By Anna Chapman
Earlier this month the High Court indicated it was prepared to hear a legal case that tests the ability of intersex Australians to be legally recognised as being neither male or female.
The High Court hearing will be the final decision in a claim initiated in 2010 by NSW resident Norrie, who had applied to the NSW Registry of Births, Deaths and Marriages for a certificate to register a change of sex from male to ‘non-specific’.
The evidence before the hearing was that Norrie (who does not use a last name) did not identify as either male or female. Although at birth Norrie’s sex had been recorded as male, as an adult Norrie had undergone medical procedures, and now self-identified — and was identified in the community — as androgynous.
Statutory declarations from Norrie’s doctors supported the registration of a change in sex to ‘non-specific’. The NSW Registrar initially granted Norrie’s application, but this was later revoked.
Norrie appears to be the first person in Australia to litigate for the right to be identified as being of ‘non-specific’ sex. This ground-breaking litigation squarely challenges the capacity of law to countenance sex and gender diversity. Continue reading
By Anna Dziedzic and Sophie Walker
Magaming v The Queen Case Page
There is only one set of offences under federal law that attracts a mandatory sentence, and perhaps unsurprisingly these offences all relate to people smuggling. Upon conviction of a crime of aggravated people smuggling under the Migration Act 1958 (Cth), the sentencing judge must impose a jail term of at least five years. In Magaming v The Queen  HCA 40, six of the seven judges of the High Court upheld the validity of this mandatory sentencing provision under the Australian Constitution. But this is only part of the story. After all, the principal character is Bonang Darius Magaming, a 19 year old Indonesian fisherman who was recruited to steer the boat which carried 52 asylum seekers to Australia. On 6 September 2010, his boat was detained by the Australian Navy near Ashmore Reef. Mr Magaming pleaded guilty to the aggravated offence of smuggling at least five people into Australia. At sentencing, the judge described Mr Magaming as ‘a simple Indonesian fisherman’ and explained that but for the mandatory sentencing provision, he would have imposed a lighter sentence. The judge said:
The seriousness of [Mr Magaming’s] part in the offence therefore falls right at the bottom end of the scale. … In the ordinary course of events, normal sentencing principles would not require a sentence to be imposed as heavy as the mandatory penalties that have been imposed by Federal Parliament. However, I am constrained by the legislation to impose that sentence.
Neither the pleadings, nor the judgment, nor media reports manage to fill in many of the gaps in Mr Magaming’s story. Why did he decide to join the crew? How was his mental and physical health? How did the imposition of a mandatory sentence which the judge considered well beyond the severity of the sentence that would have otherwise been imposed affect him? Continue reading
By Megan Driscoll
Plaintiff M79/2012 v Commonwealth Case Page
Asylum seeker policy has been a polarising subject in Australian politics for more than a decade and it continues to be so with the recently-elected Abbott government attempting to impose its perspective on the political debate on the topic by mandating asylum seekers arriving by boat be referred to as ‘illegal’. Consecutive federal governments have introduced increasingly harsh schemes to deal with the perceived influx of people arriving in Australian territorial waters by boat to seek asylum. The High Court is yet to hear a case challenging the legality of the current arrangement of transferring asylum seekers to Papua New Guinea, Plaintiff S156/2013 v Commonwealth (transcripts of directions hearings here and here).
Plaintiff M79/2012 v Minister for Immigration and Citizenship  HCA 24 (Plaintiff M79) deals with another aspect of the asylum seeker statutory regime: the validity of a temporary safe haven visa granted to a person who had not made an application. In this instance, the Minister granted a temporary safe haven visa to the plaintiff, a Sri Lankan national who arrived by boat on Christmas Island in February 2010 seeking Australia’s protection. The validity of the visa depended on the criteria the High Court determined the Minister was bound to consider when granting the visa, and whether the Minister had addressed those criteria. A majority of the Court found that the sole criterion binding the Minister was whether or not it was in the ‘public interest’ and that it was within the Minister’s discretion to determine what factors were relevant to that interest. Interestingly, Plaintiff M79 could signify that the High Court is beginning to take a more deferential approach to ministerial conduct in deciding to grant or decline visa applications than it has in the recent past, including in the case that rejected the previous government’s so-called ‘Malaysian solution’. Continue reading
By Sarah Mulcahy and Jeannie Marie Paterson
Google v ACCC Case Page
In Google Inc v Australian Competition and Consumer Commission  HCA 1 the High Court held that Google had not engaged in misleading or deceptive conduct contrary to s 52 Trade Practices Act 1974 (Cth) (TPA) (now s 18 of the Australian Consumer Law (ACL)) in publishing ‘sponsored links’ in response to web page searches. The Australian Competition and Consumer Commission (ACCC) argued that Google engaged in misleading and deceptive conduct because its program allowed advertisers to enter the names of competitors as keywords so that a ‘sponsored link’ to the advertiser’s company would arise when the competitor’s name was entered into the search engine. Although the ‘sponsored links’ by the advertisers were misleading or deceptive, Google was held not to be responsible for the misleading or deceptive conduct because it did not author the ‘sponsored links’, nor did it endorse the misleading representations of the advertisers.
However, the decision does not relieve those who control or administer internet sites of liability for misleading or deceptive information posted on those sites. In this case, the links were generated by a computer algorithm over which Google had limited control. But in other situations where an administrator has greater control, it is possible that the administrator may still be liable for the misleading or deceptive conduct of posters or advertisers. Continue reading
By Professor Adrienne Stone
A-G (SA) v Corporation of the City of Adelaide Case Page
Two weeks ago, the Federal Court dismissed a challenge by members of Occupy Melbourne against the enforcement of bans on camping and advertising in inner Melbourne’s squares and gardens. Justice North relied in large part on a High Court ruling from March, concerning Samuel Corneloup and his brother Caleb, members of a street church that regularly engaged in preaching on the Rundle Mall in Adelaide. Their noisy preaching gave rise to one of two important freedom of political communication cases in the High Court this year: A-G (SA) v Corporation of the City of Adelaide  HCA 3 (‘Corneloup’s Case’). (The other, Monis v The Queen  HCA 4, is discussed here.)
Adelaide’s preaching ban
Preaching on the Adelaide mall (like other ‘roads’) is subject to Council By-Law No 4 which (subject to exceptions for election campaigning) provides that ‘[n]o person shall without permission on any road
2.3 preach, canvass, harangue, tout for business or conduct any survey or opinion poll …
2.8 give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter.
Disputes arose between the Corneloup brothers and the Adelaide City Council over the Corneloups’ preaching that resulted, first, in the conviction of Samuel Corneloup in the Magistrates Court of South Australia in 2010 and, second, in separate proceedings brought by the Council to restrain the Corneloups and others from preaching on the Rundle Mall. Continue reading
By Martin Clark
On Friday 13 September 2013 I was lucky enough to spend an hour interviewing Professor William Gummow AC about his time on the High Court of Australia (1995–2012).
Professor William Gummow AC retired in October 2012 from the High Court after 17 years on the bench. Prior to that he sat on the Federal Court for ten years, and before that had been an influential and highly-regarded member of the Sydney Bar, a partner at Allen Allen and Hemsley, and also lectured part-time at the Sydney Law School from 1965 until 1995. He is now Professor of Law at the Sydney Law School and the Australian National University.
In this extensive interview, Professor Gummow discusses a wide range of topics, including the similarities and differences between the judges and processes of the High Court of Australia and other apex courts around the world, his views on advocacy before the High Court, and changes in the legal profession. He also offers his thoughts on the enduring importance of several great Australian judges, including Sir Owen Dixon, Sir Victor Windeyer, Sir Garfield Barwick and Sir Nigel Bowen. Continue reading
By Laureate Professor Cheryl Saunders AO
The latest proposal to amend the Commonwealth Constitution to ‘recognise’ local government may go down in history as one of the most inept attempts at constitutional change in Australia. Insofar as it has an indirect link to the decisions of the High Court in Pape v Commissioner of Taxation  HCA 23 and Williams v Commonwealth  HCA 23 it merits a post on Opinions on High. In any event, there are lessons to be drawn from the history of this proposal, as a guide to the formulation and conduct of future referendum proposals.
Constitution Alteration (Local Government) 2013 (Cth) passed both Houses of the Commonwealth Parliament on 24 June 2013. The impetus for it derived from a long-held desire on the part of local government to be recognised in the Commonwealth Constitution as the third arm of Australian government. This project is fraught because recognition almost inevitably involves substantive change of some kind in the operation of the Australian federation, in which the relations between the other two arms of government already is under strain. A proposal cast in terms of symbolic recognition was rejected at referendum in 1988. An earlier proposal to establish a direct financial relationship between the Commonwealth and local government was rejected in 1974 (see here). Continue reading
By Professor Michael Crommelin AO
Fortescue Metals Group Ltd v Commonwealth Case Page
The Minerals Resource Rent Tax Act 2012 (Cth) (MRRT Act) has been surrounded by political and legal controversy throughout its short life. The High Court’s unanimous rejection of a recent constitutional challenge has resolved the legal controversy. It remains to be seen whether, and when, the incoming Federal Government may resolve the political controversy by fulfilling its election pledge to repeal the Act.
In Fortescue Metals Group Ltd v Commonwealth  HCA 34, the plaintiff challenged the constitutional validity of the MRRT Act and three related Acts which imposed the MRRT (MRRT Legislation) in proceedings commenced in the High Court of Australia. The MRRT Act provides that a miner is liable to pay minerals resource rent tax (MRRT) assessed in accordance with the MRRT Act.
The plaintiff argued four grounds for invalidity of the MRRT Legislation: (1) discrimination between States contrary to s 51(ii) of the Constitution; (2) preference to one State over another contrary to s 99 of the Constitution; (3) contravention of the Melbourne Corporation doctrine established in the State Banking Case  HCA 26; and (4) contravention of s 91 of the Constitution which confirms the authority of a State to grant aid to mining. It is notable that the plaintiff did not invoke s 114 of the Constitution which prohibits the imposition by the Commonwealth of any tax on property of any kind belonging to a State.
The challenge failed on all grounds. Continue reading