Apologies to all readers for the strange display issues. This change happened automatically a few days ago, and seem to be part of either a WordPress or University of Melbourne blog platform update that we were not told about, and did not approve. Unfortunately due to the University’s platform restrictions we also cannot manually change the theme at the moment. We are aware that the page is not functioning properly and is not easy to read, and that the pictures of cacti don’t make a lot of sense. Rest assured we hope to fix this and revert to the old theme shortly.
Monthly Archives: October 2017
The Mikado in the Constitution: Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon  HCA 45
Mikado. Ha! ha! ha! I forget the punishment for compassing the death of the Heir Apparent.
Ko-Ko, Pooh-Bah & Pitti-Sing. Punishment.
Mikado. Yes. Something lingering, with boiling oil in it, I fancy. Something of that sort. I think boiling oil occurs in it, but I’m not sure. I know it’s something humorous, but lingering, with either boiling oil or melted lead. Come, come, don’t fret — I’m not a bit angry.
Ko-Ko. If your Majesty will accept our assurance, we had no idea—
Mikado. Of course —
Pitti-Sing. I knew nothing about it.
Pooh-Bah. I wasn’t there.
Mikado. That’s the pathetic part of it. Unfortunately, the fool of an Act says “compassing the death of the Heir Apparent.” There’s not a word about a mistake —
Gilbert & Sullivan’s Mikado is a staple of both amateur theatres and Australian criminal law classes. Law lecturers routinely quote it (or, in some unlucky classes, sing it) to students because it illustrates a common problem in statutes: drafters’ penchant to ignore people’s minds when they devise rules of behaviour.
A case in point is s44(i) of Australia’s federal Constitution. Most constitutional provisions are about institutional, not individual, behaviour. But s44(i), which determines when otherwise eligible people are disqualified from Australia’s federal parliament, states:
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; … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
This provision duly identifies a situation the drafters wanted to avoid – a person with certain status in a foreign country in a position of (legislative) power in Australia – but says nothing at all about what (if anything) is going on inside the mind of that person.
Ko-Ko, Pitti-Sing & Pooh-Bah. No!
Mikado. Or not knowing —
Mikado. Or having no notion —
Mikado. Or not being there —
Mikado. There should be, of course —
Ko-Ko, Pitti-Sing & Pooh-Bah. Yes!
Mikado. But there isn’t.
Ko-Ko, Pitti-Sing & Pooh-Bah. Oh!
Mikado. That’s the slovenly way in which these Acts are always drawn. However, cheer up, it’ll be all right. I’ll have it altered next session.
The central holding of Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon  HCA 45 is that s44(i) means exactly what it says and what it doesn’t say:
Section 44(i) does not say that it operates only if the candidate knows of the disqualifying circumstance. It is a substantial departure from the ordinary and natural meaning of the text of the second limb to understand it as commencing: “Any person who: (i) … knows that he or she is a subject or a citizen …”
The High Court unanimously rejected suggestions from the parties to the seven references before it that it read requirements of voluntariness (the Attorney-General’s suggestion), wilfulness (ex-MP Barnaby Joyce’s) or constructive knowledge (the Green ex-Senators’) into s44(i).
So much, so constitutional, you may say. But reading in words (aka ‘implications’) into constitutional provisions is very standard constitutional fare. Implications were the entire basis of the High Court’s decision landmark decision a week before the Citizenship 7 case, striking down some Tasmanian anti-protest laws. As well, given that s44(i)’s accepted purpose is to avoid an MP’s dreaded ‘split allegiance’ between Australia and some other nation, some sort of knowledge requirement (constructive, actual, whatever) of that foreign link would make a lot of sense.
The case for reading in a mental requirement into s44 is especially strong because the provision doubles up as something close to a criminal offence, complete with its own (initial) penalty provision:
46 Penalty for sitting when disqualified Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.
As all criminal law students learn, Australian courts routinely read mens rea requirements into criminal offence provisions, applying either general criminal codes (often based on one drafted by Samuel Griffith, one of the Constitution’s drafters) or a detailed system set down by the High Court itself in a 1985 drug offence decision. So, Australian criminal law lecturers use The Mikado to illustrate exactly how criminal offences aren’t interpreted by Australian courts.
The High Court has now unanimously ruled that The Mikado is good law when it comes to s44. Continue reading
News: UK Supreme Court aligns with Australian High Court on criminal dishonesty
The United Kingdom’s Supreme Court is not shy about changing course on major legal issues, such as complicity law and (just last week) state immunity. On Wednesday, it dropped another criminal law bombshell. The case in question was a civil dispute between a champion poker player, Phil Ivey, and a London casino, on whether Ivey was entitled to 7.7 million pounds he seemingly won at Baccarat over two days. The issue was whether Ivey’s method, which included tricking the croupier into turning particular cards around and then making plays by relying on his ability to tell which cards had been turned from the pattern on their back, was cheating. The Court upheld lower court rulings in favour of the casino, surprising those who thought it took the case to hold that Ivey’s (undisputed) belief that his play was an honest ‘advantage’ one meant that he was no cheat . Instead, the Court not only found for the casino, but overturned the 1982 Court of Appeal decision, R v Ghosh, that held that criminal dishonesty requires proof that the defendant knew others would regard his or her actions as dishonest. The Supreme Cuurt’s ruling not only reversed thirty-five years of English theft and fraud law, but also seemingly left Ivey to prosecution for criminal cheating (not that any such prosecution is on the cards.)
While Ghosh‘s many fans in the academy are currently working their way through the five stages of grief, some Australian High Court judges may be feeling quite different emotions. Continue reading
News: Six new High Court cases
At last Friday’s oral special leave hearings, it was easier to ask which cases didn’t get special leave. There were just two and they were both quite interesting – a NSW decision upholding a high-interest short-term loan (now $670K plus $2.4M interest!) even though the lender (correctly) believed that the borrower had fallen for a Nigerian fraud scam; and a Victorian holding that a pregnancy the military failed to detect is not a ‘service injury’ (and therefore is not limited by a statutory military compensation scheme.)
The five new appeals that made the grade were: Continue reading
BRF038 v Republic of Nauru
The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on when discrimination amounts to persecution and procedural fairness guarantees under Nauruan refugee law. The appellant, a Sunni Muslim, fled Somalia in 2006, then stayed in Yemen, and finally arrived by boat at Christmas Island in September 2013. Australian authorities transferred him to the Republic of Nauru, where he sought refugee status. During his processing, he claimed that he fled Somalia due to war, trouble, hunger and starvation, and later fled Yemen due to racism and a lack of security (see details at –). The Nauruan Secretary refused his application for refugee status on the basis of scepticism about parts of his account (see ), and the Nauruan Refugee Status Review Tribunal and Nauruan Supreme Court both upheld that determination. On appeal to the High Court, the appellant contended that the Tribunal failed to accord him procedural fairness in reviewing the Secretary’s determination.
The Court (Keane, Nettle and Edelman JJ) allowed the appeal, ordering that the Tribunal’s decision be quashed and the matter remitted Continue reading
Brown v Tasmania
The High Court has determined a special case on Tasmanian forestry protest laws and the implied freedom of political communication, holding that the central anti-protest provisions of the challenged legislation were invalid because they impermissibly burdened the freedom of political communication implied in the Commonwealth Constitution.
The Workplaces (Protection from Protesters) Act 2014 (Tas) contains a range of provisions that prohibit persons from engaging in protest activities. Section 4 defines protest activities as activities taking place on a business premises or an ‘access area’ in relation to a business, that is ‘in furtherance of’ or ‘for the purposes of promoting awareness of or support for’ an ‘opinion, or belief’ about a ‘political, environmental, social, cultural or economic issue’. Business premises also include forestry land and land on which forestry operations are being carried out, and ‘access areas’ include the areas around and outside those premises. Section 6 provides that a protester must not enter or do an act on a business premises that prevents, hinders or obstructs the carrying on of a business activity. Section 6(4) makes it an offence to disobey a police officer’s order, made under s 11, to leave the premises, directed at a person that the officer reasonably believes has committed, is committing or is about to commit a contravention of s 6. Section 8(1) makes it an offence to re-enter an area near where that person received a s 11 direction to leave, within four days of receiving that direction. That area is not limited to the area in which the direction was issued: it extends to any area outside ‘forestry land’. Section 11 also contains police powers to direct groups to leave areas, and s 13 contains powers for police to make warrantless arrests for contraventions of the Act for specified purposes.
The plaintiffs were present in the Lapoinya Forest while forestry operations were being carried out there, and engaged in raising public and political awareness about the logging operations and voicing protests against it. They were arrested and charged under the Act for offences against s 8(1) and s 6(4), though the charges were ultimately not proceeded with and dismissed. Before the High Court, they challenged the validity of provisions of the Act noted above (ss 6, 8, 11, 13 and pt 4 of the Act). While the stated Special Case contained a first question on the standing of the plaintiffs to seek relief, the defendants conceded that the plaintiffs had standing and the question no longer needed to be answered (see , and see below for the full order).
The High Court held, by majority (Kiefel CJ, Bell and Keane JJ, Gageler J, Nettle J) that the impugned provisions did impermissibly burden the implied freedom of political communication and were thus invalid. Gordon J held that only s 8 was invalid, and Edelman J held the Act was valid in its entirety.
The Joint Judgment (Kiefel CJ, Bell and Keane JJ)
After reviewing the background to the matter, the history of the Act, and the impugned provisions (see –), the joint judges (Kiefel CJ, Bell and Keane JJ) turned to analyse the terms, operation and effect of the Protesters Act. The impugned provisions together had a significant deterrent effect on protestors, Continue reading
Koani v The Queen
The High Court has published its reasons for allowing an appeal against a decision of the Supreme Court of Queensland on whether an unwilled criminally negligent act combined with an intention to kill or cause grievous bodily harm constitutes murder under s 302(1)(a) of the Criminal Code 1899 (Qld). Following a breakdown in their relationship and during a violent confrontation in front of witnesses, the appellant loaded and aimed a shotgun at the deceased, saying ‘I don’t give a fuck, I’ll kill you … I’ll go back to jail’, which then discharged (see –).
The appellant pleaded guilty to manslaughter charges but claimed he was not guilty of murder; the prosecution declined to accept that plea and, following a jury trial, he was convicted of murder and sentenced to life imprisonment. During the trial, expert evidence established that shotgun had been altered, with the effect that it was prone to discharge ‘half-cocked’, that is, pulling the trigger 10mm, then letting it go, accidentally or intentionally. The prosecution’s main case was that the appellant discharged the gun deliberately, intending to kill the deceased. The alternative case was Continue reading
News: Dispute over submissions to High Court in a sentencing appeal
On 14th June this year, the High Court heard a Crown appeal against an incest sentence, an appeal that turns in part on a practice of Victoria’s Court of Appeal. Since 2007, the Victorian Court has sought submissions and made rulings on the topic of ‘current sentencing practices’ in particular classes of case, simultaneously with but separate from resolving particular sentencing appeals. A year ago, the Court of Appeal ruled that sentencing practices for incest were too low, but also dismissed a Crown appeal about a particular incest sentence. In his written submissions on appeal, Victoria’s Chief Crown Prosecutor said:
It is not apparent that any other State or Territory in Australia struggles with the question of consistency of sentencing in quite the manner experienced in Victoria. It is respectfully submitted that the correct role to be played by “current sentencing practices” should be decided. From what appears above, it might be said that there is not a united position in the Victorian Court of Appeal on the issue.
In the High Court hearing, he used sharper language, describing the Victorian approach as ‘inimical’ and ‘not permissible’. One exchange went like this:
KEANE J: But as I understand it, it seems to be said against you that the Director somehow accepted that there was this limit on the appeal and that the result is essentially something for which the Director is responsible.
MR SILBERT: Your Honour, this has been going on for something like 10 years. The Director has no option, when requested to make these submissions, but to make them. When the court refers to an uplift the Director cannot simply say, “I refuse to be involved in this uplift.” If the Director is lodging an appeal on the basis of manifest inadequacy he has to go along with it or else he has no basis for appealing. So it is a procedure that is imposed by the court and has been for something like 10 years. It has actually never been used by the Director effectively, I do not think, to produce any result in any concrete case.
There are dicta that emanate from various cases where the court considers this uplift and says well, sentencing is inadequate, and they have said it here, but they do not determine the dispute in issue between the parties. There is obiter, as referred to by Justice Ashley in Ashdown, that emanates from these discussions but they are more philosophical discussions than disputes between the Crown and an accused. The Crown is not complicit in the exercise – it did not invent the exercise – and it is dragged kicking and screaming into each one of these contests. I do not know whether that answers your Honour’s question.
KEANE J: It just does seem odd.
On Wednesday, the High Court unanimously upheld the DPP’s appeal, drawing on its recent ruling in Kilic (on the relevance of the maximum sentence) and holding that the decision to uphold a sentence that was based on then current, but wrong, sentencing practices, was ‘an error of principle’. Indeed, the plurality concluded that it ‘might’ be that the Court of Appeal’s practice ‘is inconsistent with [Victoria’s] Sentencing Act’.
The publication of the judgment coincided with the release by News Ltd of letters between Victoria’s then Chief Justice and Victoria’s Director of Public Prosecutions. Continue reading
DPP v Dalgliesh
The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on ‘ranges’ of sentences and the evaluation of current sentencing practice. The respondent plead guilty to four charges of incest and was cumulatively sentenced to five years and six months imprisonment. The sentence for charge one, which related to committing incest and impregnating his 13-year old stepdaughter, whose pregnancy was subsequently terminated, was three years and sixth months. The DPP appealed against both the sentence for charge one and the cumulative total imposed, contending that both were manifestly inadequate. While the VSCA noted that the sentence on charge one could be seen as lenient, and that the range was so low that it revealed an error in principle as being not proportionate to the objective seriousness of the offence or moral culpability of the offender here, the Court ultimately held that in light of what were the then current sentencing practices, it was within the range open to the sentencing judge, and that the Court of Appeal was constrained by those sentencing practices to dismiss the appeal.
The High Court unanimously allowed the appeal. The joint judges (Kiefel CJ, Bell and Keane JJ) held that the VSCA erred in treating a range of sentences established by current sentencing practice as decisive of the appeal (at ). After noting the sentencing Continue reading