Monthly Archives: December 2013

Is Victoria’s Constitution Invalid? Rutledge v Victoria

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By Dr John Waugh

So you don’t want to pay your council rates, or your parking fines? If you live in Victoria, a bit of searching on the internet will provide you with what looks like a great solution: you don’t need to pay, because the Victorian Constitution is invalid. Anything that local councils do under its authority is invalid too. These arguments recently came before the High Court, not for the first time, in Rutledge v Victoria [2013] HCATrans 294 (Hayne J).

Mr Rutledge claimed that he wasn’t bound to pay his rates to the Greater Bendigo City Council, because the creation of the Council wasn’t properly authorised. In effect, the argument was that the Victorian Parliament couldn’t validly establish the Council, because the power it relied on was given by the Constitution Act 1975 (Vic), and that Act was invalid.

Law and mystery
Mr Rutledge had earlier made the same claims in the Victorian Supreme Court, without success. Now he took his case against the State of Victoria and the Greater Bendigo City Council to the High Court. They applied for judgment against him, on the ground that his action was bound to fail.

It’s not hard to see the appeal of arguments like these, at least until you look at the details. Arguments about constitutional validity turn up routinely in the news, and occasionally the courts do indeed overturn Acts of Parliament or government decisions on constitutional grounds. To the ordinary ratepayer, it’s not immediately apparent what the difference is between, on the one hand, arguments that the High Court has accepted in such cases as South Australia v Totani [2010] HCA 39 (the Finks Motorcycle Club case) and Williams v Commonwealth [2012] HCA 23 (the school chaplains case) and, on the other, the arguments put forward in Rutledge and similar cases.

From the outside, constitutional law is often mysterious. The subtle and complex grounds on which challenges succeeded in Totani and Williams seem to hold out the promise that similarly arcane reasoning might succeed in other situations. True, the consequences of accepting the arguments for Mr Rutledge would be sweeping, entailing the invalidity of Victoria’s constitution, but it’s possible to find comparable examples by reaching further back into history. Continue reading →

Fly-In Fly-Out Workers Entitled to Accommodation while on Strike: Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd

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By Adriana Orifici

CFMEU v Mammoet Australia Pty Ltd Case Page

The High Court’s final decision before the 2013 federal election concerned the highly political area of industrial relations law. The case, Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36, resulted in a win for the union and striking construction workers. While the then opposition leader was determined to not raise the prospect of industrial reforms during the election campaign, the new Coalition government has since sought to undo industrial initiatives of the past government. This might mean that the High Court’s decision is exposed to legislative reform, with mining lobbyists agitating for the government to bring legislation before parliament to overturn the decision.

In Mammoet the High Court unanimously decided that providing accommodation to striking employees is not a ‘payment’ that is prohibited by s 470(1) of the Fair Work Act 2009 (Cth) (Fair Work Act). This decision is significant because it confines the meaning of s 470(1), which prohibits an employer from making ‘a payment’ to an employee taking protected industrial action in relation to the ‘total duration’ of the action on that day. Moreover the effect of the decision is that if an employer fails to provide a striking employee with non-monetary benefits during a period of protected industrial action, this may constitute adverse action under the Fair Work Act or breach of the terms of a relevant industrial instrument. Continue reading →

News: The High Court blurs the moment

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Today’s High Court announcements on same-sex marriage, immigration detention and consumer law were doubtless disappointments for some. However, the one body that may be especially disappointed is the Court itself. The Canberra Times reports:

The court handed down its findings in the landmark case about 12.15pm, although a statement announcing the decision was accidentally published on the court’s website about 20 minutes earlier.

While French CJ’s announcement in Courtroom 2, reportedly greeted by silence and sobs, was anticipated by many legal observers, others knew exactly what the Chief Justice would announce. Continue reading →

Australian Competition and Consumer Commission v TPG Internet Pty Ltd

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Jeannie Marie Paterson and Veronica Wong, ‘Fine Print Disclaimers May Not Protect Advertising from being Misleading: Australian Competition and Consumer Commission v TPG Internet Pty Ltd‘ (6 January 2014).

Continue reading →

Commonwealth v Australian Capital Territory (‘Same-Sex Marriage Case’)

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News: The High Court sets a time and venue

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You are cordially invited…:

Please be advised that the High Court will deliver the following judgments in the next week:

Thursday, 12 December 2013 at 12:15 pm in Court No.2 Parkes Place, Canberra

Plaintiff M76/2013 v Minister for Immigration Multicultural Affairs and Citizenship & Ors(M76/2013)

Australian Competition and Consumer Commission v TPG Internet Pty Ltd(M98/2013)

The Commonwealth of Australia v. The Australian Capital Territory(C13/2013)

The third case is the same-sex marriage case. This announcement (from the High Court’s Judgment Delivery Notification alert service) confirms the ‘hopes’ that French CJ expressed at the end of Tuesday’s hearings. Barring an unlikely retraction, the validity of the ACT’s marriage law will be known on December 12. Indeed, it will be known not too long after 12.15pm that day. The announcement also reveals two further details: the venue and who else is in the order of ceremonies. Continue reading →

News: The High Court sets a date

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Yesterday’s hearing in the same-sex marriage case concluded with the following words (at 4:40:15 on the video) from French CJ:

The Court will reserve its decision. The Court hopes to be in a position to announce a decision on 12 December.

The first sentence means that the Court will not decide the case right away. That is typical in final hearings, although there are exceptions (see here and here.) However, the second sentence is not at all typical. In most cases, no indication is given and the judgment comes when it comes.  For example, there was no indication at the May hearing that today’s decision on patents would be the Court’s slowest judgment this year. The Court makes exceptions, though, if knowledge of the timing of the judgment would make a significant difference to someone. For example, at the conclusion of the 2010 hearings on the validity of laws on electoral enrolments, French CJ announced that he hoped that the Court would be in a position to announce a decision the next day, presumably saving the Commonwealth Electoral Commission a lot of money in planning for the contingency of a judgment of invalidity after the rolls had closed.

It is easy to see why the High Court announced a (tentative (UPDATE: see second comment below)) date for judgment in Cth v ACT. As has been widely reported, the announcement immediately resolved whether or not this weekend’s planned weddings in the national capital can go ahead (subject to the distant possibility of a speedier Court decision or the less distant possibility of a Commonwealth application for an injunction.) However, the particular date the Court set is a genuine surprise Continue reading →

Bank fees back in court again

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The class action involving bank fees is back in court again. Last year, the class action against banks was uplifted to the High Court in Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 3. It was remitted back down to the Federal Court for decision in light of the High Court’s decision last year and is presently being heard. The case involved the rule against penalties in contract. The essence of the rule is that parties may stipulate the amount payable for certain breaches of contract (known as ‘liquidated damages’), but if the amount payable is not a genuine pre-estimate of loss and is instead in terrorem of the other contracting party (i.e. designed to scare them into performance rather than compensate for loss) then the clause may be struck down by the law against penalties: see Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; (2005) 224 CLR 656, affirming Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

There has been intense media interest in the case (see here and here) and indeed, I was contacted by a number of outlets when the case went back to the Federal Court (for example, here and here) . As noted on Monday, there is a great deal of money at stake for both the banks and the customers. The present class action involves a $57 million claim, but other planned class actions are estimated to be worth $243 million, and more may be in the pipeline, depending on the success of this claim. Continue reading →

News: Same-sex marriage hearing ins and outs

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Today was to be the first of two days of hearings of Commonwealth v ACT, the High Court’s first foray into the issue of same-sex marriage. The dispute has been the subject of a number of excellent media pieces explaining the legal issues, most recently a preview on The Conversation by Sydney Law School’s Professor Anne Twomey, including a link to a paper she presented last week on the key statutory provision in the dispute, s. 28 of the ACT (Self-Government) Act 1988. This blog’s case page provides links to coverage  of the case on Opinions on High, the transcripts of hearings to date, the Commonwealth’s writ of summons and the High Court’ s own archive of orders and written submissions. Following a recent innovation, the Court will post videos of the hearings on its webpage.

The breaking news today is that the Court has reportedly reserved its judgment after just a single day. While we wait for the transcript of the proceedings, the other news at this stage is about who is involved in the hearing and who isn’t: who is on the bench? who is at the bar? and who is absent? Continue reading →

Beyond Male and Female: Time for a Non-Specific Sex Category

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By Anna Chapman

Earlier this month the High Court indicated it was prepared to hear a legal case that tests the ability of intersex Australians to be legally recognised as being neither male or female.

The High Court hearing will be the final decision in a claim initiated in 2010 by NSW resident Norrie, who had applied to the NSW Registry of Births, Deaths and Marriages for a certificate to register a change of sex from male to ‘non-specific’.

The evidence before the hearing was that Norrie (who does not use a last name) did not identify as either male or female. Although at birth Norrie’s sex had been recorded as male, as an adult Norrie had undergone medical procedures, and now self-identified — and was identified in the community — as androgynous.

Statutory declarations from Norrie’s doctors supported the registration of a change in sex to ‘non-specific’. The NSW Registrar initially granted Norrie’s application, but this was later revoked.

Norrie appears to be the first person in Australia to litigate for the right to be identified as being of ‘non-specific’ sex. This ground-breaking litigation squarely challenges the capacity of law to countenance sex and gender diversity. Continue reading →