In 2013, the High Court held that there was no requirement to prove innocence in malicious prosecution in the case of Beckett v New South Wales [2013] HCA 17. I wrote an opinion on the case here. Ms Beckett’s malicious prosecution case was then remitted back to the New South Wales Supreme Court for decision. Readers may be interested to hear that the New South Wales Supreme Court has now determined that case. Continue reading →

Yesterday, both houses of Victoria’s parliament approved a motion to request that the Parliament’s Public Accounts and Estimates Committee ‘ inquire into and report no later than 20 October 2015 on allegations made against the Auditor-General, Mr John Doyle, in a formal grievance dated 12 August 2015, by a member of his staff’. Although the request does not detail the nature of those allegations, the Committee’s remit includes whether ‘the Parliament should give consideration to the removal of the Auditor-General from office’ under s. 94C(5) of Victoria’s Constitution. And, although also not detailed in the motion, it appears that the inquiry will be conducted by a very recently retired High Court judge (and current professorial fellow at Melbourne Law School.) Continue reading →

The High Court holds ceremonial sittings to mark significant events: welcomes to judges, farewells to judges, appointments of Queen’s Counsel and Senior Counsel, first and final sittings of judges in particular cities, and final sittings in particular buildings. Such sittings are also held in memoriam for late judges.

On 10 August 2015, the High Court held a Sitting in Memory of the Late Honourable John Leslie Toohey AC in Perth. The transcript is now available here. The Court notes that Justice Toohey’s Western Australian predecessor, Sir Ronald Wilson, was similiarly honoured with a ceremonial sitting some ten years ago, at which Justice Toohey was present. A ceremonial sitting has also been held for the Late Honourable Sir Harry Gibbs in 2005. Presumably a ceremony will be held for Justice Jacobs, who also passed away this year.

Edelman J’s obituary for Justice Toohey was posted on the blog here.

Earlier this month Sir Anthony Mason presented the 21st annual lecture named in his honour at Melbourne Law School and hosted by the Law Students’ Society.

Sir Anthony offered a commentary on contemporary High Court jurisprudence on the relevance of the concept of proportionality in administrative and constitutional law. His focus was on the recent cases of Li, Monis, Unions NSW and Tajjour, which Sir Anthony presented as offering competing perspectives on the place and test for proportionality in Australian law. Sir Anthony did, however, reflect on some of the cases he was involved in from which he traced an historic attention to proportionality by the High Court. These cases included the bicentennial case, Davis v Commonwealth and the refillable bottle case, Castlemaine Tooheys.

Sir Anthony argued that Li represented “a more positive attitude to the use of proportionality” among this Court than past, and he seemingly endorsed the use of proportionality in judicial review to soften the extremely strict standard of Wednesbury unreasonableness.

On the constitutional law freedom of political communication cases of Monis, Unions NSW and Tajjour, Sir Anthony articulated three emergent approaches to proportionality. From Monis, he described Kiefel, Crennan and Bell JJ as grounding an extensive proportionality test (so called ‘structural proportionality’) from European developments. He also distilled competing limited proportionality tests by Gagelar J in Tajjour and by Keane J in the Unions NSW case that would reshape the Lange test for validity of laws that impede political communication if they were to be embraced by the court. As readers of the blog will know from the analysis of Professor Adrienne Stone, how the court resolves its grappling with proportionality might bring clarity to the extent and character of the Australian constitutional freedom of political communication.

A video recording of the lecture can be viewed online.

In today’s special leave hearings in Perth, the High Court granted special leave to appeal on two Western Australian matters. One of those – on a politically sensitive topic, damages for convicted criminals wrongly held in immigration detention – was relied on by Australian Human Rights Commission President Gillian Triggs to recommend $350,000 in damages for another immigration detainee and High Court litigant, John Basikbasik, resulting in attacks on her role and character earlier this year (as discussed here by Katy Barnett.)

The two matters where leave is granted are: Continue reading →

“The type of issue that could be canvassed under Section 51 of the constitution — simply at the moment, in Clause 21, it just says ‘marriage’,” Mr Morrison said. “You could equally put in there opposite- and same-sex marriage and clarify very clearly what the meaning of the constitution is on this question, and to reflect [what] some would argue has been a societal change since the constitution was first written.”

Mr Morrison acknowledged the High Court had already ruled on it. “Justices of the High Court have already expressed opinions on this issue, that’s fine, but what I am saying is I would prefer the Australian people decide this: not me, not [High Court Chief Justice Robert French], but the Australian people.”

Federal Minister for Social Services Scott Morrison here refers to Cth v ACT [2013] HCA 55, where six members of the Court said that ‘When used in s 51(xxi)’ of the Constitution, the federal Parliament’s power to make laws about marriage, ‘”marriage” is a term which includes a marriage between persons of the same sex.’ Attorney-General George Brandis later relied on the same case to declare that ‘No constitutional referendum is necessary in this case.’

Given the High Court’s 2013 holding, what would be the legal effect of the referendum? There are two possibilities to consider. Continue reading →

The High Court held another single location hearing of special leave applications last week in Sydney, ahead of a further day of hearings when the Court sits in Perth this week. Last Friday, the Court granted leave in just one case, while refusing leave in all others, including yet another matter addressing the Court’s trilogy of rulings on accusatorial justice, and a case addressing a major divergence between NSW and Victorian courts on the interpretation of the so-called ‘uniform evidence legislation’.

The judgment where leave to appeal has been granted is Jackson Lalic Lawyers Pty Limited v Attwells [2014] NSWCA 335, which concerns advocates’ immunity from negligence actions. Continue reading →

The Parliamentary Joint Committee on Intelligence and Security is currently holding any inquiry into a Bill to deprive dual citizens of their Australian citizenship if they engage in particular sorts of conduct (including particular terrorist activities and foreign incursions and recruitment), defined by reference to offence provisions in the federal Criminal Code. In evidence before the Committee on Tuesday, Professor George Williams reportedly predicted a speedy High Court challenge to the Bill’s constitutionality:

UNSW professor George Williams told a Senate inquiry on Tuesday that it was the most “problematically drafted bill” he had ever seen, with more constitutional problems in it than any he had given evidence on. This included a law that allows ASIO to detain and question any Australian for up to a week and foreign fighter legislation aiming to restrain Australians returning from conflict zones in Syria and Iraq. Professor Williams had “no doubt” such a law would be challenged in the High Court and had already been approached by “prominent solicitors” who had clients facing charges that are included in the bill. “It’s such an obvious one to bring a challenge to; I don’t see why they wouldn’t to escape loss of their citizenship.”

But the High Court’s decision last year on Queensland’s bikie laws places a potential roadblock in the face of any such challenge: the requirement that the challenger have ‘standing’ to challenge the laws. Continue reading →