The High Court has decided two proceedings challenging the legal basis for the Australian Marriage Law Postal Survey, dismissing the first application and answering questions stated in the special case in the second proceeding, holding that the Minister’s determination to fund the Survey was not invalid, and was validly authorised under the most recent appropriations act.
Following the Government’s 7 August 2017 announcement of a ‘voluntary postal plebiscite’ on whether Australian law should be changed to allow same-sex couples to marry, to be run by the Australian Bureau of Statistics, the Finance Minister (and respondent in the second matter) made a determination entitled ‘Advance to the Finance Minister Determination (No 1 of 2017–2018)’ to provide the ABS with $122 million for the plebiscite. That determination was purportedly supported by s 10 of the Appropriation Act (No 1) 2017–2018, which allows the Finance Minister to make a determination to provide for expenditures not exceeding $295 million where the Finance Minister ‘is satisfied that there is an urgent need for expenditure, in the current year, that is not provided for … in Schedule 1 … because the expenditure was unforeseen until after the last on which it was practicable to provide for it [in the original Bill]’. The Finance Minister stated in the instrument and in an affidavit that because the 2017–18 budget was tabled in May 2017, and Government policy on holding the plebiscite and using the ABS to do so was not changed until August, he was satisfied that there was an urgent need for the expenditure (see further at –). Continue reading
The High Court’s most recent grants of special leave consisted of two immigration matters granted ‘on the papers‘ and two other matters granted after oral hearings in Sydney.
The four cases that will now be appealed to the High Court are: Continue reading
After a lengthy break for renovations (and rare full court hearings in Sydney and Melbourne), the High Court will return to its Canberra headquarters next month. The first case on the business list for Tuesday 10th October is:
In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Matthew Canavan, Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts and the Hon. Barnaby Joyce MP (C11/2017, C12/2017, C13/2017, C14/2017 & C15/2017)
These are five of the seven matters referred to the High Court concerning possible ineligibility under s44(i) of the Constitution, specifically its disqualification of ‘a citizen… of a foreign power’. It is likely that the remaining two matters (concerning Senators Nick Xenaphon and Fiona Nash) will be heard at the same time. (An eighth pending matter about MP eligibility – Labor’s challenge to David Gillespie over his ownership of a shopping centre company with Australia Post as a tenant – is not yet listed and involves entirely separate issues and processes.)
The seven matters to be heard in October aren’t regular High Court challenges where one person sues someone else. Continue reading
Last week, the federal Parliament released a large set of documents from 1986’s ‘Parliamentary Commission of Inquiry’ into the conduct of High Court justice Lionel Murphy, which ended without resolution after the sad news broke of the judge’s imminent death. Justice Murphy’s family have strongly objected to the release, noting that the papers include many wholly unsubstantiated allegations and that there is now no possibility of them being formally investigated; instead, the papers can only contribute to the much more ambiguous judgement of history. None of the allegations relate to Murphy J’s actual work as a High Court judge, but instead are concerned with his alleged activities off the bench (albeit ones that may have led to his resignation or removal from the Court.)
An arguable exception is what is known as ‘Allegation 39‘, Continue reading
The High Court has partly allowed an appeal against a decision of the Full Court of the Supreme Court of South Australia on special and general jury verdicts on the offence of persistent sexual exploitation of a child. Section 50(1) of the Criminal Law Consolidation Act 1935 (SA) prescribes the offence of ‘persistent sexual exploitation of a child’, defined as committing more than one act of sexual exploitation over a period of not less than three days, where an act of sexual exploitation means an act that could be subject of a sexual offence charge. The appellant was convicted under s 50 after the prosecutor gave the jury a list of six alleged abusive acts and asked the jury to convict if it was unanimous that at least two of these acts occurred over a two year period, and the trial judge sentenced him to ten years imprisonment with a non-parole period of six years. The SASCFC rejected the appellant’s contention that the trial judge erred in not taking a special verdict or asking questions of the jury after they returned the general verdict of guilt; specifically, to state which incidents they found had been proved, and in the absence of such information the trial judge should have sentenced him only for the two least serious acts alleged.
The High Court allowed the appeal against the sentence by majority, and unanimously dismissed the appeal against conviction. Continue reading
The High Court has dismissed an appeal against a decision of the Supreme Court of South Australia on the offence of persistent sexual exploitation of a child. The appellant was tried under s 50 of the Criminal Law Consolidation Act 1935 (SA) of ‘persistent sexual exploitation of a child’, defined as committing more than one act of sexual exploitation over a period of not less than three days, where an act of sexual exploitation means an act that could be subject of a sexual offence charge. After a trial by judge alone, the trial judge held that the general nature of the complainant’s evidence meant that it was not possible to identify two or more specific proven sexual offences, and thus there was no case to answer. The SASCFC allowed a Crown appeal against that decision and remitted the matter for retrial. Before the High Court, the appellant contended that the SASCFC erred in concluding there was a case to answer, and erred in not addressing the appellant’s argument that the Crown should not have been granted permission to appeal owing to the Court’s failure to consider the appellant’s arguments on double jeopardy concerns.
The High Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) unanimously dismissed both arguments and the appeal. The Court noted that the appellant’s contention on the operation of s 50 was that the provision did not alter or ameliorate the requirement that the prosecution must prove each ‘distinct occasion’ Continue reading
The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the adequacy of jury directions in a murder trial. The respondent and his partner attacked a former employer, intending to ‘teach him a lesson’, which ended in the death of the employer caused either by the respondent choking him or sitting on his back. After rejecting the respondent’s contentions on the adequacy of jury directions on intention and cause of death, the VSCA accepted the argument that the trial judge’s statement to the jury that the prosecution ‘has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt’ was in error, given the High Court’s prohibition on directions on the meaning of reasonable doubt. Before the High Court, the Crown contended that while the trial judge had strayed from the traditional formulation by contrasting reasonable doubt with ‘any doubt’, it was not an error to do so, and, in any case, had not produced any substantial miscarriage of justice.
The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ) allowed the appeal, holding that while it is generally ‘undesirable’ for a trial judge to contrast reasonable doubt with ‘proof beyond any doubt’, it was not an error to do so in the circumstances of this case (at ). After noting historical changes in understandings of the expression ‘reasonable doubt’ among the general population (at ff), the Court stated that today there may be reasonably differing views on whether it is well-understood: while popular media makes frequent use of it, trial judges appear to be frequently asked to define ‘reasonable doubt’ or Continue reading
The High Court has dismissed two appeals against a decision of the Full Federal Court on the refugee protection criteria applicable to persons who would face detention for unlawfully leaving their country of origin if returned. SZTAL and SZTGM, both Sri Lankans, arrived in Australia and applied for protection visas under the ‘complementary protection regime’. Under s 36(2)(aa), one criteria of granting that application is that the Minister has substantial grounds for believing that, if the applicant were returned, there is a real risk that they will suffer significant harm, including ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’. Under the definition in s 5, these must, respectively, be ‘intentionally inflicted’ and ‘intended to cause’ extreme humiliation. The Minister rejected the applications.
The Refugee Review Tribunal found that, if returned to Sri Lanka, the appellants would be arrested, charged and detained for leaving the country illegally, and would be held in prisons that may not meet international standards. The RRT concluded that the requirement of ‘intention’ was not satisfied: the poor conditions were due to a lack of resources, rather than an intention to inflect cruel, Continue reading
The High Court has dismissed an appeal against a decision of the ACT Court of Appeal on incitement to procure a third person to commit a criminal offence. The respondent was in custody awaiting prosecution when he asked a fellow prisoner to arrange for a third person, outside the prison, to kidnap two potential witnesses, convince them to adopt an exculpatory statement the respondent had written, and then kill them. The other prisoner did not go through with the plan and instead reported the respondent, who was then convicted on charges of attempting to pervert the course of justice (contrary to ss 44 and 713(1) of the Criminal Code 2002 (ACT)) and incitement to kidnap (contrary to s 47 of the Code and s 38 of the Crimes Act). On appeal, the ACTCA unanimously upheld the respondent’s conviction on the perversion of justice count, but set aside the convictions on the incitement to kidnap charges; Murrell CJ held that a person cannot be charged with inciting someone to procure a third person to commit a crime, and Wigney J held that such a charge was possible, but requires that the crime is actually committed. At issue before the High Court was whether incitement to procure a substantive offence was an offence under the Code; and whether Continue reading
The High Court has determined a special case on the validity of ss 501(3) and 503A(2) of the Migration Act 1958 (Cth). Section 501(3) provides that the Minister may cancel a visa where its holder does not pass the ‘character test’ — which may occur where, among other things, the person has a substantial criminal record, or the Minister reasonably suspects the person is associated with an organisation involved in criminal conduct — and where the visa cancellation would be in the ‘national interest’. Section 503A requires that the Minister divulge or communicate information to a court or tribunal that is reviewing a purported exercise of the character test-cancellation power. The plaintiff and applicant were both New Zealand citizens resident in Australia who held Class TY Subclass 444 Special Category (Temporary) Visas. In each case, the Minister issued them with a decision to cancel the visa, purportedly made under s 501(3), on the basis that they were members of the Rebels Outlaw Motorcycle Gang, which had been involved in criminal conduct, and noted that in making the decision the Minister had considered information that was protected from disclosure to them under s 503A, but with no further details beyond that.
The first question in the special case agreed by the parties requested that the High Court determine
whether either or both of ss 501(3) and 503A(2) of the Act Continue reading
The High Court’s current rectification works at its Canberra headquarters are said to be urgent, but foreseen. The Court could not have foreseen that they would coincide with a series of urgent, high profile cases that may determine the future of the present government. This week’s hearing into the legality of the same-sex marriage postal poll takes place in premises that have never before held a major hearing and are ill-suited to housing so many judges and barristers, let alone journalists and interested members of the public. The Court’s current Melbourne home, on Level 17 of the Commonwealth Courts building above Flagstaff Station, has just a single modest sized courtroom designed for special leave applications, and an even more modest lobby. The Federal Court warns its users:
It is anticipated that there will be delays through security screening at Commonwealth Law Courts building in Melbourne over the next few days. This is due to the High Court sitting in Melbourne over September and the expected increase in visitor numbers to the building. Please allow extra time for screening ahead of your court event.
The High Court’s contribution is to permit its hearing to be ‘broadcast to‘ a second courtroom on Level 8 of the same building, one usually used for Federal Court hearings (and the odd lecture.)
This isn’t a first – the Court has previously had overflow facilities for high profile cases such as the Gerard Baden-Clay appeal in Brisbane. An apparent first is the Court’s permission for live tweeting to occur in the overflow room, presumably because there is no possibility of the arguments being interrupted by a ringing phone. Video and audio recordings, and photographs, remain forbidden.
This week’s hearing is also a significant event in the history of the Court, Continue reading