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  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
Monthly Archives: August 2015
News: Hon Ken Hayne to be commissioned for parliamentary inquiry into Victorian Auditor-General
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
News: Sitting in Memory of the Late Honourable John Leslie Toohey AC
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.
News: Sir Anthony Mason mulls proportionality
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.
News: New Court cases include one touching on Triggs controversy
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
News: Referendum on constitutional meaning of marriage
“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  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
Filippou v The Queen
The High Court has unanimously dismissed an appeal from a decision of the New South Wales Court of Criminal Appeal on sentencing in the context of a judge-only conviction and provocation. Following a long history of domestic noise disruption complaints culminating in a shooting, the appellant was convicted by Mathews AJ Continue reading
Tomlinson v Ramsey Food Processing Pty Ltd
The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal relating to issue estoppel in the context of employment law. Tomlinson was injured while working at an abattoir operated by Ramsey Food. Tomlinson claims he was an employee of another company, Tempus Holdings Pty Ltd, during the time of the injury. Ramsey argued Continue reading
News: Court takes a new appeal on advocates’ immunity
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  NSWCA 335, which concerns advocates’ immunity from negligence actions. Continue reading
News: Who would have standing to challenge the citizenship deprivation law?
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
Ausnet Transmission Group Pty Ltd v Commissioner of Taxation
Miranda Stewart, ‘Tax and Power in the High Court: The Capital Cost of an Electricity Monopoly: Ausnet Transmission Group Pty Ltd v Federal Commissioner of Taxation‘ (26 November 2015).
The High Court has dismissed an appeal from a decision of the Full Federal Court on the deductability of imposts. The appellant company held an electricity transmission licence in Victoria. Pursuant to an Order of the Governor in Council made under s 163AA of the Electricity Industry Act 1993 (Vic), as a ‘holder of a licence’ and as part of its acquisition of another company under a privatisation scheme, it was required to pay a series of imposts to the State. The appellant claimed that the imposts were deductible Continue reading
Smith v The Queen
The High Court has unanimously dismissed an appeal from a decision of the Queensland Court of Appeal on procedural fairness and majority jury verdicts. The appellant was convicted of rape by a majority jury verdict of 11:1. After several hours of deliberation on the issue of whether the appellant had an honest and reasonable mistaken belief as to consent, the jury disclosed to the Court its voting pattern, which the trial judge Continue reading
Police v Dunstall
The High Court has unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia on judicial discretion to exclude evidence that was unfairly or improperly obtained. Dunstall was stopped by police while driving and failed a breathalyser test. A subsequent blood test, to which a person is entitled under s 47K(2a) of the Road Traffic Act 1961 (SA), was incorrectly administered at a nearby hospital, Continue reading