The High Court has published its reasons for its 19 June answers to a special case on private prosecutions of foreign officials at the International Criminal Court. Section 13(a) of the Crimes Act 1914 (Cth) provides that a person can institute trial proceedings against another person for an indictable offence against a law of the Commonwealth, unless that Act creating that offence shows a contrary intention. Section 268.121(1) of the Criminal Code provides that offences against Div 268 of the Code, which includes, among other things, crimes against humanity, cannot be commenced without the consent of the Attorney-General of the Commonwealth. On 16 March 2018, the plaintiff attempted to commence a prosecution against Myanmar State Counsellor Aung San Suu Kyi, alleging that Suu Kyi had committed crimes against humanity, contrary to Div 268.11, by lodging a charge sheet and draft summons at the Melbourne Magistrates Court. On the same day, the plaintiff also requested the Attorney-General of the Commonwealth’s consent to begin the prosecution, which the Attorney-General declined to order. On 23 March, the plaintiff commenced proceedings against the Attorney-General in the High Court’s original jurisdiction, seeking writs to quash the decision not to consent to the prosecution and to compel the Attorney-General to reconsider the request.

Majority

A majority of the Court held that the Attorney-General’s decision was the only one legally open on the basis that div 268 offences can only be prosecuted by the Attorney-General, and thus div 268 provides a contrary intention for s 13(a), precluding any private prosecutions for offences against div 268. Nettle and Gordon JJ and Edelman J dissented. Continue reading →

The High Court has published its reasons for dismissing an application challenging the Australian Electoral Commission’s practice of publishing information about indicative two-candidate preferred counts for divisions of the House of Representatives. The Electoral Act 1918 (Cth) requires the scrutiny of votes in divisions to include an Indicative TCP Count. This count takes place after first preference votes are counted, and it is a ‘count … that, in the opinion of the Australian Electoral Officer, will best provide an indication of the candidate most likely to be elected for the Division’. The process involves the AEC revealing one or two candidates selected by the Commission as the TCP Candidates (the two most likely to be elected), and the progressive results of the indicative counts leading to the final count are called the TCP Information.

The plaintiffs were candidates for the United Australia Party for House and Senate seats in the 18 May 2019 election. In April 2019, the plaintiffs filed an application for a constitutional writ challenging the AEC’s practice of releasing Indicative TCP counts for divisions where polls had closed and the counts had begun while other the polls for other divisions still remained open. The plaintiffs contended that the AEC could not do so for two reasons: first, publishing that information before the close of all polls was not authorised by the Electoral Act, or in the alternative, publishing TCP counts will polls were open in other seats would ‘impermissibly distort the voting system’ and ‘compromise the representative nature of a future Parliament’ contrary to the constitutional requirement for direct and popular choice in ss 7 and 24 of the Constitution.

On 7 May 2019, after the conclusion of the Full Court hearing, the High Court dismissed the application. On 14 August 2019 the Court published its reasons for that decision, which was unanimous. Continue reading →

The High Court has allowed an appeal in a cause removed from the Federal Court appealing an Administrative Appeals Tribunal decision on whether provisions of the Public Service Act 1999 (Cth) on terminating a public servant’s employment contravene the implied freedom of political communication in the Commonwealth Constitution. The provisions under challenge here are ss 13(11), 10(1) and 15. Section 13(11) requires that APS employees ‘at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS’. Section 10(1) states that the APS Values include that the APS is ‘apolitical, performing its functions in an impartial and professional manner’. Section 15(1) empowers an Agency Head to sanction an APS employee who is in breach of the code, including by terminating their employment.

In 2006, the respondent accepted a position at the Ombudsman and Human Rights and Equal Opportunity Commission, which later became part of the Department of Immigration and Citizenship. In 2012, the respondent began to use an anonymous Twitter account @LaLegale partly to criticise DIC, its employees and policies, as well as the immigration policies of both major parties. After a series of DIC investigations into the account that discovered the respondent’s identity, in October 2012 a delegate of the DIC Secretary determined that the respondent had breached the APS Code of Conduct and recommended the sanction of termination of employment. The respondent sought an injunction to prevent the Department from terminating her employment, which was rejected by the Federal Circuit Court, and in September 2013 the delegate finalised the termination of employment.

The Department then rejected the respondent’s claim for compensation for a workplace injury for depression and anxiety following the termination, on the basis that the termination was a reasonable administrative action. Section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) defines injury as including an aggravation of a mental injury that arose out of, or in the course of, employment, but excludes any aggravation caused by ‘reasonable administrative action taken in a reasonable manner’ about an employee’s employment. The respondent appealed that decision to the AAT, where the central issue was whether or not the respondent’s termination fell outside the exclusion in s 5A. The respondent contended that the exclusion did not cover the Department’s actions because the provisions contravened the implied freedom of political communication. After the cause was removed to the High Court for determination of the implied freedom question, the respondent contended before the Court that the provisions could not apply to ‘anonymous’ communication about the APS, and that, if the provisions did apply to anonymous communications, they were an unjustifiable burden on the implied freedom.

The High Court unanimously allowed the appeal, rejecting the respondent’s arguments. Continue reading →

The High Court has dismissed two appeals against judgments of the Magistrates’ Courts of Victoria and Tasmania, rejecting challenges to two laws restricting communication and activities near abortion providers on the basis that those laws contravened the implied freedom of political communication. Section 185D of the Public Health and Wellbeing Act 2008 (Vic) prohibits various behaviours, including communicating in relation to abortions with a person accessing an abortion provider in a ‘safe access zone’ around the clinic, if that communication is likely to cause distress or anxiety (the ‘communication prohibition’). Section 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) prohibits abortion protests that can be seen or heard by a person accessing an abortion clinic (the ‘protest prohibition’). Clubb had spoken to a couple seeking to access a Melbourne clinic and attempted to give them anti-abortion literature, and was convicted of an offence against s 185D. Preston stood on a street corner near a Hobart clinic with placards with statements about the ‘right to life’ and depictions of a fetus, and was convicted of an offence against s 9(2). Each appellant sought review of the magistrate’s decision in the Supreme Courts of their states, which were then removed to the High Court. Before the High Court, each appellant claimed that the law they were convicted under contravened the implied freedom of political communication.

The High Court unanimously dismissed both appeals.

Joint Judges ([1]–[130])

The joint judges (Kiefel CJ, Bell and Keane JJ) first restated the Lange test on the implied freedom as reformulated in McCloy v New South Wales [2015] HCA 34, (at [5]):

1. Does the law effectively burden the implied freedom in its terms, operation or effect?
2. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

The joint judges then rejected the appellants’ argument that the Court should approach the question as a derogation from the ‘right to protest and demonstrate’: the Court declined on the basis that the implied freedom does not guarantee a right to a mode of protest, that the common law right to protest may be abrogated by statute, and that this approach would depart from the Court’s settled approach to these questions (at [8]).

Dealing first with the Clubb appeal, after laying out the facts, proceedings and legislation (at [10]ff), the joint judges turned to the ‘threshold issue’ of whether Clubb’s conduct actually involved ‘political communication’: the Attorney-General of the Commonwealth contended that Clubb’s conduct appeared to be only directed at a woman accessing the clinic, and thus was not a communication about a political or government matter (at [25]–[27]). The joint judges acknowledged the force in this contention: ‘A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial.’ (at [29]). Here, handing over an anti-abortion pamphlet lacked a connection with the ‘electoral choices to be made by the people of the Commonwealth’, and was not about law or policy makers, or encourage the woman to vote against abortion or publicly debate it: rather it simply sought to convince her not to have an abortion (at [31]). Noting the point in Lambert v Weichelt (1954) 28 ALJ 282 that the High Court should avoid investigating and deciding constitutional questions unless the facts make it necessary (at [32]ff), the joint judges stated that this practice was not a rigid rule, and that this case presented three ‘unusual features’ which warranted dealing with the Clubb matter even if it did not involve political communication (at [36]). First, the line between speech for legislative or policy change and speech directed at an individual’s moral choice ‘may be very fine where politically contentious issues are being discussed’ (at [37]). Second, while there might be no connection between the implied freedom and the facts in the Clubb matter, the question might arise in other similar cases, including in Preston (at [38]). Third, if Clubb’s contentions are correct she is entitled to have her conviction set aside: judicial economy favours dealing with them (see at [39]).

Moving to the McCloy steps, the joint judges accepted the views of both Clubb and the Solicitor-General for Victoria that the communication prohibition proscribes communications that could be called ‘political’ and thus is a burden for the purposes of the first step (at [41]–[43]). Turning to the second ‘legitimate purpose’ step, the joint judges reiterated that a purpose is compatible with maintaining the constitutionally prescribe system of representative and responsible government (and thus legitimate) if it does not impede the functioning of that system (at [44]). Here, the statute’s express purpose is to protect the safety, well-being, privacy and dignity of people accessing lawful medical services, and staff and others associated with those services (at [47]). The joint judges emphasised the protection of dignity element of the communication prohibition, drawing on the writings of Aharon Barak (at [51]):

Generally speaking, to force upon another person a political message is inconsistent with the human dignity of that person. As Barak said, ‘[h]uman dignity regards a human being as an end, not as a means to achieve the ends of others’. Within the present constitutional context, the protection of the dignity of the people of the Commonwealth, whose political sovereignty is the basis of the implied freedom, is a purpose readily seen to be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Thus, when in Lange the Court declared that ‘each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia’, there was no suggestion that any member of the Australian community may be obliged to receive such information, opinions and arguments.

The joint judges rejected Clubb’s argument that the communication prohibition burdens the anti-abortion side of the debate more than the pro-abortion side, and that discomforting speech cannot be excluded (at 52]). First, the prohibition is ‘viewpoint neutral’ in that it prohibits any behaviour ‘in relation to abortions’ rather than ‘against’ or ‘for’ abortions, and pro-abortion activists might equally cause distress or anxiety to a person seeking an abortion by co-opting them into a campaign, or by ignoring their privacy and dignity (at [54]–[56]). Second, the ‘discomfort’ argument ignores the words of the statutory prohibition, which is aimed at words ‘reasonably likely to cause distress or anxiety’, not mere discomfort or hurt feelings; and more broadly, debates about feelings in political communication in forums of public debate voluntary entered into have no application to individuals attending to a private health issue, who may be in a vulnerable state, and which are aimed at preventing them from obtaining medical advice and assistance (at [57]–[59]).

Having concluded that the second step was met (see [60]), the joint judges moved to the proportionality analysis. Their Honours first rejected the arguments by the Solicitor-General of Victoria that it was not necessary to apply all of the proportionality testing on the basis that the burden was minimal and for a compelling legislative purpose: while the burden may be slight, McCloy requires that any burden be justified (at [64]). The joint judges emphasised that proportionality requires the Court to assess only whether the law can be seen as irrational in pursuing its object or placing an ‘undue’ burden on it, rather than asking whether the legislature placed a ‘correct’ balance between the restriction and implied freedom (at [66]) or weighing the ‘general social importance’ of the law and the implied freedom (at [72]).

Here, the communication prohibition did pass this step. It was spatially limited to the areas for accessing abortion clinics, preventing a person seeking to access the clinic from hearing or seeing communication about abortion (at [78]–[79]). Contrary to Clubb’s submission, there was no evidence that on-site protests were specially effective for political communication about abortion, and cannot be usefully compared to forest protests which do not aim at the dignity and privacy of people targetted by the activists’ messages (at 82]). Further, anti-abortion activists are able to communicate their messages anywhere outside the safe access zones (at [83]). The joint judges then moved to reject Clubb’s arguments that less burdensome methods that might have achieved similar results (see [88]–[95]). Finally, the joint judges held that the balance was adequate: the law maintained the dignity of people by ensuring they are not ‘held captive’ by an ‘uninvited political message’, while also being a slight burden on both subject matter and geographical extent (at [99]–[100], and see summary at [102]). Consequently, the Clubb’s appeal must be dismissed (at [103]).

Moving then to Preston, the joint judges again recapitulated the facts, proceedings and legislation (at [105]ff), before noting that the Tasmanian statute differed from the Victorian one in several ways: it does not expressly state its objects, it is directed at ‘a protest’ about abortion, and its scope is not limited by a requirement that the protest be ‘reasonably likely to cause distress or anxiety’ (at [116]). Turning to the McCloy steps, the joint judges noted that Preston and the Solicitor-General for Tasmania accepted that the focus on ‘protest’ showed a burden directed at a clear mode of political communication in the form of a public demonstration (at [118]–[119]). On legitimate purpose, the joint judges held that the Tasmanian statute was aimed at protecting the safety, wellbeing, privacy and dignity of people accessing abortion clinics and that like the Victorian statute this too was a ‘viewpoint neutral’ prohibition related to any protest, and would be contravened by pro-abortion protests (at [120]–[123]). It was likewise suitable because it facilitated effective access to abortion services, and prevented those seeking to access medical advice and assistance from being deterred from doing so (at [124]). The joint judges then rejected Preston’s submission that the prohibition applies regardless of whether any harm, anxiety or distress is likely or intended; the absence of that limiting requirement here is irrelevant because public demonstrations about abortions ‘inevitably constitute a threat to the equanimity, privacy and dignity’ of a person seeking abortion services (at [125]–[126]). Finally, the Tasmanian statute was adequately balanced for the same reasons as the Victorian: it was geographically restricted, imposes a slight burden, and does not discriminate between sides in the debate (at [127]). Consequently, Preston’s appeal must likewise be dismissed.

Gageler J (at [131]–[214])

Gageler J began with Clubb’s matter, holding that because she does not assert that she was engaged in any form of political communication in handing out the leaflets, her challenge to her conviction under s 185D will fail, even if she succeeds in establishing that the communication prohibition infringes the implied freedom (at [131]–[132]). Consequently, there is no need to answer that question to determine her criminal liability, and the Court ought to decline to do so (at [133]). Gageler J stated that he agreed wholly with Gordon J’s analysis of this point, and that he would add further points on the institutional practice and statutory interpretation points that underlay the approach to Clubb (at [134]).

First, the Court’s practice of declining to answer any constitutional question that was not necessary to answer on the facts of a matter ought to be followed here: the Court’s jurisdiction is to resolve controversies about legal rights and liabilities about real, concrete issues, not declare legal principles about abstract ones, and this practice should not be departed from for reasons of convenience (at [135]–[138]). Secondly, the principle of severance — that, absent a contrary intention, a legislature should be assumed to intend that if a law would fall foul of the constitutional limits on legislative power, it is still intended to operate to the extent that it is constitutionally permitted (at [140]) — should apply: the prohibition against ‘communicating … in relation to abortions’ can be read to exclude political communication, and there is nothing in the text or context of the Public Health Act to suggest the legislature did not intend for it to have no application if it did not apply to political communication (at [149]). Gageler J then rejected Clubb’s suggestion that severance would require the prosecution to prove beyond reasonable doubt that she was not engaged in political communication, which the prosecution did not do: severance does not work in that way, but rather to take political communication outside the scope of the provision’s operation to form an exception for prohibited behaviour that was political communication (at [151]). Gageler J concluded that ‘[i]f the freedom of poltiical communication was to be relied upon to impugn her prosectuion … the practical onus was on Mrs Clubb to bring such material forward. She did not do so’ (at [153]).

Turning then to Preston, Gageler J noted the facts of the case and that the Preston matter was ripe for determination (at [156]). Gageler J treated the test as the Lange-Coleman-McCloy-Brown analysis of three stages, and emphasised that ‘structured proportionality’ is no more than an intellectual tool, and noted his Honour’s earlier interventions on this topic (at [159]ff). Gageler J’s framework in this case is consistent with his Honour’s approach in Brown: burden, calibration, purpose, and justification (at [162]):

first, to examine the nature and intensity of the burden which the protest prohibition places on political communication; second, to calibrate the appropriate level of scrutiny to the risk which a burden of that nature and intensity poses to maintenance of the constitutionally prescribed system of representative and responsible government; third, to isolate and assess the importance of the constitutionally permissible purpose of the prohibition; and finally, to apply the appropriate level of scrutiny so as to determine whether the protest prohibition is justified as reasonably appropriate and adapted to achieve that purpose in a manner compatible with maintenance of the constitutionally prescribed system of government.

The burden here was direct, substantial and discriminatory against a traditional form of political communication both on its face and in its practical operation (at [174]): indicated by its direction against public demonstrations (at [164]), limited to content relating to abortion (which, combined with the public demonstration focus, made this inherently about abortion legislation and politics: at [165]–[167]), it is site-specific, and in its practical operation time-specific (at [168]–[169]), and though its legal operation is viewpoint neutral, for Gageler J it does affect anti- and pro-abortion activists differently because only anti-abortion activists would seek to express their disapproval there (at [170]ff).

Moving to calibration, Gageler J rejected the Attorney-General for Victoria’s submission that a mere ‘rational connection’ between the prohibition and the purpose is required: that level of scrutiny is only for indirect or incidental burdens on political communication; here a higher level is required because of the higher risk to the constitutionally prescribed system of representative and responsible government (at [175]–[177]). Gageler J accepted the suggestion of the Attorneys-General of the Commonwealth and New South Wales that useful parallels can be drawn from United States First Amendment jurisprudence and its connections between levels of scrutiny and standards of justification based on the kind of restriction (see [178]ff). Given the burden here, it could only be justified if it can withstand the close scrutiny of a compelling justification (again, as in Brown), namely: it must be more than constitutionally permissible, and instead ‘compelling’, and it must be ‘closely tailored’ to the achievement of the purpose, and not burden the freedom more than is reasonably necessary for that purpose (at [183]–[184]).

That purpose is determined by subject matter, text and context. After noting the parties’ submissions (see [187]ff) which drew on US jurisprudence, Gageler J stated that neither Preston nor the Attorney-General for Victoria captured the ‘richness’ of the US approach or adequately related it to the Australian context: unsolicited and unwelcome political speech is part of a ‘right to be let alone’ that was more accurately an ‘interest’ that States might protect (at [193]). In Australia such speech is not necessarily incompatible with the constitutionally prescribed system of representative and responsible government, but rather, like the US example, protecting against unwanted or offensive communication is a permissible purpose which, depending on context, may justify a burden (at [196]). Here, Gageler J held it did: prohibiting protest within an access zone aims to ensure women have access to abortion services in ‘an atmosphere of privacy and dignity’: ‘he purpose so identified is unquestionably constitutionally permissible and, by any objective measure, of such obvious importance as to be characterised as compelling.’ (at [197]).

Moving finally to the justification — whether the burden is significantly more than is reasonable for the purpose — Gageler J noted that the Tasmanian law drew a clearer, ‘bright line’ rule against any interference than the Victorian (at [200]ff), reviewed the approaches to safe zones in other comparable jurisdictions (at [202]ff), and emphasised that Australian courts cannot ‘tinker’ with legislative designs (at [207]). While the radius of 150m was not clearly outlined in the legislative materials or evidence, Magistrate Rheinberger’s findings that there were plenty of locations at which protestors could be outside the zone but communicate their message to passersby was ‘decisive’ (at [211]): 150m was ‘close to the maximum reach’, but still compatible with the purposes of protecting access to the facilities (at [213]).

Nettle J (at [215]–[325])

Nettle J agreed with the conclusions of the joint judges but differed in some respects from their reasoning (at [215]).

On the threshold question, Nettle J noted that the Attorney-General of the Commonwealth’s submissions were based on Gageler J’s views in Tajjour (at [219]), and that the Court ordinarily would not consider reading down or severance until it had decided that the law, on its natural and ordinary meaning, construed in context and having regard to its purpose, would be invalid unless read down or severed (at [220]). After reviewing a range of cases in which that happened (see [221]ff), Nettle J stated that those cases ‘support the idea that there are matters in which it is sufficient to dispose of an attack on the constitutional validity of a provision to conclude that, assuming without deciding that the impugned law would otherwise be invalid, it could be read down or severed in its operation in relation to the plaintiff and so be considered as valid to that extent.’ (at [230]).

Despite this being sometimes useful, it should not apply here: Clubb has been convicted of a criminal offence after a Magistrate rejected her contention that the provision was an unjustified burden on the implied freedom of political communication, and appealed that part of the decision to the Supreme Court of Victoria and ultimately the High Court: thus the constitutional validity of s 185D is not an ‘academic or hypothetical question’, and if it is invalid then Clubb has been wrongly convicted, and thus she has a direct and immediate interest in resolving hat question (at [231]–[232]). Nettle J then raised several constructional problems suggesting that s 185D could not be read down to avoid it impermissibly burdening the implied freedom (see at [233]ff), noted that the Crown in the Magistrates Court had not sought to contend that it could be read down (at [238]ff), and also that no finding has been made on whether Clubb’s communication is on a government or political matter (at [240]). Overall, then, it would be a ‘practical injustice’ and of ‘little practical advantage’ to dispose of the matter now as a threshold issue (at [242]).

After recounting the facts of the Clubb appeal and the Victorian legislation (at [243]ff), Nettle J outlined the basis and requirements of the implied freedom and emphasised that it is a restriction on legislative power, and not, as Clubb’s arguments frequently assumed, a personal right of free speech similar to that of the US First Amendment (at [247]–[248]). Rather, the content of the freedom depends on what is relevant to the ‘common convenience and welfare of society’ from time to time: while the range of matters relevant to ‘government and political matters’ is broad, it does not necessarily include all matters of ‘political controversy’; and while abortion is one such subject matter, not necessarily all communication about it is political (for example, a private consultation between a pregnant person and their doctor about an abortion is not a political communication about abortion): at [249].

Nettle J raised doubts about whether s 185D constituted a burden: while it restricts the freedom by proscribing certain behaviours within 150m of abortion clinics, it leaves people free to say what they wish outside that radius, and it is not clear on the evidence here that those restrictions have any effect on the efficacy of anti-abortion political communication (at [250], [251]). Certainly it prevents protestors like Clubb from being able to ‘accost and harangue’ people seeking abortions, but Nettle J reiterated that that decision is not a political decision but rather a personal one informed by medical advice and a person’s ethical, and religious beliefs ‘qualitatively different from a political decision as to whether abortion law should be amended’ (at [252]). Nettle J noted, however, that previous High Court authority establishes that the burden test is qualitative not quantitative, and looks to the ‘terms, operation and effects, both legal and practical’, of the law (at [254]). Here, s 185D and its prohibited behaviour does practically prohibit protests about abortion and is qualitatively significant, even if ‘quantitatively insignificant’ (at [255]).

Moving to the two-step inquiry of whether the law is for a legitimate purpose consistent with the system of representative and responsible government, and whether it is appropriate and adapted to that purpose, Nettle J held that was aimed at a legitimate purpose: it aims to prevent particular kinds of conduct by prohibiting behaviours that go against the safety and wellbeing of women, support persons and staff to access abortion clinics; ‘The protection of the safety, wellbeing, privacy and dignity of the people of Victoria is an essential aspect of the peace, order and good government of the State of Victoria and so a legitimate concern of any elected State government’ (at [258]). Contra Clubb’s argument that the protection of dignity was not a legitimate purpose because all political speech may or does offend dignity, Nettle J reiterated that the implied freedom is a freedom to communicate political ideas to people willing to listen, not a licence to accost or harangue people, especially vulnerable people seeking private, personal medical advice and assistance (at [259]).

Turning to the appropriate and adapted test, Nettle J also rejected the Attorney-General for Victoria’s submission that a law imposing an ‘insubstantial burden’ is automatically appropriate and adapted (see [260]–[263]), and the Attorney-General of the Commonwealth’s submission that the degree of justification should be ‘calibrated’ according to the level of burden, which here should require a ‘slight’ degree of justification (at [264]–[265]): both were conclusory arguments and do not clearly guide the inquiry. Nettle J instead largely adhered to his approach in Brown of three-part proportionality testing, now slightly modified to four-steps: the law must be ‘suitable, necessary and adequate in its balance’: suitability means a rational connection to the purpose of the law (and the law can achieve that purpose); necessary means that it is within a reasonable range of ways to achieve that purpose; and adequate in its balance means its effect on the implied freedom is not grossly disproportionate or goes far beyond what can be justified in pursuit  of the law’s purpose (see in detail at [266]). Nettle J then explained his reasons for shifting the terms of these tests since Brown, emphasising the need for some more flexibility in some of the criteria, and defending the need for the ‘adequacy in balance’ element (at [267]ff).

Applying this test to the present matter, Nettle J stated that the Act’s proscribing certain behaviour near abortion clinics was rationally connected to the purpose of securing the health and wellbeing of people seeking abortions and staff (at [276]). The means of achieving that purpose was necessary in that there were no obvious and compelling alternatives that would have had a significantly lesser burden on the freedom, and Nettle J rejected Clubb’s various arguments that alternatives did exist, for example to require the Crown to prove distress or including a ‘carve out’ for political communication on abortion (at [277]ff). Nettle J then held that the law was adequate in its balance: its burden was not grossly disproportionate or go far beyond what would be reasonable in pursuit of its purpose (at [292]ff).

Moving then to the Preston appeal, Nettle J noted that it involved different considerations but resulted in the same conclusions as Clubb (at [295]). After reviewing the law and facts in the Preston matter, Nettle J held that it imposes a burden on the implied freedom by proscribing political communications within the access zone (at [303]ff). Nettle J reiterated that, as in Clubb, that the law prevents the capacity of people like Preston to try to influence people seeking abortions to not do so is not a political communication, but rather a communication on an apolitical, personal matter that does not burden the implied freedom (at [305]). The law here had the legitimate purpose of advancing women’s health by ensuring access to lawful termination services, privately, with dignity and without the risk of being subjected to haranguing by abortion protestors (at [306]ff). Nettle J rejected Preston’s argument that the law was intended to ‘handicap’ the anti-termination side of the abortion debate (see at [308]–[311]). Turning then to whether it was appropriate and adapted, Nettle J reiterated that the law’s connection to advancing the health and wellbeing of people seeking terminations showed it was ‘suitable’ (at [313]) and rejected Preston’s contention against this — that it singles out anti-abortion protests, and that because it does not specifically prohibit protests that are ‘reasonably likely to cause distress or anxiety’ it was not rationally connected: rather, aiming at protests about terminations is consistent with and reinforces the conclusion that the proscription is aimed at ensuring the health and wellbeing of women seeking abortions (at [315]). Moving to necessity, Nettle J rejected Preston’s various suggestions about alternatives, holding that none was an obvious and compelling alternative (see [316]ff), and nor was the law inadequate in its balance (see [324]).

Gordon J (at [326]–[405])

Gordon J likewise rejected both challenges.

Beginning with Clubb, Gordon J held that it was appropriate to consider severance by reading down the communication prohibition for two reasons. First, Clubb did not contend that she was engaged in political communication, meaning that there is no ‘right, duty or liability’ in issue that applies to her which turns on the validity of that prohibition in its application to political communication. Second, the communication prohibition would be severable if and to the extent that it burdened the implied freedom. In these circumstances, no further analysis is appropriate or required to dismiss Clubb’s challenge (at [330]). Expanding on the application of these reasons to Clubb, Gordon J noted that Clubb’s appeal needed to begin by assuming the provision was constitutionally invalid, and then also show that it cannot be severed: if it cannot, then anyone charged under it, whether or not they were engaged in political communication is irrelevant (at [332]–[335]). If it can be read down, then in Clubb’s case the Court cannot consider it further because it would be a hypothetical or speculative application of the provision (at [336]). Gordon J then asked whether it was indeed severable (at [336]). After laying out the case law and statutory interpretation principles on severance (at [336]ff), Gordon J noted that the question here is whether there was a statutory intention contrary to the assumed position that prohibited behaviour should be divisible and that any parts of it within constitutional power should be in effect (at [341]). Gordon J’s answer was that there was no such intention and, if it were necessary, the definitions of ‘prohibited behaviour’ could be read down to not include political communications: the prohibitions are broad and the Victorian Parliament cannot have intended that they not apply if the provision were invalid in applying to political communications: ‘Such a result would stultify or undermine’ the statutory purpose, and ‘would leave persons accessing premises at which abortions are provided vulnerable to confronting and personal communications, including those targeted at their personal choice to attend a clinic and undergo an abortion’ (at [345]). Finally, Gordon J rejected Clubb’s argument that even if the communication prohibition could be read down the appeal should be allowed because the prosecutor had not proven that Clubb’s communication was not political communication: under the construction here, characterising communications as political or not-political is not an element of the offence, and it would be for the accused to lead evidence on that matter to try to establish that fact (at [348]). Clubb’s appeal should be dismissed (at [349]).

Moving then to Preston, Gordon J first laid out the legislative provisions and the procedural history (at [350]ff) before outlining the implied freedom in terms of the three Lange questions as applied here (at [354]):

(1) Does the Protest Prohibition effectively burden the freedom of political communication? (2) Is the purpose of the Protest Prohibition legitimate, in the sense that it is consistent with the maintenance of the constitutionally prescribed system of government? (3) Is the Protest Prohibition reasonably appropriate and adapted to advance that purpose in a manner consistent with the maintenance of the constitutionally prescribed system of government?

Gordon J held that it did burden the implied freedom, but that burden is not substantial: it is a time, place and manner restriction directed at the legitimate purpose of creating an access zone to allow women and staff access to an abortion clinic, and its means are not incompatible with the maintenance of the constitutionally prescribed system of government (at [355]).

Turning to each of these in detail, Gordon J laid out the legal and practical effect of the law, noting that the protest prohibition does as it says: it prohibits protests in relation to terminations, which may impose a burden on political communication (at [368]). The nature and extent of that burden is insubstantial: it is not specifically directed at political communications or the content of these views, and applies whether a person is for or against abortions (at [371]–[374]). It thus does not discriminate against political communications on the basis of content or source, and applies equally to different kinds of protests about abortion (at [375]–[377]). Moving to purpose, Gordon J read the protest prohibition as a law directed at providing safe passage for people accessing abortion clinics, and rejected Preston’s contention that it aimed to ‘deter speech’: its purpose is not to deter speech but to enable safe access, and to do that it removes one of the barriers that might deter people from accessing lawfully available medical services (at [378]–[381]). The protest prohibition is also appropriate and adapted to this purpose: it effects only an insubstantial and indirect burden on political communication to do that, and there is ‘nothing protectable about seeking to shame strangers about private, lawful decisions they make’ (at [382]–[388]).

Gordon J then turned to structure proportionality, noting that in this appeal, as in Brown, it is ‘neither necessary nor appropriate to say anything further about suitability, necessity or adequacy of balance’ because once the law passes the three steps, the burden is not ‘undue’ and no further analysis is needed (at [389]). Proportionality is ‘a means’ and ‘a tool of analysis’ (at [390], emphasis in original), not a constitutional doctrine or method of construing the constitution, and the suggestion that structure proportionality may provide more consistency or clarity in judgment should ‘be approached with caution’ (at [390]). Not every law burdening the implied freedom can or should be analysed by a rigid ‘one size fits all’ approach (at [391]). Structured proportionality does not reflect common law methods, and instead reflects civil law origins and purposes, and thus may not be suited to or compatible with the Australian context (at [391]ff). After exploring a number of academic views on the theory of proportionality (Schauer, Alexy and Barak, at [392]ff), Gordon J reiterated the problems of a ‘one size fits all’ approach, given that each matter is fact-specific and each analysis necessarily case-specific (at [403]). The Lange questions instead provide ‘a standard‘ and the more ‘rule-like’ elements introduced into that standard and applied rigidly and formalistically, the further the judge is taken from that standard’s purpose (at [404], emphasis in original). Standards are more useful for the common law’s case-by-case basis of crystallising its meaning, and while they may cause uncertainty, proportionality ‘will not always be the answer to that uncertainty’ (at [404]).

Edelman J (at [406]–[509])

Edelman J began by emphasising that a clear and principled approach is needed to distinguish between this case and Brown v Tasmania, partly to ensure that the implied freedom does not become a vehicle for courts to assess the merits of different legislative approaches to political communication, or a mass of single decisions that are not united by ‘a reasoning process requiring precision of thought and expression’ (at [407]). For Edelman J, structured proportionality provides the ‘analytical, staged structure by which judicial reasoning can be made transparent’ (at [408]). In Australia, a ‘restrained approach’ to each stage is necessary because it must reflect the terms and structure of the Constitution and the system of government that the implied freedom supports (at [408]).

Edelman J held that the law at issue in Preston met each stage of the proportionality test, but that in Clubb the issue of justification need not be considered (at [409]ff). Edelman J accepted the conclusion urged by the Attorney-General of the Commonwealth that the communication provision could be ‘severed’ in relation to political communication if it were invalid, and thus there was no need to determine the constitutional validity of the law in its entirety (at [413], [414]). After distinguishing between ‘reading down’, ‘severance’ and ‘partial disapplication’ (see [415]–[433]), Edelman J concluded that the Victorian law could not be read down or severed: severance would involve giving s 185D a meaning as though it contained the words ‘communicating by any means in relation to abortions other than in the course of political communication‘ (at [435], emphasis in original). Excluding political communication here would be an insertion ‘too much at variance’ with the legislature’s language, and would require prosecutors to show a communicaiton was not political (at [436]). But Edelman J held that s 185D could be ‘partially disapplied’: it would apply to non-political communications about termination, but not to political ones, and while might ‘eviscerate the operation’ of the law if most communications were political, it would still operate on the ‘vastly reduced content’ of non-political communication (at [438]–[440]). This possibility of disapplication was sufficient to dispose of the appeal: Clubb would not be affected by the broader constitutionality of s 185D, and thus there is no good reason to adjudicate on that validity (at [441]–[443]).

Moving to the Preston appeal, Edelman J first recounted the facts, legislative scheme, and decisions of the lower courts (at [444]ff), before turning to the requirements of the implied freedom, articulating these in the ‘broad concerns’ of the Lange test as a three stage test: the nature of the burden, whether the law imposing the burden has a legitimate purpose, and whether the effect on political communication is undue or unjustified (at [453]–[454]). Noting that protest is one of the ‘loudest’ forms of political communication, Edelman J accepted that the Tasmanian law did burden the implied freedom (at [455]–[456]). Turning to legitimate purpose, Edelman J noted that the staute did not contain any express statement of purpose, but that its terms, background and social objective indicated that it promoted women’s reproductive health, and specifically allowing access to termination services in safety and without fear, intimidation or distress, and that was a legitimate purpose (at [457]–[459]). Edelman J rejected each of Preston’s characteristations of the purpose as silencing debate or anti-abortion views, noting that these might be its possible effects, but not its purpose (at [460]).

Moving next to justification and proportionality testing, Edelman J noted that in McCloy, Brown, Unions and this appeal, a majority of the Court has avoided phrasing the justificaiton test as focusing on the burden being ‘reasonably appropriate and adapted’ and instead on three-stage proportionality (at [462]). While this is used throughout the world, in Australia it means suitable as rationally connected to purpose, necessary, in that there are no practicable alternatives of similar efficacy and a lesser burden, and adequate in balancing purpose and burden (at [463]). After responding to concerns about proportionality’s foreign origins, its nature as a ‘tool’, that it might be antithetical to the common law process, and how it might develop (see [464]–[471]), Edelman J turned to the three steps. Here, the Tasmanian law was suitable: it prohibited protests, which was rationally connected with its purposes of ensuring safe access to abortion services without being subjected to protestors (at [474]).

It also passed the ‘necessity’ test: there were no reasonably practicable alternatives with a less restrictive effect on the freedom, which Edelman J read as going to ‘depth’ and ‘width’, respectively, a burden that focuses intensely on the conduct prohibited (targeting particular communication types or views), or one that captures more conduct by not including any time, location or subject matter constraints (see [480]). Here, the burden is both deep (targeting protest) and wide (extending to a wide 150m radius), but it is not clear that a smaller radius might have achieved the compelling purposes of the legislation (at [484], [486]). Edelman J also rejected the suggestion that the law could have only targeted communications that are reasonably likely to cause distress or anxiety; it was not clear that any communication near an abortion clinic would not cause anxiety or distress to a person accessing the clinic (at [485]). Edelman J concluded by noting that the conclusion on necessity might not ‘sit comfortably’ with the decision in Brown: here, the area covered by the prohibition is necessary to achieve its purposes, while the powers of the Forest Manager to deny access to areas were a substantial burden that did not further the statute’s purposes (see [487]–[490]).

Finally moving to adequacy in the balance, Edelman J noted the risks of a Court deciding a law was inadequate in its balance as intervening too far into public policy formulation (at [492]), and that in many other jurisdictions this step has been ‘effecviely abandoned’ (see [493]ff). In the Australian context, ‘adequacy’ must be highly constrained, because the implied freedom only arises to protect the constitutional system of reasonable and responsible govenment, which in turn mandates the legislative implementation of policy decisions (at [495]). This leads to a set of constraints: that courts cannot substitute their assessments for that of the legislative decision maker, that inadequacy requires a gross or manifest lack of balance between the burden and the purpose, and that balancing shoudl nto involve rigid categories of review (see [495]–[498]). Here, while the foreseeable burden was deep and wide, the purpose of the prohibition was of great importance of Parliament, and the Act ensures access to termination services without harassment and, at the higher level, with basic issues of public health (at [499]): the burden thus cannot be gross or manifestly disproprtionate to the importance of that purpose (at [501]). Edelman J concluded with a series of comments on constitutional values in foreign jurisdictions, noting that they be treated with caution, and offering a contrast by explaining how the appeal would have been decided in the United States (see [502]–[508]).

The High Court has allowed two appeals in part and dismissed one appeal from a decision of the Full Federal Court on compensation payable for the extinguishment of native title rights and interests.

Between 1980 and 1996, NT was responsible for 53 acts of granting tenures and constructing public works in the town of Timber Creek that were held to have impaired or extinguished native title rights and interests held by the Indigenous townspeople (the Claim Group). Pursuant to s 51 of the Native Title Act 1993 (Cth), the Claim Group’s compensation claim was framed as including: first, compensation for economic loss of native title rights to be determined as if each act were equivalent to the NT compulsorily acquiring a freehold estate in the land; secondly, compound interest on that loss from the date of assessment until judgment; and thirdly, compensation for loss or diminution of connection or traditional attachment to land, and the intangible disadvantages from lost rights to live on and gain spiritual and material sustenance from the land, as assessed at the time of trial (see at [11]). Mansfield J, at trial, assessed the compensation amount at $3.3 mil: $512,000 as 80 percent of the total freehold estate value, $1.4 million in simple interest, and a cultural loss of $1.3 million. The Full Court reduced the economic loss factor from 80 percent to 65 percent, but otherwise affirmed Mansfield J’s conclusions.

Before the High Court, the NT and Commonwealth contended that the FCAFC erred in assessing the economic loss at any more than 50 percent of the freehold value and erred in upholding the $1.3 million cultural loss (see [16], [17]). The Claim Group contended that the FCAFC erred in further reducing the freehold value to 65 per cent, that the economic loss should be the freehold value without any reduction at all, and that the Full Court also erred in upholding the interest on a simple, rather than compound, basis (at [15]).

The High Court unanimously allowed in part the NT and Commonwealth’s appeals, holding that the economic loss compensation should be reduced to 50 per cent of the freehold value of the land. The Court rejected the appellants’ arguments against the cultural loss amount, upholding the trial judge’s original determination of $1.3 million. The Court also dismissed the Claim Group’s arguments against any reduction, and on compound rather than simple interest. Continue reading →

The High Court has allowed in part an appeal against a decision of the Full Federal Court regarding civil penalty proceedings by the Australian Securities & Investments Commission (“ASIC”) against five directors of a failed aged care and retirement trust, concerning whether they breached their duties when they amended the trust’s constitution. It was held that the Full Federal Court erred when it held that certain amendments had “interim validity” unless and until they were set aside, and that the directors had been entitled to act in accordance with their honest belief the amendments were valid. Consequently, the directors had breached various provisions of the Corporations Act 2001 (Cth) to take reasonable care, to be loyal to members of the trust, to not use their position improperly, and to comply with the legal requirements for amendment. However the Full Federal Court was correct to conclude the directors were not “involved in” a contravention of s 208 of the Corporations Act.

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The High Court has allowed appeals by four criminal defendants, upholding a trial judge’s stay of their prosecutions. The defendants were employees or managers of a company whose suspected criminal activity was first reported to the Australian Crime Commission in December 2008. Five months later, the ACC decided not to investigate the company but instead referred its alleged crimes to the Australian Federal Police. In 2010, pursuant to an agreement between the ACC and the AFP, an ACC examiner questioned the four defendants. In each case, the defendants first declined a request to participate in interviews under caution with the AFP and then were required to answer the examiners questions under threat of criminal punishment. The examiner, despite being aware that all four were criminal suspects, allowed between six and nine AFP officers to secretly watch the examinations from an adjoining room and made directions that permitted the examination recordings and transcripts to be made available to the AFP investigators and the staff of the Commonwealth Director of Public Prosecutions. The defendants were later charged with the federal offence of bribing a foreign official and the Victorian offence of false accounting. The trial judge found that the examinations were authorised by the ACC Act, but ordered a permanent stay of the prosecutions. Victoria’s Court of Appeal unanimously reached the opposite conclusions, holding that the examinations were illegal, but overturning the stay. At both the trial and (over the defendants’ objections) the appeal, the ACC was given leave to intervene.

A 5-2 majority of the High Court (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ, Gageler and Gordon JJ dissenting) allowed the defendants’ appeal to the High Court and dismissed the Cth DPP’s appeal to the Court of Appeal. Citing suppression orders made in other courts, the Court temporarily barred the public release of the full, unredacted reasons for judgment until 10am on 14th November 2018. As noted by Gageler J at [116], ‘[b]y orders of the Supreme Court of Victoria, unchallenged in the appeals and made for reasons not revealed in the appellate record, the appellant in each appeal has been assigned a pseudonym. The appellants are referred to as Mr Strickland, Mr Galloway, Mr Hodges and Mr Tucker. The company for which all of them once worked has been assigned the pseudonym XYZ Ltd.’

Legality of the examinations

The Court unanimously upheld the Court of Appeal’s finding that the ACC examiner’s questioning of the four defendants  was unlawful. Continue reading →

The High Court has allowed an appeal against a decision of the Full Federal Court on the definition of persons who ‘has, or has been entrusted with, the possession, custody or control’ of goods on which customs duty is payable. Zappia worked for his father and his father’s company, Zaps Transport (Aust) Pty Ltd, as its warehouse and general manager and, as notified to the Australian Taxation Office, Zappia was one of the people who participated in management and control of the warehouse. Following the theft of tobacco products from the warehouse, the ATO served a notice of demand under s 35A(1) of the Customs Act 1901 (Cth) to Zappia, his father and Zaps. Section 35A(1) provides that

Where a person who has, or has been entrusted with, the possession, custody or control of dutiable goods which are subject to customs control:

(a) fails to keep those goods safely; or

(b) when so requested by a Collector, does not account for those goods to the satisfaction of a Collector in accordance with section 37;

that person shall, on demand in writing made by a Collector, pay to the Commonwealth an amount equal to the amount of the duty of Customs which would have been payable on those goods if they had been entered for home consumption on the day on which the demand was made.

The ATO notices stated that each failed to keep the goods that were stolen safe, and demanded the payment of the customs duty that would have been payable on the tobacco products. The Administrative Appeals Tribunal affirmed each ATO notice, finding that the products were not safely kept, and that Zappia, his father, and Zaps each exercised control over the products (at [18]). Continue reading →

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on pension entitlements for disabled members of the police force. The respondent Miles was injured on duty and medically discharged from the police force in 2003. He was certified under s 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) as being ‘incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer’ on the basis of four orthopaedic injuries, and, in accordance with s 10(1A)(a) of that Act, was entitled to a superannuation allowance equal to 72.75 per cent of his salary (at [12]). Under s 10(1A)(b)(ii), a disabled police officer is, subject to some conditions, entitled to an additional amount that is ‘commensurate, in the opinion of [the appellant, the SAS Trustee Corporation], with the member’s incapacity for work outside the police force’. From 2004 onwards, Miles made a number of applications under s 10(1A)(b) to increase his superannuation allowance, including to recognise a diagnosis of post-traumatic stress disorder in 2009 (see at [13]ff). A majority of the NSWCA held that ‘incapacity for work outside the police force’ meant an incapacity for work, whatever the cause, rather than an incapacity for work caused by being hurt on duty while a police officer (the view taken by Schmidt J in dissent, and Judge Neilson at the NSWDC).

The High Court unanimously allowed the appeal. The joint judges (Kiefel CJ, Bell and Nettle JJ) held that the phrase ‘member’s incapacity for work outside the police force’ means an incapacity from a specific physical or mental infirmity determined to have been caused by the member being hurt while on duty as a police officer. The joint judges began by recounting the statutory provisions and facts ([2]ff), before reiterating that s 10(1A)(b)(ii) allows for a constructional choice between the additional amount being paid for incapacity regardless of the cause of injury (the respondent’s contention) and paid only for the incapacity caused by being hurt on duty as a police officer (the appellant’s contention) (see [17]–[19]).

Noting that the starting point for statutory construction is the text of the provision in light of its context and purpose, the joint judges held that textual and contextual indicators in surrounding provisions operated to limit s 10(1A)(b)(ii) (at [20]). Section 7 suggested, or at least was consistent with, the legislative intention that no allowance be paid on work incapacities not caused by being hurt on duty (at [21]). The use of cognate phrases like ‘incapacity’ in nearby sections (see [22], [23], [26]), the additional amount being commensurate with ‘abnormal risks’ that the member was exposed to (at [24]), the unlikelihood that additional amounts by reference to risk extended to risks unconnected to police work (at [25]), and that no allowance is payable for members who resign or retire due to an injury that has not been determined under s 10B(3) (at [27]) together suggest that incapacity means one caused by being hurt on duty. The joint judges also rejected the  NSWCA majority and respondent’s suggestion that the power to vary an additional amount ‘at any time’ do not run counter to the section applying only to incapacities relating to on duty injuries (at [28]), and the respondent’s argument that recent case law supported their contentions (at [30]ff). Finally, the joint judges held that the appellant’s construction was consistent with the Act’s legislative history and extrinsic materials (see [33]ff), and rejected the respondent’s final contention that inconsistent requirements for SAS to seek medical advice at some points in the process suggested the respondent’s construction was correct: these points did nothing to lessen the force of the joint judges’ earlier considerations in favour of the appellant’s view (at [38ff]).

Gageler J agreed with the orders of the joint judges, endorsing the conclusions of Schmidt J on the NSWCA. For Gageler J, the ‘elaborate structure’ of determining the additional  allowance under s 10(1A)(b) or (c) works coherently if, and only if, the incapacity for each is the same incapacity, and that it is determined to have been caused by the member being hurt on duty (at [53]). The alternative construction of s 10(1A)(b)(ii) taken up by the NSWCA, that it refers to incapacity regardless of the source of incapacity, is textually available, but would distort the complementary operation of sub-ss (b) and (c) (at [56]).

Edelman J also agreed with the orders of the joint judges. Edelman J noted that the respondent’s argument encounters a textual difficulty where s 10(1A) is read with the definitions in the Act: the allowance is ‘for’ both a person and a purpose, where the person must be a police officer and the purpose must be to provide for an incapacity ultimately caused by the member being hurt on duty (at [62]). The ordinary meaning of s 10(1A) requires the allowance to be confined to that purpose (at [63]), and the wider context and purpose aligns with and reinforces that natural meaning (at [65]).

The High Court has allowed an appeal against a conviction for child sexual abuse. The defendant, an acolyte at St Michael’s and St John’s Cathedral in Bathurst, was accused of sexually assaulting “A”, an altar boy under his supervision, on two occasions in 1995-1996 in the public toilets of the church. At the trial, the prosecution was permitted to call evidence from “B” and “C”, two students boarding at St Stanislaus’ College in Bathurst, that the defendant, their boarding master, assaulted them in school bedrooms while purporting to comfort them in 1985. The trial judge directed the jury that “If you find that [the appellant] had a sexual interest in male children in their early teenage years, who were under his supervision, and that he had such an interest in ‘A’, it may indicate that the particular allegations are true.” The jury convicted the defendant of the charges relating to “A” and a majority of the NSW Court of Criminal Appeal dismissed his appeal.

The Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) allowed the defendant’s appeal at the end of the oral hearing. Continue reading →

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on testing the credibility of refugee claim evidence and the obligation for the Nauru Refugee Status Review Tribunal to give reasons for its decision.

On 7 November 2018, the Court (Gageler, Nettle and Edelman JJ) held that Nauru’s October 2017 invocation of the High Court’s jurisdiction under s 5 of the Nauru (High Court Appeals) Act 1976 (Cth) was valid. While the Agreement underpinning that statute was terminated on 12 December 2017, with effect from 13 March 2018, the agreement to terminate provided that it would not affect proceedings instituted before the date of termination (at [8]). Once the proceedings were instituted by filing the notice of appeal, the procedure applicable to them was governed entirely by the High Court Rules, not the termination agreement, and thus the Court still has the power to determine the appeal (at [10]ff).

The respondent is an Iranian national who applied for refugee status on the basis that, following the breakdown of his marriage, he began to receive violent threats from his family in-law and what he claimed were false allegations of domestic abuse against his wife, and that, if returned to Iran, he feared that his father-in-law would use his connections within the state to have him imprisoned or killed (see [5]ff).

After the Nauruan Secretary rejected his claim, the respondent claimed that he fled Iran on the basis of political and religious opinion, and that his in-laws were Islamic fundamentalists and, in the case of the father-in-law, a member of a fundamentalist state security organisation (see [12]ff). The Tribunal responded to each of these ‘shifting set of explanations’, rejecting the respondent’s account (at [16]ff). On appeal, the Supreme Court of Nauru (Crulci J) held that the Tribunal’s findings against the credibility of the respondent’s account were unsound and that it had not given full reasons for its decision: in dealing with credibility, an event was only ‘implausible’ if it was ‘inherently unlikely’ or involved ‘basic inconsistencies’ in the evidence or country information (at [25]), and the Tribunal had not follow that standard.

The Court (Gageler, Nettle and Edelman JJ) held that that Crucli J had erred. Her Honour’s reasoning was based on a judgment that was later overtuned on appeal, misemphasised the observations of the FCAFC majority in another case, and, most importantly, mischaracterised the Tribunal’s implausibility findings as speculative, conjecture or unsupported by basic inconsistencies (at [26]). The Tribunal had soundly reasoned that the respondent had changed his evidence and given an improbable account of events, in each case making rational inferences from doubts about his account (see at [27]ff). Regrading the appellant’s argument that, even if the Tribunal had not given full reasons for its findings of implausibility, the reasons it did give would have satisfied the statutory requirements (at [37ff]), the High Court held that the adequacy of reasons ultimately turns on the facts and circumstances of each case, and that the Tribunal’s extensive reasons clearly met that standard (at [39]).

The Court ordered that the judgment of the Supreme Court of Nauru be set aside and in its place an order that the appeal to that Court be dismissed.

The High Court has dismissed an application to extend the time limit on an application to the Court for judicial review under the Migration Act 1958 (Cth), and also dismissed the plaintiff’s application for an order to show cause. The plaintiff’s migration agent made a series of errors on her application for a partnership visa, including a misstatement made to the Minister’s delegate. That misstatement regarded the plaintiff’s marriage status: she had been married in Iran in 2014, that relationship came to an end in 2015, but she did not have an official divorce decree, and the certificate of her second marriage to an Australian citizen in 2017 described her as ‘Never Validly Married’ (see [3]ff). The delegate refused the application on the basis that the applicant had provided ‘a bogus document or information that is false or misleading’, namely the ‘Never Validly Married’ marriage certificate, the statement in the application that she had been previously married, and the agent’s response that the divorce was still in progress (see [9]ff). Despite the agent emailing the delegate to attempt to explain the misstatement, the delegate stated that no information had been received to consider a waiver of the condition, and that the decision would stand (at [12]ff). The agent also Continue reading →

The High Court has dismissed an appeal from the Supreme Court of Nauru on applicant credibility in the evaluation of a claim for refugee status. The appellant fled Iran, arrived on Christmas Island and was transferred by the Australian Government to the Republic of Nauru in 2014. In the course of his transfer interview, he stated that he had been subject to multiple instances of domestic violence from his alcoholic and drug-addicted father, who forced the appellant to work to support his addictions, and whom he feared would kill him if he was returned to Iran (at [2]). The appellant claimed refugee status on the basis that, if returned to Iran, he would be persecuted by the government due to his association with and financial support for his father, whose alcohol and drug-addictions were contrary to Sharia law, and further that his father had connections with the police and paramilitary groups which he might use to find and harm the appellant (at [5]ff).

The Secretary of the Department of Justice and Border Control determined that the appellant was not a refugee and not owed complementary protection: the Secretary did not accept that the appellant’s father was a Continue reading →

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on the assessment of evidence and procedural fairness in refugee determination processing. The appellant claimed refugee status on the basis of his affiliation with the Bangladesh Nationalist Party (BNP) and his actual or imputed opposition to the Awami League, claiming that, after leaving the BNP for several reasons, including the ‘anarchy’ of violent clashes, he came under pressure from the Awami League to join them (at [2]–[3]). In March 2015, the Nauruan Secretary of the Department of Justice and Border Control rejected his claim for protection, and on review the Refugee Status Review Tribunal affirmed that decision, finding that the appellant had not suffered harm amounting to persecution, and that his fear of future persecution was not well founded, and, even if it were, that threat would be localised to the suburb of Dhaka from which he fled (at [4]).

After the NRSC affirmed that decision, the appellant appealed to the High Court, contending that the NRSC erred in failing to find that the Tribunal failed to assess the relevant evidence of assaults by the Awami League against people who refused to join them, and failed to give the appellant the opportunity to ascertain or comment on whether he was a formal member of the BNP, contrary to the principles of natural justice (at [5]). Continue reading →

The High Court has dismissed an appeal concerning evidence of other misconduct in a historic child sexual abuse prosecution. The accused, aged 58, was convicted of three sexual offences against his younger sister (by two years and ten months): carnal knowledge when the accused was 17 and the complainant was 14; rape when the accused was 28 and the complainant was 25 and a second rape when the accused was 29 and the complainant was 26. At the trial, the prosecution also presented evidence of other sexual incidents, including in a bathtub when the accused was 6 and the complainant was 3; in an implement shed when the accused was 8 and the complainant was 5; in a bedroom when the accused was 9 and the complainant was 6; in a shearing shed when the accused was around 10 and the complainant was around 7; and persistent sexual offending when the accused was aged 18 to 20 and the complainant was aged 15 to 17. The accused was originally convicted of offences in relation to the shearing shed and the persistent sexual offending, but these were quashed by the Full Court of the South Australian Supreme Court on the grounds that the accused was too young to be criminally responsible for the shearing shed incident and the evidence of the persistent sexual offending was too imprecise to support a conviction for that offence. The Full Court nevertheless upheld the accused’s convictions for carnal knowledge and two rapes.

The High Court (Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ) unanimously dismissed the accused’s argument that he should be retried on the remaining convictions because the prosecution offered evidence of the other uncharged (or charged, but incapable of sustaining a guilty verdict) incidents. The joint judgment noted (at [17]) that the Court’s recent ruling in Bauer v The Queen means that evidence of uncharged acts involving the complainant and the accused ‘will commonly have very high probative value as circumstantial evidence of the accused’s propensity to act on his or her sexual attraction to the complainant’; however, despite originally asking to use the evidence in this way, the prosecution in this case did not use the evidence for that purpose at the trial. The probative value of such ‘non-propensity’ evidence – to place otherwise inexplicable evidence in context; or to explain the complainant’s or accused’s conduct – ‘lies in its capacity to assist in evaluating the evidence of the offence’, while its prejudicial effect ‘is concerned is the risk that the jury will make some improper use of the evidence’ ([19]). There is seldom such a risk when the evidence is sourced from the complainant, especially where the jury is carefully directed on use ([20]) and there is no logical reason why the length of time since the alleged events will increase this risk ([21]).

The joint judgment held that the evidence offered to support the count of persistent sexual abuse, although inadequate for that purpose, was important to the evaluation of the two counts of rape. Continue reading →

The High Court has dismissed an appeal against a decision of the Full Federal Court of Australia regarding the principles governing the causal link required for the imposition and calculation of an account of profits where profits were made by a knowing participant in a dishonest and fraudulent breach of fiduciary duty, and has allowed a cross-appeal by a majority, holding that there was no reason to restrict the profits recoverable to five years. Consequently a knowing assistant of a dishonest and fraudulent breach of fiduciary duty was required to disgorge the total capital value of the business it acquired by reason of the breach.

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The High Court has allowed an appeal against a conviction for possessing cannabis with intent to supply. After executing a search warrant at the accused’s home in the Perth suburb of Madeley, police found almost a kilogram of cannabis head material inside the home and three cannabis plants behind the house. The accused’s case was that the cannabis was for personal use and was harvested from two of the three plants. Anticipating that evidence, the prosecution called Detective Sergeant Andrew Coen, who testified that a cannabis plant typically yields 100 to 400 grams of cannabis and that ‘head material’ at the upper range is rare. Following his conviction, the accused appealed, relying on new information that Coen had testified in two earlier trials that cannabis plants typically yield 300 to 600 grams of cannabis head material. After hearing evidence from Coen as to why he had changed his view prior to the accused’s trial, a majority of Western Australia’s Court of Appeal dismissed the appeal.

The High Court (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ) unanimously allowed the appeal. The joint judgment held (at [30])  the factors relied on by the Court of Appeal to dismiss the appeal – that the accused bore the onus of proof on the question of intent, and that the accused had not called his own expert testimony, or objected the Coen’s trial testimony, or that the prosecution’s non-disclosure of Coen’s testimony were understandable – were ‘irrelevant to whether there was a significant possibility of a different verdict if the new evidence had been before the jury’. Nothing turns on whether only Coen’s earlier testimony or also Coen’s testimony at trial is treated as fresh evidence ([31]); either way, Coen’s earlier testimony was ‘distinctly apt’ to improve the accused’s prospects of a favourable verdict. Continue reading →

The High Court has dismissed an appeal against a decision of the Supreme Court of South Australia regarding the principles governing the doctrine of part performance (namely, when an otherwise unenforceable oral contract over land can be recognised by the court because of acts of part performance of the agreement, so as to support an award of specific performance). The question raised was whether the requirements of the doctrine of part performance should be relaxed, although it was not suggested that the test should be quite as liberal as the test proposed by the House of Lords in Steadman v Steadman [1976] AC 536, which merely required that the acts pointed on the balance of probabilities to the formation of a contract. The Australian test has hitherto reflected that expressed in Maddison v Alderson (1883) 8 App Cas 467, which requires the acts of part performance to be unequivocally referable to some such contract as alleged. The High Court confirmed that the Australian position remains the same, and declined to adopt Steadman v Steadman or to relax the test in any way.

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The High Court has allowed a Crown appeal against a decision of Victoria’s Court of Appeal that had quashed the defendant’s convictions on 18 counts of sexual offences. When he was first tried in 2014, the defendant was charged with 37 counts against five complainants related to events between 1967 and 1998 and convicted of 33 of those. However, the Court of Appeal quashed those convictions in 2015, criticising the prosecution for overloading the indictment. The defendant then faced a series of separate (and in five instances aborted) trials relating to the three of the complainants and was acquitted in relation to two of them. The High Court appeal concerns the defendant’s 18 convictions a 2016 trial in relation to the third complainant, his foster daughter, for alleged sexual offending between 1988 and 1998, when she was aged between 4 and 15 and the defendant was between 42 and 53.

In 2017, the Court of Appeal quashed the defendant’s convictions for the second time and ordered a new trial, on three broad grounds. First, that the jury should not have been shown a recording of the complainant’s evidence at a previous trial, because her expressed strong preference not to testify was not sufficient to justify such a step. Second, that the jury should not have been told of evidence of uncharged sexual offences by the defendant against the complainant, because such evidence did not satisfy the requirement of ‘significant probative value’. Third, that the jury should not have been told that the complainant described the accused’s offending to a school friend in 1998, as there was no evidence that the events were ‘fresh in her memory’ when she described them and her description was too generic to have any probative value.

The High Court (Kiefel CJ,  Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ) unanimously allowed the Crown’s appeal, rejecting all three grounds of appeal relied upon by the Court of Appeal. Continue reading →

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the construction of derivative refugee status provisions. In September 2014 the Secretary of the Department of Justice and Border Control denied the appellant’s application for refugee status. In March 2015, the Nauruan Refugee Status Review Tribunal affirmed that decision, and the appellant appealed to the Supreme Court. In April 2016. the appellant married a man who had been recognised as a refugee. The appellant’s lawyers made an application for derivative refugee status on the basis of her dependency on her husband’s status, which was granted in August 2016, and for which she was granted a ‘Refugee Determination Record’ stating that the Secretary had determined the appellant was ‘recognised as a refugee’ (at [7]–[8]). In December 2016, the process for acquiring derivative status was changed, including s 31(5), which was deemed to have commenced in May 2014, and provided that ‘[a]n application made by a person under section 31(1)(a), that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time’.

In June 2017, the Supreme Court held that the Tribunal had made an error of law in failing to adjourn its hearing to allow the appellant to Continue reading →

The High Court has dismissed an appeal against a decision of the Full Federal Court on jurisdictional error and errors of law in the context of partner visa applications. Hossain, a Bangladeshi citizen, was refused a partner visa on the basis that the criteria in the Migration Regulations 1994 (Cth) had not been met. The Administrative Appeals Tribunal affirmed that decision on its merits, ruling that Hossain had not met the requirements of submitting an application within 28 days of ceasing to hold a previous visa, unless the Minister was ‘satisfied that there are compelling reasons for not applying’ this requirement, and that he did not have outstanding debts to the Commonwealth. Hossain then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision (by which time he had met the debt payment criteria) on the basis of jurisdictional error. In those proceedings, the Minister conceded that the Tribunal had erred in addressing whether there were compelling reasons not to apply the timing criterion as at the time of the application for the visa: it should have examined whether those compelling reasons existed at the time of its own decision. The FCCA rejected the Minister’s contention that this was nonetheless not a jurisdictional error because the public debt criterion had still not been met. The FCAFC majority (Flick and Farrell JJ) agreed with the FCCA that the error was jurisdictional, but ultimately agreed with the Minister that this error had not removed the Tribunal’s authority to affirm the delegate’s decision (at [13]). Mortimer J, in dissent, also held that the error was jurisdictional, but concluded that because Hossain had repaid the debt, the public interest criterion would no longer be an issue for the Tribunal, and the relief he sought could be granted (see [14]ff).

The High Court (Kiefel CJ, Gageler and Keane JJ, Nettle J, Edelman J) unanimously dismissed the appeal. The joint judges held that the Tribunal’s error in relation to timing did not rise to the level of jurisdictional error. Edelman J (with whom Nettle J agreed), also held that the error was not jurisdictional because it was neither a fundamental error nor one that could have affected the Tribunal’s decision: the ‘lack of materiality’ meant the error was not jurisdictional.

After reviewing the facts and decisions below, the joint judges turned first to conceptual debates about the term ‘jurisdiction’ (see [17]–[19]), noting that the High Court in Kirk v Industrial Court (NSW) [2010] HCA 1 had picked up Jaffe’s emphasis on jurisdiction goes to the gravity of an organisational procedural error when it ‘express[ed] the constitutionally entrenched minimum content of the Continue reading →

The High Court has allowed one appeal, partly allowed a second appeal, and dismissed two appeals from a decision of the Full Federal Court on the taxation of franked distributions from trusts. In 2006 to 2008, the trustee (Thomas Nominees Pty Ltd) of a trust (the Thomas Investment Trust), received franked distributions within the meaning of div 207. Division 207 of pt 3-6 of the Income Tax Assessment Act 1997 (Cth) lays out the tax implications of trust income that includes franked distributions. In those years, the trustee passed resolutions that sought to distribute the franking credits between the trust’s beneficiaries separately from, and in different proportions to, the income that comprised the franked distributions (see details at [20]ff). The trustee referred to this as the ‘Bifurcation Assumption’, and lodged tax returns on the basis that this was legally effective under div 207. In 2010, the Queensland Supreme Court issued ‘directions’ to the Trustee that those resolutions did give effect to the Bifurcation Assumption, and that this was legally effective under div 207.

Two of the beneficiaries (the taxpayers) filed appeals in the Federal Court under pt IVC of the Taxation Administration Act 1953 (Cth), arguing that the Bifurcation Assumption was not legally effective under div 207 (see at [34]ff). The central issue before the High Court was whether the FCAFC was bound by the directions given by the QSC and its holding that the Bifurcation Assumption was in line with div 207, and, if the FCAFC was not so bound, how div 207 should apply to the trustee’s resolutions.

The High Court (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ, and Gageler J) unanimously held that the FCAFC erred in holding that it was bound to follow the QSC ruling. The FCAFC ‘misunderstood and misapplied’ the central case on directions, Continue reading →

The High Court has allowed an appeal in part from the Full Court of the Supreme Court of South Australia on the part of the appellant, Amaca Pty Ltd, and dismissed the cross-appeal of the respondent, Mr Latz. The case concerned an entitlement to damages reflecting the loss of an entitlement to a superannuation pension and an age pension as a result of a reduced life span.

Orders were pronounced on 11 May 2018, although reasons were published a month later on 13 June 2018, because of the parlous state of Mr Latz’s health. Mr Latz had contracted malignant mesothelioma at some time in 1976 or 1977 as a result of inhaling asbestos fibre while cutting and installing fencing which had been negligently manufactured by Amaca Pty Ltd. The mesothelioma did not become symptomatic until 2016. In October 2016, Mr Latz’s condition was diagnosed as terminal. He had retired from his job in the public service nine years earlier, and was receiving a superannuation pension under the Superannuation Act 1988 (SA) Part 5, and an age pension under the Social Security Act 1991 (Cth) Part 2.2. It was found that the mesothelioma had cut his life expectancy by 16 years. Mr Latz sought compensation for the reduction to his superannuation pension and age pension, which he would have continued to receive for a further 16 years but for the negligence of Amaca Pty Ltd.

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Mitch Clarke, ‘Courting Communication Anachronisms: Trkulja v Google [2017] HCATrans’ (30 November 2017).

The High Court has allowed an appeal against a decision of the Victorian Court on Appeal on whether a search engine can be held liable for defamation from the results of a search. The appellant sued the respondent search engine company after results of searches such as ‘Melbourne criminal underworld photos’ showed images of him with various convicted Melbourne criminals, as well as articles and links which imputing he was associated with those criminals. Moreover, typing his name into the search bar led to autocomplete results that associated him with various criminal figures. The defendant sought to summarily dismiss the pleadings on the basis that (i) that it did not publish the images matter or the web matter; (ii) that the matters in issue were not defamatory of Mr Trkulja; and (iii) that Google was entitled to immunity from suit. The trial judge held that the appellant’s defamation proceeding should not be set aside. However, on appeal to the VSCA, it was held that the primary judge should have struck the case out on the second basis that the search results could not be defamatory because the results were produced by algorithm, and because a reasonable internet user would understand that the plaintiffs’ images appeared alongside other, clearly non-criminal, people.

The High Court set aside the VSCA’s findings. In a unanimous judgment, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ dealt with two issues: the question of whether Google was a publisher (and the relevance of defences in that determination), and the question of the test for whether the search results were capable of conveying the defamatory imputations.

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The High Court has answered the questions in a special case on parole orders for prisoners who murdered a police officer, and its applicability to the plaintiff. The plaintiff was convicted of the murder of a police officer in a bombing in Russell St, Melbourne, and sentenced to a non-parole period of 28 years. After that non-parole period expired in September 2016, the plaintiff applied for parole, and that application proceeded through the parole review through October 2016. On 14 December 2016, s 74AAA was inserted into the Corrections Act 1986 (Vic), and provided new conditions for making parole orders for prisoners who murdered a police officer. It provides:

(1) The Board must not make a parole order under section 74 or 78 in respect of a prisoner convicted and sentenced (whether before, on or after this section comes into operation) to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless an application for the parole order is made to the Board by or on behalf of the prisoner.

Sub-section 3 provides that the Board ‘must have regard to the record of the court in relation to the offending, including the judgment and the reasons for sentence.’ Sub-section 6 defines ‘police officer’ to include an officer who was performing the duties or exercising the powers of a police officer at the time of the murder, or a murder that ‘arose from’ or ‘was connected’ with the officer’s role as a police officer, regardless of whether the officer was performing the duties or exercising the powers of a police officer at the time of the murder.

The plaintiff had commenced proceedings before the High Court in January 2017, seeking declarations that s 74AAA did not apply to him or his parole application (see [12]). In December 2017, s 127A was inserted into the Corrections Act, which purports to make s 74AAA applicable to Continue reading →

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the ‘internal relocation principle’ in refugee status determinations. The appellant, a Sunni Muslim from the ‘K District’ in the province of Punjab, moved to Karachi in 2004, departed Pakistan in 2013, and applied for asylum in Nauru in 2014. The appellant claimed he held a well-founded fear of persecution by the Muttahida Quami Movement (MQM) for the imputed political opinion of opposing MQM, and feared harm from them throughout Pakistan. The Secretary of the Department of Justice and Border Control refused the application. On appeal, the Nauruan Refugee Status Review Tribunal found that the appellant had a well-founded fear of persecution in Karachi, it affirmed the Secretary’s decision because the appellant could return to K District where he would not face a reasonable possibility of persecution. The NRSC upheld the Tribunal’s determination.

The High Court unanimously allowed the appeal. The joint judges (Gordon and Edelman JJ) held that the Tribunal fell into error in applying the principles on internal relocation, and hence the NRSC should have allowed the appeal. After laying out the provisions of the Refugees Act (at [18]ff), the joint judges turned to the internal relocation principle, reiterating that where a person claiming refugee status on the basis of a well-founded fear of persecution, and there is an area within their home country in which they would not have that fear, and the person could reasonably be expected to relocate there, then that person is not outside their home country due to a well-founded fear of persecution (see [24]). Continue reading →

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status and complementary protection. The appellant is a Nepali whose family were all members of the pro-royalist political group known as the RPP(N), which he joined in 2008 and in which he was active as an official. The appellant’s family had suspected that their brother had been disappeared by the Nepali Maoists (the NCP-M), and the appellant claimed that, from 2011 onwards, the NCP-M began to persecute him and both threatened and physically attacked him and his family in several separate incidents (at [6]ff). The Nauruan Refugee Status Review Tribunal found that the appellant had suffered serious harm amounting to persecution, but ruled that because the harm was ‘localised’, the appellant could reasonably be expected to relocate elsewhere in Nepal and live a normal life without hardship, and was thus neither a refugee nor entitled to complementary protection (at [12]). The NRSC upheld that ruling, holding that the Tribunal had not erred in applying a reasonable internal reloaction test, and had not failed to take into account all matters relevant to the appellant’ complementary protection claim, including the reasonably practicality of relocating within Nepal, and that the Tribunal had not failed to afford him procedural fairness (at [13]).

The Court (Kiefel CJ, Gageler and Nettle JJ) dismissed the appeal. Their Honours began by noting that the relevant statutory and treaty provisions are set out in CRI026 (at [16]). The Continue reading →

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status and complementary protection. The appellant was a Sunni Pashtun from who sought refugee status or complementary protection on the basis of a well-founded fear of persecution by the Taliban in Peshawar for his actual or imputed political beliefs, based on series of attacks against him and his family members by the Taliban, the most recent of which related to extortion and coercion attempts, which the appellant refused to submit to (see [4]ff). The Nauruan Refugee Status Review Tribunal found that the appellant faced a real threat of harm, but that he could also relocate to another area in Pakistan to avoid that harm, and consequently he was neither a refugee nor owed complementary protection by Nauru (at [7]). The NRSC upheld the Tribunal’s decision, holding that it had not erred in applying a reasonable internal relocation test, and did not fail to take into account the interests of the appellant’s children in finding that relocation was reasonable (at [8]).

The High Court (Kiefel CJ, Gageler and Nettle JJ) dismissed the appeal. Their Honours noted that the relevant statutory and treaty provisions were outlined in CRI026 (at [11]), and rejected DWN027’s arguments on ground one, on the relevance of the ability to relocate to the entitlement to complementary protection, as being ‘substantially the same’ as those given in CRI026, and rejected for the reasons given in that matter (at [12]).

Turning to Ground 2, that the Tribunal failed to take into account Nauru’s international obligation to give primary consideration to the best interests of the Continue reading →

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status, complementary protection obligations, and internal relocation. The appellant is a Pakistani national who had spent much of his life in Karachi, but also lived in a range of other districts in Pakistan. He arrived in Nauru and claimed refugee status on the basis of fears that he would be harmed by members of the Muttahida Quami Movement (MQM), whose leader he had injured at a cricket game in Karachi. He claimed that MQM viewed him as a political dissident, and could harm him anywhere in Pakistan, and that the government could not protect him due to its connections with and support for MQM. The Nauruan Refugee Status Review Tribunal accepted that there was a real possibility that he may be harmed if returned to Karachi, but only for reasons of personal revenge and not for his political beliefs, and that the appellant could avoid that harm by relocating to one of the areas in which he had family connections and where MQM had little support (see [6]ff, [16]). The Nauruan Supreme Court dismissed an appeal against that decision, holding that the Tribunal had not erred in applying a reasonable internal relocation test to the appellant’s claim (at [9]).

The High Court (Kiefel CJ, Gageler and Nettle JJ) unanimously dismissed the appeal. Their Honours briefly noted the Nauruan statutory provisions: that s 4 of the Refugees Act provides that Nauru must not return a refugee to the frontiers of territories where that person would be persecuted, or return any person to a frontier in breach of its international obligation; that Nauruan law incorporates the definition of refugee from the Refugees Convention; and that ‘complementary protection’ applies to people who are Continue reading →

The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the Senate on s 44(i) eligibility. Section 44(i) of the Australian Constitution provides that any person who is ‘is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives’. Senator Katy Gallagher (who first became a senator by filling a vacancy in 2015), lodged her nomination for the 2016 election on 31 May and was duly elected on 2 July 2016. At the date of nomination, she was a British citizen and thus was a citizen of a foreign power within the meaning of s 44(i). In August 2016, the UK Home Office acknowledged her renunciation of that citizenship. In December 2017, the Senate referred questions over Senator Gallagher’s eligibility to the Court of Disputed Returns.

The Court (Kiefel CJ, Bell, Keane, Nettle, and Gordon JJ, Gageler J, Edelman J) held that Gallagher was not eligible to be chosen by reason of s 44(i), and consequently there was a vacancy in the representation of the ACT which should be filled by a special count of the ballots.

The joint judges (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) first reiterated the principles laid down by the Court in Sykes v Cleary [1992] HCA 60 and Re Canavan [2017] HCA 45 (see [7]ff). Section 44(i) disqualifies foreign citizens from being chosen as a Senator or MP, and has this effect regardless of that person’s knowledge of that status or intention to act on the duty of allegiance to a foreign power. Foreign citizenship, and the ability to renounce that citizenship, is determined by reference to the laws of relevant country. In Re Canavan, the Court recognised an implicit qualification to s 44(i) arising from the ‘constitutional imperative’ underlying that section: that no Australian citizen could be ‘irremediably’ prevented by foreign law from participating in Australia’s representative government, and that, at least, this could be so where that person has taken all reasonable steps under the foreign law to renounce that citizenship (see [11]). Gallagher’s submission here was that British law should be read as operating in exactly this way (at [12]).

Turning to the details of British renunciation law, the joint judges noted that the British Nationality Act 1981 (UK) allows a person to renounce British citizenship, and on registration of that declaration by the Secretary of State, that person ceases to be a British citizen (at [14]). The renunciation must be made in a particular form, Form RN, documents proving British citizenship must be provided, and a fee must be paid (at [15]). Gallagher completed the form on 20 April 2016, provided her birth certificate and Australian passport, and credit card details, which was debited on 6 May 2016 (at [16ff]). But in July 2016 the Home Office requested documents showing that she was indeed a British citizen (here, her parents’ birth and marriage certificate), which she did: sometime before 30 August 2016, the Home Office advised Gallagher that the declaration had been registered (at [18]).

Before the Court of Disputed Returns, Gallagher contended that by 20 April 2016, or at the latest by 6 May 2016 (the date of debiting), she had taken all steps required under British law that were ‘within her power’ to renounce her citizenship: it was then for the Secretary of State to choose the time and manner to perform the duty under that law, and that discretion was an ‘irremediable impediment’ to Gallagher’s participation in the 2106 election (see [19]). The Commonwealth Attorney-General contended that it is not enough for a person to merely take steps to renounce, unless the foreign law provides an irremediable impediment to renunciation: British law does not do so as it does not make it impossible or not reasonably possible to renounce (at [21]).

The joint judges accepted the Commonwealth’s argument as clearly reflecting the law stated in Sykes v Cleary and Re Canavan (at [22]). The constitutional imperative is narrowly focused on foreign laws that prevent a person from ever ‘freeing’ himself or herself of the citizenship of that foreign country, thus preventing them from lifting the disqualification in s 44(i) (at [23]ff). Foreign laws that require particular steps be taken will not ‘irremediably prevent’ renunciation: it must rather be an insurmountable obstacle, or a process that was unreasonable for, for example, putting the renouncer at personal risk (at [27]ff). The joint judges also explicitly rejected Gallagher’s submission that it is not sufficient that a person only take all steps reasonably required for the exception to s 44(i) to apply: the foreign law must also itself ‘irremediably prevent’ renunciation (at [30]ff). The joint judges added that the requirement of taking all those steps, even where the law prevents renunciation, is required by s 44(i)’s concerns about the duty or allegiance to a foreign power: taking those steps is a manifestation that the person has done all they can (at [32]). Gallagher could not identify any aspect of British law that would constitute an irremediable impediment, and that a decision might not be made in time for a particular person’s nomination for an election does not constitute an irremediable impediment (see [37]ff).

Gageler J agreed with the responses given by the joint judges, and with their reasons, adding further reasons explaining his Honour’s view of the constitutional imperative. Gageler J emphasised that the implied exception avoids rigidly operating in a way that undermines the system of responsible and representative government that it aims to protect; namely, that arbitrary or intransigent foreign laws cannot frustrate the ability of Australian citizens to participate in Australian government (at [43]). Specifically, it aims at allowing Australian citizens who irremediable retains foreign citizenship; who have attempted to renounce but are prevented from doing so (at [44]). It is not engaged merely because a person has taken all reasonable steps and is awaiting the completion of that process: ‘Retention of foreign citizenship can hardly be said to be irremediable while it remains in the process of being remedied’ (at [45]). Instead, the implied exception can only be engaged if and when the process of renunciation turns out, for practical purposes, to be one that will not permit renunciation, ‘requiring if not that an impasse has actually occurred then at least that an impasse can be confidently predicted’ (at [45]). Gallagher remained a citizen of a foreign power (at [46]), and the precise timing of the 2016 election has no bearing on the disqualification requirements in s 44 (see at [47]ff).

Edelman J also agreed with the responses given by the joint judges, agreeing with ‘generally those [reasons given] in the joint judgment’ (at [69]), and offered his own reasons on the constitutional imperative and non-recognition of foreign laws. Edelman J first noted that foreign laws will generally not be recognised where they are inconsistent with local policy or the maintenance of local political institutions (at [52]). This rule has been applied to foreign laws on citizenship, notably by Brennan J in Sykes v Cleary, who used recognition as an ‘anterior question’ to be considered prior to the application of s 44(i): ‘that whether a person was a subject or citizen of a foreign power was a question for the law of that foreign power, subject to exceptions recognised by international law as well as exceptions sourced in public policy derived from both common law and the Constitution‘ (at [53]), such as a ‘mischievous’ foreign statute conferring citizenship on all Australians to disqualify them from their own Parliament (at [54]). Edelman J noted that it was unnecessary in this matter to consider if any further exceptions should exist: while Gallagher’s arguments suggested that parts of the British law should not be ‘recognised’ she did not focus on the anterior question and instead ‘correctly assumed that none of the existing, limited exceptions applied to prevent recognition of the foreign law’: at [55]).

Turning, then, to the implied constitutional qualification, Edelman J saw s 44(i) against the backdrop of other limitations on participation in government in the Constitution, and as focusing on preventing foreign laws from ‘stultify[ing] a persons’ qualified ability to participate’ (at [58]). The ‘irremediable’ aspect includes situations where the foreign law would make participation permanently impossible (at [59]), though it also extends to laws that have the practical effect of imposing unreasonable obstacles to renunciation (at [60]). Edelman J rejected Galalgher’s submission that the British law here involved unreasonable obstacles, specifically, the action of a foreign official: while some circumstances might involve foreign officials making unreasonable requests, or unreasonably refusing to exercise discretion, that is not clear in this situation (see at [64]ff, and [68]):

Ultimately, perhaps the most fundamental difficulty for Senator Gallagher’s submission that actions of foreign officials should be automatically excluded by the implication is that the submission shears the constitutional implication from its rationale of ensuring that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. The submission treats as an ‘unreasonable obstacle’ falling within the implication any foreign law that does not irremediably prevent participation, but which might have an arbitrary or discriminatory effect. This would require a different implication, one which is lacking in any textual or structural constitutional foundation.

Gallagher’s vacancy will be filled by a special count of the ballots. The directions needed to give effect to that count will be made by a single Justice (Answer to Question (b)).

ORDER

The questions referred to the Court of Disputed Returns by the Senate be answered as follows:

Question (a)

Whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which Katy Gallagher was returned?

Answer

Yes.

Question (b)

If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any direction necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Unnecessary to answer.

The High Court has dismissed five appeals stemming from to a decision of the NSW Court of Appeal on anti-discrimination complaints made across State borders. Burns, a resident of NSW and an anti-discrimination campaigner, made complaints to the Anti-Discrimination Board of the NSW Civil and Administrative Tribunal about statements made by Corbett and Gaynor, who were, respectively, residents of Victoria and Queensland. At issue there was whether ss 28(2)(a) and (c), 29(1) and 32 of the Civil and Administrative Tribunal Act (NSW) (the NCAT Act), which lay out the general and appellate jurisdiction of NCAT, gave NCAT jurisdiction to hear cases between residents of different states (known as ‘diversity matters’). Hearing the various appeals stemming from these matters together, the NSWCA held that the NCAT had no diversity jurisdiction, and that only State courts, and not Tribunals, could hear such complaints under the High Court’s diversity jurisdiction.

The High Court unanimously dismissed the appeals. Four judges (Kiefel CJ, Bell and Keane JJ and Gageler J) held that the Constitution contains an implied limitation that prevents State parliaments from conferring diversity jurisdiction on State tribunals.

The Joint Judges (Kiefel CJ, Bell and Keane JJ)

Kiefel CJ, Bell and Keane JJ began by laying out the appeal as raising two issues: whether the Commonwealth Constitution precludes State parliaments from conferring jurisdiction in diversity matters on a tribunal that is not one of the ‘courts of the States’ referred to in s 77 (the ‘implication’ issue); and, if it does not, whether a State law purporting to do so is inoperative by virtue of s 109 of the Constitution, as inconsistent with a federal law covering the same issue, here, s 39 of the Judiciary Act 1903 (Cth) (the ‘inconsistency’ issue). The joint judges held held that the implication issue should be resolved affirmatively, and thus it was unnecessary to resolve the inconsistency issue (at [5], and see [4] on the distinctness of the issues). For the joint judges, the text, Continue reading →

The High Court has dismissed an appeal from a decision of the Supreme Court of Nauru on the denial of procedural fairness and the consideration of country information in a refugee status determination. The appellant, an Iranian of Faili Kurdish ethnicity, arrived on Christmas Island in 2013 and was transferred to Nauru, where he applied for refugee status under Nauru’s Refugees Convention Act 2012 (Nr). The Secretary of the Department of Justice and Border Control refused that application: that decision was affirmed by the Refugee Status Review Tribunal. Before the High Court, the appellant contended that the Tribunal erred in failing to deal with the country information he provided, specifically, that if returned to Iran as a failed asylum seeker, he risked being imputed with political opinions for which he would be persecuted. The appellant also sough to amend his notice of appeal to include a second ground of denial of procedural unfairness in not putting to him the nature of the country information it did rely upon in considering whether he might suffer persecution on the grounds of ethnicity (at [7]: neither ground was raised before the NRSC).

The High Court rejected both grounds as being without merit and dismissed the appeal. Regarding the first ground, the Court noted that the Tribunal had received and considered the appellant’s information (at [10]), that it did not seem to have ignored it, but that, in any case, much of that information did not require the Tribunal’s comment: Continue reading →