Thursday morning’s directions hearing relating to the possible of ineligibility of sitting federal MPs due to their possible dual citizenship began with a series of ‘determinations‘ by the Kiefel CJ under this section of the Commonwealth Electoral Act:
The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this Part to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.
Most actions before the High Court have two clear parties, because one of the parties starts the action and names their opponent. By contrast, the present five (and counting) applications are just ‘questions’ referred to the Court of Disputed Returns by parliament, and the Court needs to work out who (if anyone) will actually be making arguments. Hence, the Court itself advertised the references on its webpage and called for submissions from prospective parties. Kiefel CJ then determined who were the lucky (or unlucky) parties for each reference, for example:
In relation to the reference concerning Mr Ludlam, the orders of the Court are: The following persons shall be allowed to be heard on the hearing of the reference and shall be deemed to be the parties to the reference pursuant to section 378 of the Commonwealth Electoral Act 1918 (Cth): (i) Scott Ludlam; and (ii) the Attorney-General of the Commonwealth. Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be heard by the Court. The submissions of Joe Bloggs, Deearne Gould, Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be received by the Court and will not be taken into account on the hearing of the reference.
Senator Scott Ludlam was the first of the five MPs whose dual citizenship became an issue. He has since resigned and, according to the Commonwealth Solicitor-General, isn’t going to argue that he was ever eligible to be a Senator. However, Kiefel CJ said that she wasn’t willing to resolve his position separately from the rest, so he became a (unwilling?) party, as did the Commonwealth Attorney-General (who said he won’t necessarily be arguing either way on Ludlam’s eligibility.) But Kiefel CJ rejected nearly all the remaining hopefuls, including barrister John Cameron (who revealed Ludlam’s dual citizenship) and the ubiquitous ‘Joe Bloggs’ (who made submissions on all five candidates.) The Chief Justice’s detailed reasons for these determinations (if any) have not yet been published.
The remainder of Thursday’s hearing was devoted primarily to setting a date for the hearings, although that was quite complex. Continue reading
On Friday’s oral special leave hearings, the High Court added three new cases to its docket, while rejecting leave in a high profile matter, former army reservist, Bernard Gaynor, whose sacking by the ADF over anti-gay and anti-Islam views he posted online will accordingly stand. However, in the week after June’s oral hearings, the High Court granted leave on the papers in a connected set of five disputes concerning the powers of state tribunals, which include an anti-discrimination complaint against Gaynor over his alleged anti-homosexual remarks.
The four matters that can now be appealed to the High Court are: Continue reading
The High Court has dismissed an appeal against a decision of the Full Federal Court on the circumstances in which a bankruptcy court may ‘go behind’ an earlier debt judgment. In a 2015 judgment, the NSW Supreme Court held that Compton, who had guaranteed the Ramsay’s debts, now owed almost $10 million to the company, and rejected his contention that he was not aware of the debts as they were not attached to the guarantee papers he had signed. When Compton himself went bankrupt, Ramsay presented a creditor’s petition to the Federal Court to sequester the debt to preserve it from the demands of other creditors, and Compton, in response, submitted new evidence that he contended showed he never actually owed anything to the company. Section 51(1)(c) of the Bankruptcy Act 1966 (Cth) provides that
At the hearing of a creditor’s petition, the Court shall require proof of: …
(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
The FCAFC unanimously held that the primary judge should Continue reading
The High Court has allowed an appeal against a decision of the Western Australian Court of Appeal on the statutory preconditions for the grant of mining leases. In 2011, two of the respondents made applications to have their mining exploration licences converted into lining leases. Those applications did not include a ‘mineralisation report’ (which arrived four months later) or a ‘mining operations statement’ (which never arrived), both of which the Mining Act 1978 (WA) required an application ‘shall be accompanied by’. Nonetheless, the Mining Warden recommended the leases be granted and the Minister made the decision to do so. The WASCA held that while the applications failed to meet the requirements of the Act, that failure did not preclude the warden or Minister from considering or granting the applications, as they were not factors that had to be considered before the leases could be recommended or granted.
The High Court held, 4:1, that the WASCA erred in its construction of the statutory regime (Kiefel CJ, Bell, Gageler and Keane JJ, Nettle J dissenting).
The majority (Kiefel CJ, Bell, Gageler and Keane JJ) emphasised that considering the WASCA’s reasoning must begin with a consideration of the majority judgment in Project Blue Sky v ABA  HCA 28. Whereas the WASCA had relied on that approach to conclude that the document submission were not conditions precedent to a hearing or recommendation by the warden (see ff), the majority held Continue reading
The High Court has decided a special case on the legality of the Australian Government’s designation of Papua New Guinea as a regional processing country and the effect of a PNG Supreme Court decision on those arrangements.
The plaintiff is an Iranian national claiming refugee status who was detained as an ‘unauthorised maritime arrival’ and later taken to PNG (pursuant to s 198AD of the Migration Act 1958 (Cth)) in line with the ‘regional processing’ arrangements that had been put in place, namely, the 2012 designation of PNG as a regional processing country (under s 198AB(1)) and a direction made by the Minister in 2013 to move the plaintiff there (under s 198AD(5)). Once in PNG, the plaintiff became subject to PNG law and the directions of the PNG Minister for Foreign Affairs and Immigration, which required that he remain at the Manus Regional Processing Centre, which is run by Broadspectrum (Australia) Pty Ltd pursuant to a contract between that company and the Commonwealth. The PNG Minister rejected the plaintiff’s application for refugee status, though he has not yet been removed from Manus. Prior to this determination, the PNG Supreme Court handed down its decision in Namah v Pato  PGSC 13, in which the PNGSC held that the Continue reading
On 12th September 1996, a 4-2 majority of the High Court struck down a NSW law that applied to only one person:
Gregory Wayne Kable is the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable.
The law allowed a Supreme Court judge to detain Kable (and only Kable) for six months at a time, if the judge thought that Kable was still a danger to the community. Today, nearly twenty-one years later, the High Court unanimously rejected a challenge to a Victorian law that applies to only one person:
In this section a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.
That law forbids Victoria’s parole board from ever releasing Knight (and only Knight, who perpetrated 1987’s Hoddle St Massacre), even if the parole board thinks he is no danger to the community. Kable’s law was struck down because it placed his freedom in the hands of the courts. Knight’s was upheld because it left his freedom in the hands of no-one at all.
When Kable was decided in 1996, some hoped it was the start of judicial scrutiny of laws that sought to impose punitive outcomes by unjust means Continue reading
The High Court has dismissed an appeal from a decision of the Victorian Court of Appeal on statutory assessments of whether a mental disorder is ‘severe’ in the context of transport accidents. The appellant was injured in a car accident and was diagnosed with post-traumatic stress disorder. Section 93 of the Transport Accident Act 1986 (Vic) allows for a transport accident victim to recover damages for injuries suffered, including ‘severe’ mental disorders. While the Act does not define the meaning of ‘severe’, the ‘narrative test’ in Victoria was stated in Humphreys v Poljak  VicRp 58 (emphasis added by the High Court, at ):
To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?
The trial judge held that the appellant’s PTSD was due to the accident, but given the wide range of social, recreational and domestic matters that she participated in, it failed to reach the threshold of ‘severity’ require by the statue and the test. The VSCA held, by majority, that the trial judge erred in approaching Continue reading
The High Court has determined a special case on whether s 74AA of the Corrections Act 1986 (Vic) is invalid as contrary to ch III of the Constitution, holding that it is not. The plaintiff pleaded guilty to seven counts of murder and 46 counts of attempted murder, and was sentenced to a total non-parole minimum term of 27 years, which expired on or around 8 May 2014. A month before, the Parliament of Victoria enacted s 74AA, which purported to prevent the Adult Parole Board from releasing the plaintiff, who is named in the section, unless it is satisfied that the plaintiff is in imminent danger of death or is seriously incapacitated and thus unable to harm any person. The plaintiff brought a special case before the Continue reading
Take a moment to consider the workload of the Commonwealth Solicitor-General, Stephen Donaghue, now seven or so months into his job. On Monday and Tuesday, he argued the Commonwealth’s position before the High Court in Brisbane in a horrendously complex proceeds of crime matter, an appeal from a 1275 paragraph Queensland judgment. He (presumably) spent last weekend advising the Prime Minister on the potential disqualification of his deputy under s44(i) of the Constitution, advice Turnbull cited in Parliament on Monday. And last Friday, he represented various Commonwealth parties being sued in two actions over the proposed poll on same-sex marriage in a directions hearing before Kiefel CJ. Donaghue’s busy long weekend is one sign of how the recent whirlwind in federal politics will soon descend onto the High Court, which has only just returned from its winter break and is still unable to work in its renovations-affected Canberra home.
The High Court last ruled on an issue of same-sex marriage in 2013, Continue reading
The High Court has allowed an appeal from a decision of the NSW Court of Criminal Appeal on the intersection of constructive homicide and joint criminal enterprise. The appellant and victim were involved in the manufacture of methamphetamine, during the course of which a fire was sparked by a gas burner killed the victim. The constructive murder portion of Section 18(1) of the Crimes Act 1900 (NSW) provides that
[m]urder shall be taken to have been committed where the act of the accused … causing the death charged, was done … during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years
The appellant was tried on one count of drug manufacturing, one count of murder (Count 2a) and in the alternative, one count of unlawfully causing the death of the victim (Count 2b). At trial, the Crown could not exclude the possibility that the accused caused his own death, but contended that the appellant was nonetheless guilty of constructive homicide because the victim died in the course of committing Count One, which here carried a penalty of life imprisonment. At the conclusion of the trial, the trial judge, Hamill J, directed the jury to acquit the appellant of Counts 2a and 2b on the basis that the principles of common purpose and constructive murder could not interact to make the appellant liable for murder. The NSWCCA overturned that ruling, holding that it did not matter whether the appellant foresaw the victim’s death or the fire itself, whether lighting the burner was a joint act, or whether the defendant foresaw the victim would probably be harmed. Continue reading
The High Court has allowed an appeal against a decision of the Full Federal Court on income tax exemption for officials of international organisations. The respondent was employed as a civil engineer on a United Nations project in Sudan. Section 6(1)(d)(i) of the International Organisations (Privileges and Immunities) Act 1963 (Cth) provides that a person holding an office in an international organisation to which the Act applies (which includes the UN) will have the privilege of, among other things, ‘[e]xemption from taxation on salaries and emoluments received from the organisation’ (sch 4, cl 2). A majority of the FCAFC held that the Administrative Appeals Tribunal was correct in finding that the engineer did hold an ‘office’ under the Act and was an ’employee’ of the United Nations, and was thus exempt from income tax on his income. On appeal to the High Court, the central issues were whether the appellant did hold an office within the meaning of s 6(1)(d)(i), and whether a 1992 determination by the Continue reading