Last Thursday, Immigration Minister Scott Morrison introduced the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 into the federal Parliament. While the headline issue is the return of temporary protection visas, the Bill contains many other provisions. Indeed, the Explanatory Memorandum observes that the ‘Bill fundamentally changes Australia’s approach to managing asylum seekers’. As asylum seeker law is regularly considered by the High Court, the Bill inevitably responds to a number of the Court’s decisions and is intended to reverse several of them.
The major change is contained in Schedule 5 (‘clarifying Australia’s international law obligations’), which is intended to reverse ‘a series of High Court decisions which have found that the Migration Act as a whole is designed to address Australia’s non-refoulement obligations’, Continue reading
In last Friday’s hearings, the High Court refused special leave to two criminal defendants challenging the validity of NSW’s main drug offence: supplying, or knowingly taking part in the supply of, a prohibited drug. In refusing leave, the Court mostly put to rest doubts that have arisen in recent years about the continued operation of most state drug laws (and a number of other state criminal laws) that overlap with federal criminal laws.
The source of the recent doubts was a 2010 ruling by the High Court Continue reading
First, last year, we mentioned the possibility that the Victorian Supreme Court was going to start a blog. The blog has come to fruition and has just published its first substantive post, ‘The many challenges of modern common law litigation’ by Forrest J. The post appears to be further the court’s ambition of ‘creating greater community understanding’ about the law, as it is clear, (relatively) non-technical, conversational, and offers plenty of context about the issues discussed.
Secondly, for those interested in corporate law and securities regulation, Hayne J gave this year’s Harold Ford Memorial Lecture hosted by the Centre for Corporate Law and Securities Regulation. His lecture was entitled Directors’ Duties and a Company’s Creditors. The video is available on the CCLSR’s website here and on the University’s youtube channel. Hayne J’s paper has been accepted for publication in volume 38(2) of the Melbourne University Law Review which will be published before the end of 2014.
In today’s combined Sydney and Melbourne special leave hearing, the Court granted leave to appeal the following three decisions: Continue reading
The High Court has decided a separate special case that was originally joined to the cases of Plaintiff S297/2013 and Plaintiff M150/2013, recently decided by the Full Court. Continue reading
The High Court has dismissed an appeal against the decision of the WA Court of Appeal in Maxwell v Highway Hauliers Pty Ltd, relating to statutory provisions on the interpretation of insurance contracts. Continue reading
Adriana Orifici, ‘High Court to Examine Whether There is an Implied Term of Mutual Trust and Confidence in Australian Employment Contracts’ (28 January 2014).
The High Court has allowed an an appeal from the decision of the Full Federal Court which recognised the existence in Australian law of an implied term of mutual trust and confidence between employers and employees. Continue reading
By Clare McIlwraith
Comcare v PVYW Case Page
Imagine your employer sends you to a conference interstate. Your travel, expenses and accommodation are all organised and paid for. Your 9-to-5 days and dinners are occupied with conference events. But what of all the other time you have on your hands? It is the stuff of folklore and Hollywood movies (like the 2011 movie Cedar Rapids) that those other times are filled with adventure. But for Australian employees there now exists a limit on what can be done out of the office that will be protected under workplace insurance schemes.
In October 2013 the High Court, by a 4:2 majority, allowed an appeal by the federal government’s workplace insurer, Comcare, denying the Commonwealth government employee respondent, known by the identifier ‘PVYW’, workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SR&C Act).
PVYW had been sent to visit a regional office, and was required to stay overnight at a motel booked by the employer. While staying overnight at the motel, PVYW was struck in the face by a glass light fitting on the bed when it was pulled off the wall of the motel during sexual intercourse with a local acquaintance. Following the incident, PVYW claimed compensation for physical and subsequent psychological injuries under the SR&C Act.
The majority of the court held that the injury suffered by PVYW was not suffered ‘in the course of’ employment. This was because it was not caused through an activity encouraged or induced by the employer or was not considered ‘referable’ to a hotel stay. This last conclusion is perhaps surprising given the mythology of work trips and sex in hotel stays or because as Counsel for PVYW noted that sex is a universal incident of human life ( HCATrans 169).
Although the SR&C Act only applies to Commonwealth government employees the decision will be relevant to all employees subject to workers compensation schemes because each scheme limits insurance recovery in similar (though in some cases more restrictive) ways (see  HCATrans 114). Continue reading
The High Court has spent this week in Brisbane, hearing the constitutional challenge by Hells Angels member Stefan Kuczborkski to various Queensland laws targeting ‘bikie gangs’ and an employment law appeal concerning a man who was dismissed after he held a sign attacking ‘scabs’ during industrial action concerning a coal mine. As well, the Court heard six applications for special leave to appeal from Queensland matters and granted leave in one of them. Continue reading
By Andrew Roberts
Honeysett v The Queen Case Page
The question of how and by whom the reliability of expert testimony should be evaluated is problematic. For many, the prevailing approach in Australia is a cause for concern. However, the recent case of Honeysett v The Queen  HCA 29 presented the High Court with an opportunity to grasp the nettle. In that case, the issue was whether and how a jury could be assisted in comparing the image of the accused taken at a police station to an armed robber captured on a CCTV image whose head was covered by a hood by an anatomy professor pointing out similarities in the images and the absence of any differences.
In criminal trials witnesses are generally prohibited from expressing opinions on matters that are to be determined by the jury. Witnesses are generally expected to testify only to the facts. The drawing of inferences from those facts is the exclusive province of the jury. Opinions offered by witnesses are excluded because they are superfluous. The prohibition is subject, however, to significant exceptions, one of which permits an opinion to be expressed by a witness who possesses ‘specialised knowledge’ — provided that the opinion is ‘wholly or substantially based’ on that knowledge. Such witnesses are allowed to express opinions because the jury is thought to lack the knowledge and experience that would enable it to draw rational and reliable inferences. In such circumstances, the expert’s opinions are required to ensure that verdict returned by the jury is the product of sound reasoning.
Why reliability matters
What then of the issue of reliability? If the justification for allowing experts to offer opinions is that the jury lacks the competence required to draw the inferences drawn by the expert, is the idea that evaluation of the reliability of expert opinion should be left to the jury plausible? Continue reading