At a hearing on Monday, Gageler J ordered the ‘removal’ to the High Court of a NSW matter challenging the constitutionality of recently enacted NSW legislation retrospectively validating some past actions by that state’s Independent Commission Against Corruption. The Judiciary Act permits the High Court to move any current constitutional or federal dispute in any Australian court directly to the High Court if one or more parties (or an Attorney-General) applies. Last Tuesday, Gageler J agreed to expedite the request to move the application and ordered the parties to provide written submissions. According to Monday’s reasons, those submissions (which are not publicly available) were persuasive:

I am persuaded to take this course having regard, in particular, to the potential for an early resolution of the constitutional issue by this Court to result in a significant saving of time in the hearing and disposition of the proceeding between the present parties that is now pending in the Court of Appeal, as well as to the resolution or substantial resolution of a number of other proceedings now pending in the Supreme Court of New South Wales in which the same issue arises, or is likely to arise.

Indeed, the removal was supported by the party challenging the legislation and was not opposed by ICAC. (By contrast, see here on unsuccessful applications for removal.)

The current ICAC matter has close ties to two separate High Court judgments that were brought down on April 15 this year. Continue reading →