Yesterday, the highly publicised ‘Skype scandal’ within the Australian Defence Force Academy yielded a guilty verdict against two cadets accused of broadcasting otherwise consensual sex on Skype without the knowledge of one of the participants. However, a rare split High Court decision on a constitutional point from earlier this year — Monis v Queen; Droudis v Queen  HCA 4 — discussed by Professor Adrienne Stone on this blog in April, looms over part of the verdict. Continue reading
Monthly Archives: August 2013
News: The final campaign week and the High Court hears three asylum seeker cases
Next week is the final week of the 2013 federal election campaign. It has been a campaign where immigration issues have been prominent despite the Rudd government attempting to neutralise the politics of irregular migration by entering into the highly publicised arrangement with Papua New Guinea for that country to detain asylum seekers and settle refugees who arrive in Australia by sea. While other matters of policy and electioneering might occupy news bulletins next week, irregular migration and refugee laws will be front and centre before the High Court. Continue reading
The High Court to Soon Decide on Treatment of Aboriginality in Sentencing Decisions: Bugmy v The Queen
By Cait Storr
The case of Bugmy v The Queen provides a rare opportunity for the High Court to offer guidance on how an offender’s Aboriginality should be incorporated into the set of considerations a judge must balance when passing sentence. Principled justifications for considering Aboriginality as a potential mitigating factor are not new to Australian case law, however the High Court — as is often the case with substantive issues of criminal law — has not had the opportunity to clarify the principles that should pertain to any such consideration. The 1992 decision in Fernando v The Queen (1992) 76 A Crim R 58 by the New South Wales Court of Criminal Appeal (NSWCCA) has provided the clearest guidance to judges seeking to uphold the common law notion of ‘individualised justice’ for criminal offenders. The Fernando principles are in effect an elucidation of an existing common law requirement to consider the subjective circumstances of the offender. They do not, however, shed much light on how this mindfulness for an offender’s Aboriginality should interact with other basic goals of sentencing, such as consideration of the objective seriousness of the offence, and the need for deterrence. This is the key issue in Bugmy v The Queen.
The case was heard by the High Court on 6 August 2013 (see here), and the matter was adjourned with the Court reserving its keenly awaited decision. Continue reading
Precedent on High: The High Court of Australia and ‘Seriously Considered Dicta’
By James Lee
This post considers a specific feature of the High Court of Australia’s approach to precedent. Since the 2007 decision in Farah Constructions v Say-Dee  HCA 22, the Justices have moved to restrict the scope of the lower courts to develop the law, by asserting that lower courts are bound by ‘seriously considered dicta’ ( and ) of the High Court, admonishing courts below for raising new arguments in the course of judgments. Keith Mason has claimed that, in so doing, the High Court has effected a ‘profound shift in the rules of judicial engagement’ (Keith Mason, ‘President Mason’s Farewell Speech’ (2008) 82 Australian Law Journal 768, 769, see the original remarks here at 18–22). An excellent feature-length examination of the issues has been provided by Associate Professor Matthew Harding and Professor Ian Malkin (‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 239). In this short post, I argue that the approach has uncertain implications for the Australian doctrine of precedent and the scope for intermediate courts of appeal to develop the law.
What is the High Court’s approach? Farah v Say-Dee and subsequent cases
Farah v Say-Dee concerned a claim for a variety of equitable reliefs in respect of various properties which were the subject of a joint venture development scheme between the claimant and defendant. The planning application for the property was unsuccessful, because the site was considered too small to ‘maximise its development potential’. During the application process, the defendant learned that permission was more likely to be granted if adjacent properties were included in the planned development. The defendant bought these properties through a company which he controlled. The claimants contended that these properties had been acquired through a breach of fiduciary duty and that consequently the recipients had knowingly received the properties, which were held on constructive trust for the claimants. The Court of Appeal of the Supreme Court of New South Wales allowed the claimant’s claim, reversing the judge’s finding that there had been no breach of fiduciary duty, and instead held that the defendants were liable in knowing receipt. The Court of Appeal also found that a strict liability claim in unjust enrichment was available. Continue reading
News: Former High Court judge at centre of Victorian parole debate
A former High Court judge, Ian Callinan QC, is currently playing a central role in an issue of intense political controversy in Victoria: the state parole board’s failure to revoke the parole of Adrian Bayley in the period leading up to his murder of Jill Meagher. His review of the board’s operation is widely quoted in today’s press prior to its formal release. Continue reading
News: High Court agrees to hear six new cases
In hearings in Melbourne and Sydney today, the High Court agreed to hear six new cases. The six cases are appeals from the following judgments: Continue reading
Thieving Lawyers: Trust and Fidelity in the High Court: Legal Services Board v Gillespie-Jones
By Associate Professor Elise Bant
The elusive nature of the Quistclose trust has spawned much comment, analysis and speculation, by judges and scholars in equal measure, since its genesis in Barclays Bank Ltd v Quistclose Investments Ltd  UKHL 4;  AC 567. A Quistclose trust is a trust which may arise when a loan is made for a specific purpose (and is often asserted by a lender when the purpose of the loan fails) but its precise nature is highly debatable. In that context, those of us who had hoped for a definitive clarification, or even some in-depth discussion, of the doctrine in the much-awaited High Court decision of Legal Services Board v Gillespie-Jones  HCA 35 may be forgiven for feeling slightly disappointed. However, the Court’s circumvention of that debate (explicable in the light of its reasoning, discussed below) is offset by some very interesting observations about the interaction of judge-made law and statute, and in particular about the need for ‘coherence’ across the two sources of law, that merit attention in their own right.
How did the case arise? Lawyers stealing from other lawyers
A client facing criminal proceedings paid monies to his solicitor on to cover legal costs associated with his defence. A barrister was retained and performed a variety of services for the solicitor on the client’s behalf, but was not yet paid for those services. Pursuant to s 3.3.2 of the Legal Profession Act 2004 (Vic) (LPA) the monies constituted ‘trust money’ and were to be held for the benefit of the client. Under s 3.3.14, those monies could only be dealt with by the solicitor pursuant to and in accordance with the client’s direction. However, the solicitor stole most of the trust money, leaving the respondent barrister seriously out of pocket. The barrister made a claim for compensation for ‘pecuniary loss’ caused by the solicitor’s default under the Legal Practitioners Fidelity Fund, a fund maintained by the Legal Services Board (the appellant) under the LPA. A key question was whether the barrister had to show a proprietary interest to successful establish his claim, and if he did, whether he could make out a proprietary interest in the funds held by the solicitor. The appellant at first instance rejected his claim. The respondent successfully appealed to the County Court of Victoria, and won again on appeal to the Court of Appeal of the Supreme Court of Victoria. This run of success ended, however, before the High Court, which unanimously allowed the appellant Board’s appeal. Continue reading
News: Fathers’ Day in the High Court
Today, the High Court will hear an application from Robert Farquharson, who was convicted in 2010 of murdering his three children by deliberately driving into a dam near Winchelsea, Victoria on Fathers’ Day 2005. The events at that dam continue to be of great interest to many Australians, but that is not a typical reason for a criminal defendant to get a full hearing before the national court. Continue reading
Voices on the Right to Silence: X7 v Australian Crime Commission
By Anna Dziedzic
X7 v Australian Crime Commission Case Page
The right to silence has both champions and critics. For some, this rule of criminal procedure is a fundamental bulwark of liberty; for others, including philosopher Jeremy Bentham, it is ‘one of the most pernicious and most irrational notions that ever found its way into the human mind’. In some ways, where you stand between these disparate views might depend on where you sit.
For those, like X7, who sit in the dock facing charges that carry a possible life sentence, having the choice whether to speak or not can provide an important way to protect their personal and legal rights. On the other hand, the work of organisations like the Australian Crime Commission (ACC) which sit at the pinnacle of the nation’s efforts to investigate serious and complex criminal activity, might be significantly impeded without the ability to lawfully require people they suspect of crimes to answer their questions. In the recent case of X7 v Australian Crime Commission  HCA 29, the High Court was asked to mediate between these perspectives, providing the Court with the opportunity to consider the meaning and importance of the right to silence in Australia’s criminal justice system. Continue reading
Legal Services Board v Gillespie-Jones
CFMEU v Mammoet Australia Pty Ltd
News: Your Right to be on the Electoral Roll and Rowe’s Case
By Professor Miranda Stewart
The electoral roll closes by 8pm today, Monday 12 August 2013, seven days after the election writs were issued. If you have not registered by this time, you will not be eligible to vote in the forthcoming election on 7 September.
It seems appropriate to commemorate today the victory in Rowe’s Case  HCA 46 in which the High Court struck down as unconstitutional, a law by which the electoral roll was closed on the day of issue of the electoral writ (usually, the day that the election is announced). The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), passed under the Howard government, had amended the Electoral Act 1918 (Cth), resulting in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details. Previously, the electoral roll remained open for a period of seven days after the issue of the writ.
The victory reinstated the previous deadline for closure of the roll, and the High Court heard the case urgently and issued its decision within a record time, to enable an estimated 100,000 voters who were not on the roll, including many young people voting for the first time, to register to vote in the 2010 election. The plaintiff, Shannen Rowe, had turned 18 just a month before the 2010 election was called by then-Prime Minister Julia Gillard. Of course, she had not been old enough to vote in any previous election. Continue reading
News: A rare High Court appeal from a non-Australian court
Yesterday, three judges of the High Court played an unusual role: hearing an appeal from a non-Australian court. The court in question is the Supreme Court of Nauru and the appeal was from the verdict of its Chief Justice (former Victorian judge The Hon Geoffrey Eames AM QC) that a husband and wife were guilty of raping the wife’s niece. Continue reading
Casino Not Liable for Bets Made by Problem Gambler: Kakavas v Crown Melbourne Ltd
By Jeannie Marie Paterson and James Ryan
Kakavas v Crown Melbourne Ltd Case Page
Issues of gambling, the responsibilities of gaming venues and the regulation of problem gambling have been prominent in recent political debate. Kakavas v Crown  HCA 25 concerned the claim by a so-called ‘high roller’ gambler, Harry Kakavas, to $20 million dollars while gambling at Crown Casino in Melbourne between 2004–06. Kakavas claimed this amount on the basis that Crown had engaged in ‘unconscionable conduct’. Unconscionable dealing is a concept based in equity and given statutory force under s 20 of the Australian Consumer Law (Cth) (previously s 51AA of the Trade Practices Act 1974 (Cth)). As explained by Justice Mason in Commercial Bank of Australia Ltd v Amadio  HCA 14, the equitable doctrine of unconscionable dealing will set aside a transaction:
whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created.
Kakavas was seeking to ‘set aside’ his decision to gamble $20 million with the result that the money he had gambled would be returned to him.
Kakavas’ claim failed for two reasons. First, the High Court doubted that Kakavas suffered from a ‘special disability’ in the sense required to make out unconscionable conduct. Secondly, even Kakavas did suffer from a special disability, the High Court found that Crown did not actually know of it at the time when the allegedly unconscionable conduct took place. Critically, the High Court said that a trader in the position of Crown had to have actual knowledge of the disadvantage of a problem gambler such as Kakavas. Continue reading
News: Waiting for the mining tax case and forgetting about any carbon price case
Tomorrow we will learn of the High Court’s decision on the challenge by Fortescue Metals and others to the Commonwealth’s mining tax legislation – the Minerals Resource Rent Tax Act 2012 (Cth). The court heard that case in March this year. Professor Michael Crommelin from Melbourne Law School will be writing about the Fortescue case for Opinions on High. Continue reading
News: High Court to hand down judgments in Fortescue and Akiba
Today the High Court announced that it would be delivering its judgments in Fortescue Metals Group Ltd v Commonwealth and Akiba v Commonwealth next Wednesday morning (7 August). These two long-awaited cases were heard by the Full Court in March and February respectively. Continue reading
Akiba v Commonwealth
Fortescue Metals Group Ltd v Commonwealth
News: Same sex marriage and the Constitution
Same sex marriage has appeared again in the news recently. However, this time with a decidedly constitutional bent. The NSW Standing Committee on Social Issues tabled its report on a possible same-sex marriage law in New South Wales on 26 July 2013. Continue reading
News: Papua New Guinea plan and Q & A
Michelle Foster from Melbourne Law School recently appeared on ABC’s Q & A where the legality of Labor’s Papua New Guinea Asylum Seeker resettlement plan was discussed. Continue reading
Turning Points in the High Court: Remembering the Koowarta and Tasmanian Dam Cases
By Dr Ann Genovese
2012 and 2013 mark the respective 30th anniversaries of the High Court’s decisions in Koowarta v Bjelke-Petersen  HCA 27 and in Commonwealth v Tasmania  HCA 21 (the Tasmanian Dam case).
Each of these cases is commonly understood to represent a turning point in Australia’s legal and political history: a shift to a different form of political engagement on complex questions about race, and the environment; and a shift in what those engagements could signify, nationally, and internationally. Cumulatively, the cases are also understood as marking a decisive jurisprudential turn, a consideration of a different engagement by the High Court of Australia with both international law and the politics of federal constitutionalism.
After 30 years, it is timely to reflect on the ongoing significance, in political and legal terms, of these two ground-breaking cases; yet also to review the complex ways in which the cases are remembered or understood as turning points. Two symposia hosted at the Melbourne Law School commemorated these anniversaries and the proceedings will be published in two special issues of the Griffith Law Review.
These symposia placed the cases into conversation with each other for the first time, opening new ways of approaching and writing about law’s authority and narratives as constitutive of an evolving Australian national identity into the 21st century. Continue reading
Protecting the Integrity of Securities Markets — What is an ‘Artificial Price’?: DPP (Cth) v JM
By Professor Ann O’Connell
In 1814 a uniformed man posing as ‘Colonel du Bourg’ arrived at Dover bearing news that Napoleon had been killed and his armies defeated. The effect on the London Stock Exchange was dramatic — more than £1.1 million of government bonds were sold in one day before it became clear that the news was a hoax. Captain de Berenger, who posed as the Colonel, was charged with having conspired by spreading false rumours to increase the price of the bonds so that he (and others) could profit from the sale (R v de Berenger (1814) 3 M&S 67). More recently, in January of this year an anti-coal activist released a fake press release purporting to be from the lenders to a mining project to be carried out by listed company, Whitehaven Coal Ltd. The press release announced that the lender was withdrawing from the project for ‘ethical reasons’. The effect was to cause panic selling and the price of Whitehaven’s shares fell dramatically before a trading halt was implemented.
In DPP (Cth) v JM  HCA 30, the High Court considered the legality of a less dramatic way of affecting the securities market: strategically buying shares. The Commonwealth Director of Public Prosecutions alleges that JM asked a family member to buy shares in a company for the purpose of lifting its share price sufficiently high to prevent a bank from requiring extra collateral for a loan he took out to buy call options in the same company. JM has been charged with the crime of creating or maintaining an ‘artificial price’ in a financial market. In advance of his trial, the High Court agreed to resolve a dispute about the meaning of ‘artificial price’. Continue reading