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.

Fortescue concerns the constitutionality of particular sections of three pieces of legislation that make up the Labor government’s controversial minerals resource rent tax (MRRT). The judgment promises to be a constitutional law blockbuster, given that the case raises four significant constitutional issues about whether the MRRT discriminates between States (contrary to s 51(ii)), whether it preferences one State over another (contrary to s 99), whether it contravenes the Melbourne Corporation [1947] HCA 26 doctrine, and finally, whether the MRRT contravenes s 91 by taking away a State’s ability to grant ‘aid’ to miners of iron ore. Some of these issues have not been entertained by the High Court in some time (in the instance of the s 91 claim, in several decades). Fortescue took up just over two full days of hearings in the Full Court: those transcripts, earlier leave hearings and a link to written submissions can be found at the Fortescue case page.

Akiba concerns the possible extinguishment of native title right to take fish for trade or sale by Queensland fisheries legislation that prohibits commercial fishing without a licence, as well as the meaning of ‘reciprocal rights’ and ‘occupation based’ rights. Justice Finn of the Federal Court made a native title determination that identified, among other things, a right to take resources from the native title areas for any purpose. A majority of the Full Federal Court allowed the Commonwealth’s appeal against Justice Finn’s determination, and varied it to exclude the taking of fish for trade or sale. Among other things, the High Court will assess whether the FCAFC correctly applied the principles in Yanner v Eaton [1999] HCA 53 and Harper v Minister for Sea Fisheries [1989] HCA 47 in its decision. Links to hearing transcripts and the written submissions can be found at the Akiba case page.

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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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