Monthly Archives: November 2014
News: Unsuccessful High Court litigants succeed at the UN
Last week brought news that NSW prisoners Bronson Blessington and Matthew Elliot succeeded in a complaint to the United Nations Human Rights Committee. Now in their forties, the pair were teens when they raped and murdered Janine Balding in 1988 and were in their thirties when the High Court rejected their appeals against their life sentences in 2007. The Human Rights Committee’s finding – that a NSW law that barred their parole until they were near death violated their right against cruel, inhumane or degrading treatment under the International Covenant on Civil and Political Rights – was foreshadowed by Kirby J ten years ago during a constitutional challenge to similar laws:
At the time of the offence for which Mr Blessington was convicted and sentenced, he was 14 years of age…. On a true construction of the impugned law, Mr Blessington’s “possibility of release” is, in my view, a chimera, and deliberately so. If that is the case, the impugned law is in conflict with binding international obligations expressing universal human rights and fundamental freedoms.
However, Kirby J was the only High Court judge to hold that the laws were invalid. In 2012, the High Court unanimously rejected a challenge to even stricter laws to largely prevent the parole of Elliot, Blessington and eight other New South Wales prisoners, the subject of the Committee’s recent finding.
The UN Committee’s finding does not overturn or even bring into question the High Court’s rulings. Continue reading
No Duty to Detain Individuals with Severe Mental Health Problems: Hunter and New England Local Health District v McKenna
By Professor Bernadette McSherry
Mental health practitioners may be breathing a sigh of relief that the High Court has unanimously held that a New South Wales hospital and a psychiatrist in its employ held no duty of care to the relatives of a man who was killed by a recently discharged patient. While the judgment is confined to a consideration of the effect of a statutory provision on whether or not a common law duty of care exists, the finding has repercussions for the movement in modern mental health care towards a focus on recovery and human rights rather than purely on preventive detention.
Risk assessment and risk management of those with severe mental health problems is now a core part of mental health practice. Mental health laws in Australian states and territories generally enable the involuntary detention and treatment of those with mental health problems on the basis that the individual concerned needs to be prevented from causing serious harm to him or herself or to others.
The question of how mental health practitioners ought to determine whether someone is at risk of harming him or herself or others is subject to a vast amount of literature and debate: see here, here and here. It remains the case, however, that it is exceptionally difficult to predict whether a specific individual may be at risk of harming another, particularly when there has been no history of violent behaviour. Forensic psychiatrists Andrew Carroll, Mark Lyall and Andrew Forrester pointed out in a 2004 article that ‘[n]o method, clinical, actuarial or combined, achieves anywhere near 100% predictive power, whether short or long term risk is considered.’ (at 413).
The deaths of Stephen Rose and Phillip Pettigrove
Phillip Pettigrove was born in 1962 and had a long history of mental health problems. Continue reading
News: Crennan J stops hearing cases ahead of retirement
This week, Australians found out about Crennan J’s pending retirement in the usual way: a column by UNSW’s George Williams speculating on her replacement. (See here for Katy Barnett’s commentary.) Although there has been no official announcement, her decision to retire was clearly known to some members of the NSW legal profession, who organised a farewell for her last Friday. Close watchers of the Court will also have noticed two 6-member benches (all the Court’s judges other than Crennan J) in significant hearings last week concerning the Today FM nurse hoax and bankruptcy procedure. That is consistent with the usual practice where High Court judges stop hearing new cases months ahead of retirement. Justice Crennan will spend her remaining time on the bench hearing procedural and special leave applications, and writing opinions in her three outstanding reserved matters.
While Australians are well used to such goings-on every time a High Court judge retires, Canadians’ experience is quite different. Continue reading
News: Thoughts on new judges for the High Court
This morning, George Williams has a piece in the Sydney Morning Herald, noting that Crennan J and Hayne J will soon retire, and that Crennan J intends to step down from the Court on 2 February 2015. It is natural to predict who will replace the outgoing judges, although as Williams notes:
Every High Court appointment leads pundits to forecast who will be selected. Doing so can be fraught. The most worthy candidates often miss the cut, while others prove a surprise. As I have said elsewhere, predicting the next High Court justice is like trying to pick the winner of the Melbourne Cup, but without knowing who is in the field.
Williams notes that diversity, gender, ethnicity and geography are often taken into account in making new appointments. There has to be a balance between the judges from different States of Australia, and as the two outgoing judges are Victorian, it seems that at least one of the replacements is likely to be Victorian. Consequently Williams concludes:
If you were wanting to place a bet on Australia’s next High Court judge, the smart money would be on a serving judge from Victoria, aged 60 or under, with impeccable legal credentials. The person would also be favourably regarded in conservative circles and would not have a background of supporting the states. Beyond that, it’s anyone’s guess.
News: Three new South Australian cases
The High Court today rejected all of the applications for special leave to appeal listed in its Sydney and Perth registries, but granted leave in three South Australian matters: Continue reading
News: The High Court issues a partial verdict on Qld’s ‘bikie’ laws
Today’s judgment in Kuczborski v Queensland dismissed a challenge to a package of laws passed over a year ago as the Queensland government’s response to a ‘brawl’ between two motorcycle gangs in the Gold Coast suburb of Broadbeach. The case definitively resolves (by a solid 6-1 majority) that a key part of the Queensland scheme (borrowed from a narrower regime in NSW) that subjects participants in (to date, 26) ‘declared’ criminal organisations to criminal laws limiting their public behaviour (including bans on public gatherings of participants, bans from particular addresses; and barring everyone from licensed premises if they are wearing particular clothes or patches) leaves Queensland’s courts’ ‘integrity’ intact.
However, the case does not resolve a number of other issues about the Queensland laws: Continue reading
Kuczborski v Queensland
Jeremy Gans, ‘News: Qld Bikie Laws Challenge Set for Lengthy Hearing in September’ (30 June 2014).
The High Court has decided a special case on the constitutional validity of Queensland’s Vicious Lawless Association Disestablishment Act 2013 (Qld) and related provisions under various other law enforcement statutes dealing with restrictions on public association, licensing and clothing aimed at motorcycle clubs. Continue reading
Hunter and New England Local Health District v McKenna
The High Court has unanimously allowed an appeal from the New South Wales Court of Appeal’s decision in McKenna v Hunter and New England Local Health District. In 2004, Stephen Rose became concerned about the mental health of Continue reading
Minister for Immigration and Border Protection v SZSCA
James C Hathaway, ‘The Conundrum of Concealment: Minister for Immigration and Border Protection v SZSCA‘ (9 November 2014) (reposted from Reflaw)
A majority of the High Court has dismissed the Minister for Immigration and Border Protection’s appeal against the decision of the Full Federal Court in SZSCA. SZSCA fled Afghanistan after the Taliban threatened to kill him in retaliation for working as a truck driver for various aid agencies. Continue reading
The Conundrum of Concealment: Minister for Immigration and Border Protection v SZSCA  FCAFC 155
The High Court’s decision in Minister for Immigration and Border Protection v SZSCA will be handed down on 12 November 2014. In expectation of the judgment we wanted to share this piece by Melbourne Law School Professorial Fellow and former Dean and current professor at Michigan Law School, James C. Hathaway, on the December 2013 Full Federal Court decision in the case. This post has been republished with permission from Reflaw.
By Professor James C. Hathaway
The Full Federal Court of Australia recently considered the refugee status of an Afghan who had worked for nearly a quarter century as a jewelry maker in Kabul, before deciding in 2007 to work instead as a self-employed truck driver. Initially, his work consisted of transporting such goods as wood, animal skins, and food across the country. But starting in January 2011, he agreed to begin hauling building materials from Kabul to Jaghori in order to supply reconstruction projects being undertaken by the government and international aid agencies. He took on this new work because “he was paid more” , noting that “there was not a lot of work and he had to support his family” . When the Taliban threatened to kill him if he continued to transport building materials used in reconstruction, he fled Afghanistan and advanced a refugee claim in Australia.
The claimant reasonably argued that an adverse political opinion had been imputed to him by the Taliban, and that the Afghan government could not be counted on to shield him from the Taliban’s death threats. The Australian government contended, however, that he could avoid the risk by giving up truck driving and returning to his prior career as a jeweler. Counsel for the applicant countered that the applicant could not be compelled to give up his preferred work, and that if that work gave rise to a risk of being persecuted for reasons of an imputed political opinion, his refugee status should be recognized.
The majority of the Full Federal Court of Australia agreed with the applicant. Understanding the High Court of Australia to have ruled in S395 that a decision-maker “cannot require an asylum seeker to behave in a particular manner”  – the only relevant question being “whether an asylum seeker would not in fact behave in a particular matter upon his or her return”  – it was held that there was a duty to grant refugee status given the applicant’s unwillingness to resume his work as a jeweler in Kabul.
This decision continues a no doubt well-meaning, but analytically flawed, approach. Continue reading
Alphapharm Pty Ltd v H Lundbeck A/S
The High Court has, by majority, dismissed an appeal against a decision of the Full Federal Court dealing with the extension of the term of a patent on anti-depressant drugs, and the requirements for extending the time of those applications. Continue reading
Wellington Capital Ltd v Australian Securities and Investments Commission
The High Court has dismissed an appeal against the decision of the FCAFC in ASIC v Wellington Capital Ltd. Wellington sold a portion of a managed investment scheme to a listed company, ARL, in return for the entire issued share capital of ARL, Continue reading