DWN042 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on procedural fairness and the conduct of appeals. The appellant, a Pakistani asylum seeker, was denied refugee status and complementary protection by the Nauruan Secretary of the Department of Justice and Border Control. On appealing that determination to the Nauruan Refugee Status Review Tribunal, the Tribunal affirmed the Secretary’s decision and concluded that the appellant’s submitted materials did not support his narrative that he had been targeted by the Taliban and would be targeted if returned to Pakistan. The appellant then appealed to the Supreme Court of Nauru, and gained legal representation only the day before his hearing.

On the morning of the hearing, he filed an amended notice of appeal that raised four grounds of appeal, including that the Tribunal acted contrary to the principles of natural justice in hearing his appeal while he was detained unlawfully in breach of the Nauruan Constitution (see details at [4]). Judge Khan struck out the two grounds relating to natural justice on the basis that his Honour lacked jurisdiction to consider them ‘apparently because (i) the two grounds involved the interpretation and effect of the Constitution of Nauru so that under s 45(a) of the Appeals Act 1972 (Nr) there could be no appeal to the High Court of Australia from his decision on these grounds, and (ii) the Refugees Act was Continue reading

Regional Express Holdings Ltd v Australian Federation of Air Pilots

The High Court has dismissed an appeal against a decision of the Full Federal Court on the standing of employee organisations to allege breaches of the Fair Work Act 2009 (Cth). Section 540(6)(b)(ii) provides that an industrial association can apply for an order relating to a breach if that association is ‘entitled to represent the industrial interests’ of the person affected by the breach. The appellant airline instructed its cadet pilots that if they insisted on their right to accommodation contained in the enterprise agreement they would not be given a position of command. The respondent association alleged that this breached various provisions of the Fair Work Act, and the appellant disputed the association’s status as representing the cadet pilots because none of those pilots were members. The FCAFC held that although the pilots were not in fact members, they were eligible for membership, and thus the respondent was ‘entitled to represent’ their industrial interests.

The High Court (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) unanimously dismissed the appeal, holding that where a person is eligible for membership of an industrial organisation, that organisation’s entitlement ‘to represent the industrial interests of the person’ can be sufficiently shown by its registration under the Fair Work (Registered Organisations) Act 2009 (Cth). After reviewing the legislative provisions, facts and proceedings below (at [2]ff), the Court noted that because the Continue reading

News: The High Court’s summer homework

A month or so after the last federal election, the judges of the High Court decided that the High Court’s ‘summer recess begins on Saturday 16 December 2017.’ A year later, the current judges settled on ‘Monday 5 February 2018’ as the Court’s first sitting day for next year. The dates in between are the summer holiday for the High Court (and its bar), a tradition not limited to Australia’s apex court. US Chief Justice John Roberts, in his previous role as a counsel in the Reagan Government, criticised the Court he would later lead for sitting too few weeks to handle its workload, writing ”it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off’ and semi-joking: ‘we know that the Constitution is safe for the summer’.

It turns out that the Australian Constitution is not so safe for this coming summer. Continue reading

Esso Australia Pty Ltd v Australian Workers’ Union; Australian Workers’ Union v Esso Australia Pty Ltd

The High Court has allowed an appeal and dismissed a second appeal against a decision of the Full Federal Court on protected industrial action and enterprise agreements. During negotiations over a new enterprise bargaining agreement between Esso and the AWU for employees of offshore gas platforms, onshore processing plants, and a marine terminal, AWU organised various forms of industrial action in support of its claims (at [13]ff). AWU claimed that each form of industrial action was protected under s 408(a) of the Fair Work Act (Cth), and Esso claimed some forms of purportedly protected action — relating to bans on equipment performance testing, air freeing and leak testing (which the AWU claimed was ‘de-isolation of equipment’) — were not protected. The Fair Work Commission granted Esso’s application for an order requiring the AWU to stop the organisation of bans on equipment testing, air freeing and leak testing, and in contravention of that order the AWU continued to organise that action. Section 413(5) provides that employees and bargaining representatives must not contravene any orders that apply to them and ‘relate to, or relate to industrial action relating to’ an agreement or a matter that arose during bargaining. Sections 343 and 348 prohibits the coercing others to exercise or not exercise workplace rights or engage in industrial action. Esso claimed the AWU had contravened s 413(5) in ignoring the order, and contravened ss 343 and 348 by organising action to coerce Esso to agree to the AWU’s terms. A majority of the FCAFC upheld the primary judge’s decision to not grant Esso’s s 413(5) declaration on the basis that s 413(5) must relate to an order that is current and operative at the time of protected industrial action. The majority also upheld the primary judge’s conclusion that the AWU had contravened ss 343 and 348, dismissing the AWU’s contention that it believed the action to be lawful and therefore could not be coercive.

A majority of High Court allowed Esso’s appeal (Kiefel CJ, Keane, Nettle and Edelman JJ, Gageler J dissenting) and the Court unanimously dismissed the AWU’s appeal. Dealing Esso’s appeal first, the majority first reviewed the lower court decisions (at [18]ff) and the parties’ contentions before the Court (at [23]ff), before turning to the construction of s 413. Because s 413(5) is ‘poorly drafted’, Continue reading

Aldi Foods Pty Ltd v Shop, Distributive and Allied Employees Association

The High Court has partly allowed an appeal against a decision of the Full Federal Court on the regional coverage of enterprise agreements and the operation of the ‘better off overall test’. ALDI offered seventeen employees currently working in ALDI stores around Australia positions in a new ‘region’ of operations in South Australia. A majority of these employees voted to approve an enterprise agreement with ALDI. The appellant unions, who were not involved in the making of this agreement, challenged it before the Fair Work Commission on the basis that it should have been a ‘greenfields agreement’ under pt 2-4 of the Fair Work Act 2009 (Cth), and that it did not pass the ‘better off overall test’ (‘BOOT’). The Fair Work Commission disagreed, ruling that the agreement was valid, and this ruling was upheld by the Full Bench. A majority of the FCAFC allowed an appeal against the Full Bench’s decision, holding that the agreement was not valid because it did not meet the requirement in s 186 that it be ‘genuinely agreed to’ because at the time of the vote the region had no employees at the time. The FCAFC also held that the FWCFB erred in applying the BOOT test.

The Court (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ, Gageler J agreeing) partly allowed the appeal, holding that the FCAFC erred in its holding on the coverage issue, but was correct in its view of the BOOT issue (at [4]). (Consequently, it was not necessary to determine the issues relating to jurisdictional error or the applicability of certiorari: at [4], and see [1] and [2].) Continue reading

Re Canavan; Re Joyce; Re Ludlam; Re Nash; Re Roberts; Re Waters; Re Xenophon

The High Court, sitting as the Court of Disputed Returns, has decided a special case referred to it by the Senate and the House of Representatives on the question of eligibility of six Senators and one MP under s 44(i) of the Constitution: Senators Matthew Canavan, Malcolm Roberts, Fiona Nash, and Nick Xenophon, the Hon Barnaby Joyce MP, and Scott Ludlam and Larissa Waters (former Senators who resigned on discovering that they may have been ineligible). In each case, material had emerged that these representatives held dual citizenship at the time that they were nominated for election. The Court permitted former MP Tony Windsor to appear as a party to the Joyce matter, and also permitted an amicus curiae to appear as contradictor in the matters of Canavan, Nash and Xenophon (on both, see at [7]).

Section 44(i) of the Australian Constitution provides that any person who

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.

On 22 September 2017, Keane J delivered a judgment on the evidence relating to Senator Malcolm Roberts’ s 44(i) matter, evaluating what Senator Roberts knew about his citizenship status at the time of his nomination and the steps he took to verify and renounce it before that nomination, and holding that he was a UK citizen prior to his recent renunciation (see below).

On 27 October 2017, the Court unanimously held that Senators Canavan and Xenophon were eligible at the time of their nomination, and that Ludlam, Waters, and Joyce, and Senators Roberts and Nash were ineligible at the time of their nomination.

Construction of s 44(i) (at [13]–[73])

After restating the text of s 44(i), emphasising that the phrase ‘shall be incapable of being chosen’ relates to the electoral process, of which nomination is a central part, and noting that s 44(i) focuses on the time between that nomination and the completion of the electoral process (at [1]–[3]), the Court recounted the chronology of the referrals and proceedings (see [4]ff). Turning to the different approaches to construing s 44(i), the Court noted (at [13]) that of the various competing submissions, only those made by the amicus contradictors and on behalf of Windsor gave s 44(i) Continue reading

Thorn in the Side of Prenuptial Agreements? Thorne v Kennedy

By Katy Barnett

Thorne v Kennedy Case Page

In Thorne v Kennedy, the High Court unanimously struck down both a prenuptial and a postnuptial agreement (the plurality on the basis of undue influence and unconscionable conduct, and Nettle J and Gordon J on the basis of unconscionable conduct alone). The agreements had been entered into by a impoverished 36-year-old woman from overseas (known by the pseudonym ‘Ms Thorne’) who married a 67-year-old wealthy Australian property developer (known by the pseudonym ‘Mr Kennedy’). Prior to and after the wedding, Ms Thorne agreed that she would have very little claim on Mr Kennedy’s assets (worth between $18 million and $24 million) if her relationship with her husband broke down because he wanted his money to be kept for his three children from his first marriage. Ms Thorne’s English was poor; she had no assets; she was desperate to have a child; her Australian visa was about to expire, and she would not be able to get a new visa without her marriage; and Mr Kennedy asked her to sign the prenuptial agreement four days before the wedding, when all her family had come to Australia from her home country to attend. She was told that if she did not sign the wedding would not go ahead and the relationship would end, and so she signed the agreement. This was despite the fact that the independent solicitor whom Mr Kennedy arranged to advise Ms Thorne implored her not to sign it and pronounced it the worst agreement she had ever seen. Pursuant to the prenuptial agreement, Ms Thorne was obliged to sign a postnuptial agreement in the same terms, which she did, although the independent solicitor again advised her not to. Ms Thorne and Mr Kennedy divorced just under four years later.

Some have argued that this signals the death-knell to ‘binding financial agreements’ under pt VIIIA of the Family Law Act 1975 (Cth) (eg, here) because there will almost never be equality between partners, whereas others (eg, here and here) argue that binding financial agreements will still be viable, but care must be taken with the circumstances of entry into such agreements. Continue reading