The High Court has allowed an appeal against a decision of the Western Australian Court of Appeal on the availability of compensation for landowners affected by a public purpose reservation. The respondents were in the process of purchasing a parcel of land when it was made subject to a public purpose reservation under pt 4 of the Planning and Development Act 2005 (WA), which prevented the respondents from developing the land without the appellant Commission’s approval. The appellant refused that approval, and the respondents then claimed compensation under pt 11 div 2 of the Act, s 173 of which provides that ‘a person whose land is injuriously affected by the making … of a planning scheme is entitled to obtain compensation’ for that injurious affection. The appellant then declined each claim on the basis that none of the respondents fitted Continue reading
Daily Archives: 8 February 2017
Commissioner of State Revenue v ACN 005 057 349 Pty Ltd
The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the repayment of erroneous land tax payments. The appellant Commissioner wrongly assessed a double land tax payment of the respondent taxpayer’s land between 2008 and 2012, and repaid the excess amounts assessed. The Commissioner refused to repay similar excessive payments from 1990 to 2002. The Court of Appeal held that the earlier assessments contained the same duplication error as the later one. The Court of Appeal noted that that error was not disclosed on the face of the assessments and could not have been discovered by the taxpayer with reasonable diligence, though it was known to the Commissioner, and ordered repayments. The Court of Appeal Continue reading
Palmer v Ayres, Parbery and Owen as liquidators of Queensland Nickel Pty Ltd (in liq); Ferguson v Ayres, Parbery, Owen as liquidators of Queensland Nickel Pty Ltd (in liq)
The High Court has decided a constitutional matter on the validity of s 596A of the Corporations Act 2001 (Cth), holding that the section is not invalid as contrary to ch III of the Constitution by conferring non-judicial power on federal courts and courts exercising federal jurisdiction. Section 596A provides that on the application of an eligible applicant, a court is to summon a person for examination about a corporation’s examinable affairs if it is satisfied that the person is or was an officer of the company prior to it being wound up.
The plaintiffs were directors of Queensland Nickel at various points from 2013. Following a successful application by creditors to wind the company up in April 2016, the defendant liquidators summoned the plaintiffs for examination under s 596A, and the plaintiffs were examined and produced documents. The plaintiffs then challenged the constitutional basis of s 596A, making six submissions in support of that argument. First, that the power to summon a person under s 596A did not satisfy the functional or ‘classical’ Continue reading
Catch-22 in the Court of Disputed Returns: Re Culleton (No 2)
By Jeremy Gans
‘What did you mean,’ he inquired slowly, ‘when you said we couldn’t punish you?’ ‘When, sir?’ ‘I’m asking the questions. You’re answering them.’
No-one cares about Re Culleton [No 2] [2017] HCA 4. Not Rod Culleton, who is out of the Senate regardless, thanks to his bankruptcy problems. Not political types, because the One Nation candidate’s spot will just be taken by another one. Not anyone else, because no-one much likes the ex-Senator (or never Senator or whatever he is — was? — now) or cares who’s who in One Nation. And, it seems, not the High Court either, which last week phoned in a judgment in the case.
This indifference is a bit of a pity. Re Culleton [No 2] raises lots of issues that have nothing to do with Culleton and a number that have nothing to do with elections — and the High Court’s judgment fluffs several of them. Re Culleton [No 2] is a fine example of much that is wrong with Australia’s apex court these days.
‘I didn’t say you couldn’t punish me, sir.’ ‘When?’ asked the colonel. ‘When what, sir?’ ‘Now you’re asking me questions again.’
Every Australian’s right to be elected to Parliament (and to cast a valid vote for their preferred candidate) is limited by the following text:
44 Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Section 44 of the Constitution is well meant, but has mostly silly effects. Para (i) forces all dual citizens who want to stand for election to first give up their non-Australian citizenship forever. Para (iv) likely forces all public servants (including all teachers) to quit (and not just take leave from) their jobs if they just want to try to become an MP. Para (v) is basically incomprehensible (and might invalidate the election of many investors, depending on how the High Court rules in Re Day [No 2].) Para (iii), the best of a bad bunch, still makes it risky for anyone to combine running a business with being a politician (as both Rod Culleton and Bob Day exemplify.)
And then there’s para (ii), which keeps Parliament free of (some) criminals. While that certainly sounds like a good idea, Australia’s contemporary criminal law is a good deal broader than most people imagine. The drafters of s 44(ii) wanted to ban people convicted of a ‘felony or any infamous crime’, which in 1900 covered the sort of crimes that could see criminals executed or deprived of all of their property. But Samuel Griffiths, realising that criminal law terms can change or lose their meaning over time, suggested a different test: ‘any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’. Alas, those replacement words – especially ‘offence punishable’ – are now s 44(ii)’s biggest problem.
‘When didn’t you say we couldn’t punish you? Don’t you understand my question?’ ‘No, sir. I don’t understand.’ ‘You’ve just told us that. Now suppose you answer my question.’
We mainly know criminal ‘offences’ by their shorthand labels — murder, rape, theft, etc — but, under Australian law, offences actually consist of a complex (often very broad) definition and a maximum (often very high) penalty. Lots of offences cover an extremely wide range of behaviour, from absolutely trivial to extremely serious. Assault can be anything from an unwanted tap on the shoulder to a kick in the face. Drug possession can be anything from one banned pill to a truck full of contraband. Criminal damage can be anything from putting up a poster to burning down a house. Child pornography can be anything from a sext on your phone to a hard drive’s worth of horror. And so on. We tolerate these broad definitions (and the accompanying vast maximum penalties) because Australia’s criminal justice system is also full of discretion: prosecutors rarely chose to prosecute trivia and, if they do, judges rarely choose to punish it.
But there is no discretion in s 44(ii). If you have ever done anything trivial that happens to fall within the definition of a serious offence, then you can lose your right to stand for election (and your voters will lose their right to elect you) simply through bad timing, even though you never came within cooee of ‘imprisonment’. All it takes is for someone to charge you with an offence that bundles together whatever trivial thing you did with much more serious behaviour that merits a lengthy stay in prison. That is exactly what happened to Rod Culleton. Continue reading