences, regardless of the connection of that property to the commission of crime?

In a recently decided case, Attorney General (NT) v Emmerson [2014] HCA 13, the High Court upheld Northern Territory criminal forfeiture legislation that authorises exactly that. In upholding the legislation, the Court held that the constitutional requirement that laws for the acquisition of property must be on ‘just terms’ is categorically inapplicable to criminal forfeiture, no matter how harsh, on the basis that it falls within a historically well-established exemption for punitive laws.

Reginald Emmerson’s crimes and possessions
In February 2011 Reginald William Emmerson was charged with two offences: the supply of 18.6646 kilograms of cannabis (with an estimated commercial value between $184,500 and $918,400, depending on the quantity in which it was sold), and the possession of $70,500 obtained from the commission of drug related-offences in the Northern Territory. In conjunction with prior convictions for possession and use (but notably not the supply or sale) of drugs, this made him eligible to have all of his property restrained in anticipation of him becoming eligible to be declared a ‘drug trafficker’ under s 36A of the Misuse of Drugs Act (NT) if he was convicted. The Director of Public Prosecutions applied to restrain his property and, after his conviction for the February 2011 charges, to have the Northern Territory Supreme Court make such a declaration. The sole and direct legal consequence of that declaration was forfeiture of Mr Emmerson’s restrained property to the Territory, pursuant to s 94(1) of the Criminal Property Forfeiture Act (NT). That particular section of the Forfeiture Act provides for the forfeiture of ‘all property … that is owned or effectively controlled by the person’ and ‘all property that was given away by the person, whether before or after the commencement of this Act’ for any person declared a ‘drug trafficker’ under s 36A of the Misuse of Drugs Act.

When Mr Emmerson was ultimately convicted of the February 2011 charges in September of that year, he forfeited property valued in excess of $850,000 to the Northern Territory, including: his home, 12 vehicles (including a ute, a boat and trailer and motorcycles) and bank accounts. All parties accepted that, apart from the $70,050 seized from Mr Emmerson’s most recent offence, the forfeited property had been acquired through legitimate means and had no connection to any criminal offence.

Mr Emmerson challenged the forfeiture on two bases: (1) on the basis that the relevant statutory provisions violated the separation of judicial power under ch III of the Commonwealth Constitution, and (2) on the basis that it effected an acquisition of property that was otherwise than on ‘just terms’ in contravention of S 50(1) of the Northern Territory Self-Government Act 1978 (Cth).

Both challenges were rejected by a 6:1 majority of the High Court (with Gageler J not deciding the ch III issue, and dissenting on the property issue).

With apologies to any Kable fans out there, this entry focuses exclusively on the acquisition of property issue. What follows is a fairly lengthy — and, OK yes, at times indulgent — discussion of some of the ins and outs and twists and turns of constitutional property jurisprudence issues implicated by the Court’s strict adherence to this categorical exemption for forfeiture laws in the Emmerson case.

Those of you who are not particularly interested in going on such a ride are probably better jumping off here, and checking out the judgment summary.

For the rest of you, welcome aboard. As Justice Hayne mused in oral argument, ‘[h]ours of innocent amusement await us on acquisition, do they not … ?’ Continue reading

Estopped from Denying the ‘Love Shack’: Sidhu v Van Dyke

By Dr Katy Barnett

Sidhu v Van Dyke Case Page

Napoleon Bonaparte said ‘the best way to keep one’s word is not to give it’. Perhaps the defendant in Sidhu v Van Dyke [2014] HCA 19 should have heeded those words, although the case came down not to the fact that Sidhu made and broke a promise, but to the fact that that the plaintiff, Van Dyke, relied upon the promise to her detriment (see the joint judgment at [58]).

Van Dyke had rented a cottage from Sidhu and his wife, who lived 100 metres away in the main homestead on the property. The property was jointly owned by Sidhu and his wife. Van Dyke and Sidhu commenced a sexual relationship which led to the breakdown of Van Dyke’s marriage. Sidhu told Van Dyke not to worry about getting a property settlement in the divorce, as he would subdivide the land belonging to him and his wife, and give the cottage to Van Dyke. However, when his relationship with Van Dyke ended some eight years later, Sidhu repudiated his earlier promises and Sidhu’s wife refused to consent to a subdivision. The High Court clarified that Australian law did not recognise Lord Denning’s ‘presumption of reliance’ in Greasley v Cooke [1980] 1 WLR 1306. In other words, Australian law does not presume reliance on the part of a representee (in this instance Van Dyke), and a representee is still required to make out detrimental reliance. Moreover, the burden of proof to establish detrimental reliance is always on the representee.

The Court unanimously concluded that Van Dyke had made out detrimental reliance and found that Sidhu was estopped from denying his promise to Van Dyke. But as the cottage had burned down and the subdivision had never taken place, Van Dyke was awarded equitable compensation reflecting the value of what she had lost. Continue reading

Conscience or Unjust Enrichment?: The Emperor’s Old Clothes: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd

By Professor Graham Virgo
Downing College, University of Cambridge

Hills Industries Case Page

The central premise of C J Sansom’s excellent novel Dominion, is that Britain surrendered to Germany in 1940 and became a satellite state of the Third Reich. Sansom describes a very different world as a consequence of this surrender, but one populated by real people whose lives were put on a very different course by that single momentous event. Such counter-factual, ‘what if?’, history is fascinating. The same game can be played with the law of restitution. What if England had not recognised the law of unjust enrichment, developed from Lord Mansfield’s judgment in Moses v Macferlan (1760) 2 Burr 1005, 97 ER 676 via the misconceived implied contract theory, and retained the equitable principles which originally underpinned restitutionary claims? But that question can be answered without resort to fictional speculation. The answer is to be found in Australia. The most recent decision of the High Court of Australia in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14 reveals the nature of this counter-factual (from an English perspective) anti-unjust enrichment, pro-Equity world (see also Elise Bant’s post here). But when that world is investigated rather more rigorously this law of restitution is, to mix the literary allusions, nothing more than Hans Christian Andersen’s Emperor, albeit one who thinks he is wearing old clothes, but he is actually wearing nothing at all. Continue reading

The High Court Strikes Down a Campaign Finance Law (Again): Unions NSW v New South Wales

By Professor Adrienne Stone

Unions NSW v New South Wales Case Page

In 1992, in Australian Capital Television v Commonwealth [1992] HCA 1, the very first case on the constitutional freedom of political communication, the High Court struck down a Commonwealth law prohibiting electronic advertising during election periods. That law had been enacted as a campaign finance reform measure aimed at reducing the reliance of political parties on their donors and thus the High Court’s first application of the freedom of political communication struck a blow to the cause of campaign finance reform in Australia.

In more than twenty years since, however, freedom of political communication cases have focused on other questions such as the protection of political process, the application of defamation law in political debate and the permissibility of insult laws. It was not until late last year, however, that the Court returned to consider the operation of the freedom of political communication to the regulation of electoral finance. In Unions NSW v New South Wales [2013] HCA 58, the Court heard a challenge brought by unions to two sections of the Election Funding, Expenditure and Disclosures Act 1981 (NSW).

What were the challenged laws?
The general scheme of this Act requires disclosure of political donations by political parties, members of parliament, candidates and ‘third party campaigners’ (other persons who incur more than $2000 in electoral expenditure annually). It also caps the amount that can be donated to these persons and the total amount of electoral communication expenditure for State election campaigns. Continue reading

Gillard v The Queen

Dale Smith, ‘Can Reckless Abuse of Authority Amount to Rape?: Gillard v The Queen‘ (2 June 2014).

The High Court has unanimously allowed an appeal against the ACT Court of Appeal’s decision to dismiss an appeal against multiple convictions for child sexual offences and rape by a family friend of the complainants. The Court quashed each of the four convictions and a new trial has been ordered for those counts. Continue reading

MacarthurCook Fund Management Ltd v TFML Ltd

The High Court has unanimously allowed an appeal against the decision of the NSW Court of Appeal on the circumstances in which a member of a managed investment scheme can ‘withdraw from’ that scheme under pt 5C.6 of the Corporations Act 2001 (Cth). Continue reading

Change of Position in the High Court: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd

By Professor Elise Bant

Hills Industries Case Page

What is the change of position defence and why is it important?
The change of position defence provides nuanced protection to good faith defendants who irreversibly change their position in reliance on receipt of an impugned benefit (such as a mistaken payment) from a plaintiff. Since its recognition a little over two decades ago by the High Court of Australia in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48, the change of position defence has assumed a position of great importance within the Australian law of unjust enrichment. Its recognition has enabled courts to take a more principled approach to the operation of unjust factors such as mistake, obviating the need for fine and ultimately insupportable distinctions between different types of mistake that traditionally operated to restrict defendants’ restitutionary liability at the expense of legitimate claims by plaintiffs. Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14 provides a stark illustration of why a change of position defence may be important, as the respondents received mistaken payments from the appellant as a result of the involvement of a third party fraudster. In reliance on those payments, they changed their position in various important ways. Unless they were successful in their pleaded defence, they would be placed in a worse position than they occupied prior to their receipt. In finding in favour of the respondents, the High Court has considered the rationale of the defence, whether it applies to non-reliance based changes of position, whether changes of position must always be valued in terms of specific monetary sums and the interplay between change of position and other defences such estoppel and the agent’s defence of payment over.

How did change of position become relevant in this case?
AFSL (a financier) was induced by a fraudster (S) to make payments to a number of businesses, including Hills and Bosch, for the purchase of non-existent equipment. S advised Hills and Bosch that the payments were for the discharge of debts owed to them by his companies (the ‘company debts’). In reliance on their receipts, Hills and Bosch treated the company debts as discharged, continued to trade with the companies and gave up the opportunity to pursue remedies in enforcement proceedings against the companies or their directors. Both recipients also gave up the opportunity of taking other steps to better their position, such as by seeking security from third parties. Continue reading

News: Chaplaincy hearing reaches its fourth day

The High Court today heard its fourth day of oral arguments in Ron Williams’s current challenge to the National School Chaplaincy Program. The High Court’s willingness to allow days of argument on major cases sharply contrasts with the United States Supreme Court, which abandoned the practice of lengthy arguments in 1849, and now typically allows just 30 minutes per side and often hears two full cases in a morning. The more relaxed approach in Australia allows arguments to develop and even alter substantially during the course of a hearing. However, that flexibility was itself a matter of controversy in Williams’s previous challenge to the Chaplaincy Program in 2011. Continue reading

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd

Graham Virgo, ‘Conscience or Unjust Enrichment?: The Emperor’s Old Clothes: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd‘ (19 May 2014).

Elise Bant, ‘Change of Position in the High Court: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd‘ (9 May 2014).

The High Court has unanimously dismissed an appeal against the decision of the NSW Court of Appeal in a case concerning (among other things) the scope of so-called ‘defences’ to restitutionary claims, specifically the change of position defence. Continue reading

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

The High Court played a role on both occasions when jury findings against Raymond Carroll in relation to the death of toddler Deidre Kennedy were overturned on appeal. In 1985, Carroll’s conviction for Kennedy’s murder was quashed by Queensland’s Court of Criminal Appeal, relying in part on the High Court’s judgments in Chamberlain (to hold that the jury should have been directed that it should not rely on forensic evidence that his teeth matched a bite on the toddler’s body unless satisfied of that fact beyond reasonable doubt) and Markby, Perry and Sutton (to hold that ‘similar fact’ evidence of Carroll’s alleged biting of another child was inadmissible). Each of these High Court judgments have since been qualified by later High Court judgments (Edwards and Pfenning) and (in some states) legislation. More importantly, in 2002, the High Court ruled that Carroll’s subsequent conviction for perjury (for allegedly lying at the 1985 trial when he denied murdering the toddler) was an abuse of process because of the rule against double jeopardy. Following England’s lead, most Australian states and territories have since enacted exceptions to the rule against double jeopardy.

Yesterday, the Queensland Attorney-General announced an extension to the state’s existing exceptions to the double jeopardy rule that has particular implications for Raymond Carroll: Continue reading

The Court Hurts: Commonwealth v Australian Capital Territory (Same Sex Marriage Case)

By Brad Jessup

Commonwealth v Australian Capital Territory Case Page

On 12 December 2013 the High Court revealed its decision in Commonwealth v Australian Capital Territory [2013] HCA 55 (Same Sex Marriage case) on the Commonwealth’s challenge to the Marriage Equality (Same Sex) Act 2013 (ACT), and at the same time it reduced the possibilities for other state and territory proposals for so-called ‘marriage equality laws’.

This blog post presents an alternative way of understanding the case and judgment in the Same Sex Marriage case. I use my interests in the case, my background exposure to the jurisprudence of same sex marriage, and my experiences following the decisions of the High Court of Australia throughout 2013 as an editor of the Opinions on High blog to support my autoethnographic analysis.

I will try to articulate why, despite being reluctant to engage with the issue of same sex marriage for so long, I was surprised and hurt when I learnt of the decision of the High Court.

From Canberra to California
Soon after I began my academic career in Canberra one of my new colleagues entered into Australia’s first public same sex civil partnership. Other new Canberra friends registered their relationship in accordance with the Civil Partnerships Act 2008 (ACT) over the counter while paying their vehicle registration. My boyfriend and I had been ACT residents for about six months and together for over two years. So we could have done the same. We didn’t. We didn’t even discuss it.

My scholarly interests remained elsewhere. Others had been productive, provocative and persuasive in the space. This was so especially following the passage of the Marriage Amendment Act 2004 (Cth), which asserted the federal Parliament’s intent that marriage be a union of a woman and a man. Moreover, I had ‘troubles’ with marriage; let alone ‘gay marriage’, as an exclusionary, archaic institution. Nevertheless, I was not entirely agnostic. I had responded to queries from curious friends about the requirement of celebrants to pronounce the meaning of marriage at their weddings. I also became intrigued by the constitutional, and more so the geographical and sociological, battles over same sex marriage within the States of the US. Continue reading

News: One-person parole law enacted in Victoria

In 1996, the High Court – in arguably its most significant constitutional law decision in recent decades – struck down a NSW law providing for the continued detention of one person, Gregory Wayne Kable, ruling that a number of aspects of that law, including its one-person nature, were incompatible with the institutional integrity of state Supreme Courts required by the federal constitution. Last year, the Court revisited that case, ruling out Kable’s claim that he was falsely imprisoned under the invalid law. It seems likely that the High Court will revisit that decision in another way this year. The Victorian Parliament today enacted a Bill barring parole except in cases of permanent physical incapacity or imminent death for just one person – the ‘prisoner Julian Knight’.

Continue reading

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

A recent article in Slate reported that female lawyers who dress too “sexily” are said to be a “huge problem” in US courtroom. Some courts have instituted “dress codes” and some universities have instructed their students on what appropriate dress should be. The dress codes and instructions have included instructions for men, but have concentrated on female clothing. When I posted this on Facebook it started off a discussion. A number of male lawyer friends made the point that men were subject to dress codes too, and that men who didn’t wear ties or who wore short sleeves would be likely to contravene the dress code. This is true. However, I think that women have to navigate a vastly more complex situation. Continue reading

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

A majority of Canada’s Supreme Court today ruled that:

the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.

‘[T]he Court’ the Court referred to, was, of course, the very Court that made that ruling. If the dissent of Moldaver J had prevailed, Nadon J would now be (and would have been for months) a fellow member of the Court that just ruled him ineligible for membership. The background to the decision is described hereContinue reading

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