Monthly Archives: October 2016

News: Vic CJ proposes Australian Court of Appeal

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At this year’s national conference of the Australian Bar Association, Victorian Chief Justice Marilyn Warren, after outlining the success of Victoria’s Court of Appeal in finalising civil appeals, provocatively added:

Now taking the local level of excellence, of course it extends across the national superior courts. So what opportunities arise to market that collective excellence? An opportunity that lies before all of us as the collective superior courts of Australia is to contemplate a national appellate court.

Of course, Australia already has a national appellate court, the High Court of Australia, which, unlike the Supreme Court of the United States, can hear appeals from any Australian court on any subject. Why, therefore, call for a second national appellate court? Warren CJ gives three related reasons. Continue reading →

‘Parliamentary Perks’ as Constitutionally Protected Property?: Cunningham v Commonwealth

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By Dr Lael Weis

Cunningham Case Page

How could the same constitutional provision that Darryl Kerrigan famously invoked to protect his ‘castle’ be relied upon by former Members of Parliament to protect ‘gratuitous’ — in the sense that they go above and beyond entitlements based on superannuation contributions — retirement benefits against any possible future reductions? As news coverage of the High Court’s recent decision in Cunningham v Commonwealth [2016] HCA suggests, the very contention is offensive to public sensibilities.

The constitutional provision in question, s 51(xxxi), protects individuals from the arbitrary acquisition of property by requiring that the acquisition of property by the Commonwealth be ‘on just terms’. Yet it seems highly counterintuitive to think of gratuitous retirement benefits — funded by taxpayer money, no less — as ‘property’ that the Constitution affords protection to. As one opinion piece scoffed, ‘you could hardly be blamed for imagining a snort of derision from the Bench at the implication that the [former parliamentarians] believed it was their own money they were fighting for.’ Surely they’re dreamin’ … or are they?

In this blog post I will briefly comment on the seemingly odd character of the constitutional challenge, explaining why Cunningham is not in fact that odd as far as s 51(xxxi) cases go. I will then offer a few remarks on what the commonplace character of challenges of this kind tells us about the broader challenges that confront the High Court’s jurisprudence in this area, and why the Court didn’t exactly tell the plaintiffs to ‘dream on’.

‘Property’ protected by the constitutional guarantee

In reality, cases like Darryl Kerrigan’s — which involve straightforward real property interests — are atypical for Australian constitutional property law. Australian constitutional property law much more frequently Continue reading →

Greyhounds, Michael McHugh and the Integrity of the Judiciary

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By Gabrielle Appleby and Alysia Blackham

On 16 June 2016, retired High Court judge, the Hon Michael McHugh AC QC delivered his report as Commissioner of a Special Commission of Inquiry into the Greyhound Racing Industry in NSW. The report found ‘overwhelming evidence of systemic animal cruelty, including mass greyhound killings and live baiting’, and concluded that the industry had ‘fundamental animal welfare issues, integrity and governance failings that can not be remedied.’ Relying on the report, the NSW Government moved to shut down the greyhound racing industry, with legislation introduced to effect a full closure by 1 July 2017. In a move described by the NSW Opposition as the ‘mother of all backflips’, the NSW Premier has now confirmed that greyhound racing will not be banned after all, with ‘tough penalties’ to be introduced to ensure animal welfare instead.

Banning greyhound racing is a politically and emotionally charged issue. Prior to the government’s backflip, the NSW Greyhound Racing Industry Alliance criticised the Special Commission of Inquiry report as being ‘biased and seriously flawed’. It argued that racers and trainers were denied procedural fairness. There were allegations that the report was a ‘stitch up’, with the result predetermined by NSW Premier Mike Baird. The greyhound industry even brought a claim in the NSW Supreme Court, seeking to have the report declared invalid. Others applauded the ban, and saw Continue reading →

News: Another NSW-Vic schism amongst special leave grants

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It is always hard to predict the outcome of special leave applications, but one category of appeal comes close to a certainty: cases where Australian courts have divided on the meaning of a single, important statute. Earlier this year, the High Court (in a divided decision of its own) entered into a key dispute between the NSW and Victorian courts about the meaning of Australia’s ‘uniform’ evidence law, and last month the Court took on a case dealing with a second dispute between those courts about that law. Last week, the Victorian Court of Appeal decided not to follow the NSW Court of Criminal Appeal on the precise role of guilty pleas in federal sentencing, guaranteeing that the issue will reach the High Court soon. This month, the sole grant of leave ‘on the papers‘ was a pair of cases where the NSW and Victorian courts reached different views on the fault element of federal drug offences.

The Court’s new process continues to be unpredictable. For the first time since the process began, the Court held two oral hearings – these were held, unusually, in separate weeks, and yielded five more special leave grants. The Court’s written dispositions refusing leave continue to be very uninformative. One exception was the Court’s refusal of a NSW criminal appeal, which included the Court’s view that the NSW Court of Criminal Appeal was right to apply the High Court’s House ruling (requiring an error of law before a decision can be reviewed) to a trial judge decision; alas, the NSW case is (for now) suppressed, so the public is none the wiser about the nature of this ruling. Chief Justice French continues to play no role in the Court’s written dispositions, but participated in (at least) the first oral hearing.

The six matters where leave was granted are appeals from the following decisions: Continue reading →

Ainsworth v Albrecht

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The High Court has allowed an appeal against a decision of the Queensland Court of Appeal relating to the alteration of the rights of lot owners to common property in a community titles scheme. The appellants and first respondent are owners of lots in the community title scheme at Viridian Noosa Residences. When the first respondent sought to amalgamate two balconies on his lot, which would require his exclusive use of the common property airspace between the balconies, the body corporate rejected the request. Following a ruling by an adjudicator, which was overturned by QCAT, the QCA restored the adjudicator’s initial ruling, holding that the adjudicator’s role was not limited to asking whether the present appellants’ objections (and those of the architect) were reasonably Continue reading →

Cunningham v Commonwealth

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The High Court has decided a constitutional matter on the annual allowance payable to retired members of parliament. The plaintiffs, four retired ALP and LNP MPs, challenged the validity of various provisions of statutes relating to retirement allowances and travel benefits (‘Life Gold Passes’) for former parliamentarians and the powers of the Remuneration Tribunal. The plaintiffs contended that those allowances amounted to property rights within the meaning of s 51(xxxi) of the Constitution, and that changes to those provisions and the connected tribunal Continue reading →

Prince Alfred College Inc v ADC

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The High Court has allowed an appeal against a decision of the Full Court of the South Australian Supreme Court on vicarious liability of a school for an employee’s child sexual abuse offences. While a student at Prince Alfred College, the appellant was sexually assaulted multiple times by a boarding house master, Bain, who was dismissed once the school learned of the abuse, and who had previously been convicted of gross indecency and suspected of abusing students at a previous school. The appellant contended that the school was vicariously liable for Bain’s abuse, and that it was negligent in failing to make proper and adequate inquiries into Bain’s suitability for employment. The SASCFC overturned the trial judge’s decision to dismiss the action, Continue reading →

Lyons v Queensland

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The High Court has dismissed an appeal against a decision of the Queensland Court of Appeal on whether preventing a deaf person from serving on a jury constitutes discrimination. The appellant, who is deaf, is a proficient lip reader, but requires an Auslan interpreter when communicating with people who do not know Auslan. After being called for jury service, the appellant notified the Deputy Registrar that she required an Auslan interpreter, after which the Deputy Registrar excluded the appellant as a potential juror under s 4(3)(l) of the Jury Act 1995 (Qld) which precludes a person with a ‘physical or mental disability that makes the Continue reading →

News: Re-reading Monis v the Queen

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The High Court’s judgment, Monis v The Queen [2013] HCA 4, concerns the meaning and validity of the federal government’s ban on offensive postal communications. However, the case is known for many more things: the extremity of the communications sent by the defendants to bereaved families condemning the deceased’s involvement in military operations; the rare evenly divided High Court ruling, upholding the NSW Court of Criminal Appeal’s dismissal of the defendants’ pre-trial challenge to the statute’s constitutionality; Justice Dyson Heydon’s final judgment, quoting Kipling’s My Boy Jack and condemning the implied freedom of political expression as he applied it (one of the ‘great dissents’ nominated in Andrew Lynch’s edited collection); later accusations against the defendants of much more serious crimes; and, finally and most dramatically and sadly, Man Haron Monis’s killing of two people (and his own death) during the siege of Martin Place’s Lindt Cafe.

It is not surprising that the case continues to draw academic attention. The latest instance is an entire book devoted to the case. Continue reading →