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 [10]–[15]). The Nauruan Secretary refused his application for refugee status on the basis of scepticism about parts of his account (see [16]), 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 [5], 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 [11]–[60]), 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 [3]–[7]).

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