Monthly Archives: April 2018

News: Agreement in the High Court

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Last week, the High Court published two unanimous judgments and announced a third, bringing its total of unanimous decisions so far this year to 15, out of 17 to date. At this early stage, the Court is tracking ahead of its past rates of unanimous assent in orders.* On my count of the last five years (since Gummow and Heydon JJ left the bench and Gageler and Keane JJ joined), the Court’s judges unanimously asesnted to the court’s orders in 75% (2013), 76% (2014), 81% (2015), 76% (2016) and 67% (2017) of three-or-more judge cases.This average unanimity rate of 76% over the past five years is – according to data compiled and generously supplied to me by regular blog commenter Matan Goldblatt – well ahead of earlier multi-year periods where unanimous orders made up 67% (2007-2012),  54% (2003-2007) and 61% (1998-2003) of High Court decisions. The backdrop (and possible explanation) of the current institutional unanimity rate is each judge’s personal rate of assenting to the Court’s order. From 2013, my count of those rates is: French CJ: 95.5%; Hayne J: 91.9%; Crennan J: 94.8%; Kiefel J/CJ: 97.7%; Bell J: 96.7%; Gageler J: 87.0%; Keane J: 97.1%; Nettle J: 91.1%; Gordon J: 90.0%; and Edelman J: 88.9%.

These figures show that the current court is characterised, not just by its lack of ‘Great Dissenters’ – Gageler J’s outlier of 87% is barely comparable to the likes of Kirby J (around 60%, dropping to 52% in 2006) and Heydon J (55% in his final year) – but perhaps especially by its run of ‘Great Assenters’ Continue reading →

News: Leave granted in three criminal cases

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The April sittings saw the High Court rejecting all of the special leave matters heard on the papers, including Valve’s high profile argument that its Steam gaming platform is not subject to the Australian Consumer Law. But the Court granted half of the (six) matters it heard orally on Friday, all criminal appeals, including one on the topical question of how to establish whether or not cannabis found at someone’s home was harvested from two plants.

The three cases that the Court will visit on appeal are: Continue reading →

Plaintiff M174/2016 v Minister for Immigration and Border Protection

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The High Court has decided a special case on ‘fast track reviewable’ refugee visa decisions in Pt 7AA of the Migration Act 1958 (Cth) and the operation of s 57(2). Section 57(2) provides that, in considering a visa application, the Minister must give particulars of ‘relevant information’ to the applicant in a way that the Minister considers is appropriate in the circumstances; ensure, as far as is reasonably practicable, that the applicant understands why that information is relevant; and invite the applicant to comment on it. Pt 7AA provides the structure for fast track review, which requires that ‘fast track reviewable’ decisions by the Minister be automatically reviewed by the Immigration Assessment Authority to affirm the decision or remit it for further consideration.

The plaintiff, an Iranian citizen, applied for a temporary protection visa on the basis that he was a Christian and would face a real chance of harm if returned to Iran, and became a ‘fast track applicant’ (see at [54]). In support of this application, he stated that he regularly attended a Melbourne church, and submitted a letter of support from the Reverend of that church (at [55]). With the plaintiff’s consent, the Minister’s delegate contacted the Reverend, who mentioned that he attended the church only irregularly: the delegate did not share the file note mentioning this response with the plaintiff or invite any comment on the regularity of his attendance (at [57]). The delegate’s refused to grant a temporary protection on the basis that he had not genuinely converted to Christianity and would not face persecution on return to Iran, based partly on Reverend’s information about church attendance (see [59]ff).

On review, the Authority considered the Reverend’s information and affirmed the delegate’s decision, though it rejected the delegate’s conclusion that the plaintiff had attended the church solely to strengthen his refugee claim, and instead found that he attended church because he enjoyed social contact, not because of any real commitment to Christianity (at [63]). In coming to that conclusion, the Authority did not interview the plaintiff or his ‘supporters’ Continue reading →

Burns v Corbett; Burns v Gaynor; A-G (NSW) v Burns; A-G (NSW) v Burns [No 2]; NSW v Burns

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The High Court has dismissed five appeals stemming from to a decision of the NSW Court of Appeal on anti-discrimination complaints made across State borders. Burns, a resident of NSW and an anti-discrimination campaigner, made complaints to the Anti-Discrimination Board of the NSW Civil and Administrative Tribunal about statements made by Corbett and Gaynor, who were, respectively, residents of Victoria and Queensland. At issue there was whether ss 28(2)(a) and (c), 29(1) and 32 of the Civil and Administrative Tribunal Act (NSW) (the NCAT Act), which lay out the general and appellate jurisdiction of NCAT, gave NCAT jurisdiction to hear cases between residents of different states (known as ‘diversity matters’). Hearing the various appeals stemming from these matters together, the NSWCA held that the NCAT had no diversity jurisdiction, and that only State courts, and not Tribunals, could hear such complaints under the High Court’s diversity jurisdiction.

The High Court unanimously dismissed the appeals. Four judges (Kiefel CJ, Bell and Keane JJ and Gageler J) held that the Constitution contains an implied limitation that prevents State parliaments from conferring diversity jurisdiction on State tribunals.

The Joint Judges (Kiefel CJ, Bell and Keane JJ)

Kiefel CJ, Bell and Keane JJ began by laying out the appeal as raising two issues: whether the Commonwealth Constitution precludes State parliaments from conferring jurisdiction in diversity matters on a tribunal that is not one of the ‘courts of the States’ referred to in s 77 (the ‘implication’ issue); and, if it does not, whether a State law purporting to do so is inoperative by virtue of s 109 of the Constitution, as inconsistent with a federal law covering the same issue, here, s 39 of the Judiciary Act 1903 (Cth) (the ‘inconsistency’ issue). The joint judges held held that the implication issue should be resolved affirmatively, and thus it was unnecessary to resolve the inconsistency issue (at [5], and see [4] on the distinctness of the issues). For the joint judges, the text, Continue reading →

WET044 v Republic of Nauru

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The High Court has dismissed an appeal from a decision of the Supreme Court of Nauru on the denial of procedural fairness and the consideration of country information in a refugee status determination. The appellant, an Iranian of Faili Kurdish ethnicity, arrived on Christmas Island in 2013 and was transferred to Nauru, where he applied for refugee status under Nauru’s Refugees Convention Act 2012 (Nr). The Secretary of the Department of Justice and Border Control refused that application: that decision was affirmed by the Refugee Status Review Tribunal. Before the High Court, the appellant contended that the Tribunal erred in failing to deal with the country information he provided, specifically, that if returned to Iran as a failed asylum seeker, he risked being imputed with political opinions for which he would be persecuted. The appellant also sough to amend his notice of appeal to include a second ground of denial of procedural unfairness in not putting to him the nature of the country information it did rely upon in considering whether he might suffer persecution on the grounds of ethnicity (at [7]: neither ground was raised before the NRSC).

The High Court rejected both grounds as being without merit and dismissed the appeal. Regarding the first ground, the Court noted that the Tribunal had received and considered the appellant’s information (at [10]), that it did not seem to have ignored it, but that, in any case, much of that information did not require the Tribunal’s comment: Continue reading →

News: High Court’s Nauru jurisdiction silently disappears

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Nearly four weeks ago, on Tuesday 13th March, the High Court’s jurisdiction apparently shrank. We know this because the media has reported that the High Court registry informed parties to a criminal matter in Nauru (which had previously reached the High Court last October) that:

The agreement between Australia and Nauru that gave the High Court of Australia jurisdiction was terminated as at 13/3/18.

The agreement in question is a treaty between the governments of Australia and Nauru signed in 1976, around six years after Nauru’s independence from Australia. Article 1  of the treaty states that ‘appeals are to lie to the High Court of Australia from the Supreme Court of Nauru’ in some cases. Article 6.1 provides that ‘this Agreement shall continue in force until the expiration of the ninetieth day after the day on which either Government has given to the other Government notice in writing of its desire to terminate this Agreement’. So, presumably, one government gave the other notice on or about Wednesday 13th December 2017, which happens to be the date of the High Court’s most recent judgment on Nauru law (ruling that Nauru’s immigration authorities denied procedural fairness to an asylum seeker transferred to Nauru in 2013.) Continue reading →

Drug Law is Bad, M’Kay?: Kalbasi v Western Australia

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So, first of all, smokin’s bad. You shouldn’t smoke. And uh, alcohol is bad, you shouldn’t drink alcohol. And as for drugs, well, drugs are bad, you shouldn’t do drugs. M’kay, that about wraps up my introduction, now are there any questions? Yes, Stan?

The many problems of drugs — and of the ‘war on drugs’ — are well known. This post concerns a less discussed drug problem: the criminal law of drugs. No-one has adequately solved the legal puzzle of how to prohibit the market in bags of powder — in particular, how to reliably and fairly connect identifiable people to those bags of powder,

The criminal law of drugs is bad. Even the simplest drug situations routinely raise vast problems for police, lawyers and judges. The common scenario of someone flying into an airport with a suitcase lined with drugs prompted Australia’s most important — and its most difficult — High Court case on the criminal law. A person’s criminal responsibility (or lack of responsibility) for what is in her luggage continues to be fine-tuned three decades later, including in two High Court cases last year.

Last month, the High Court’s judges split four to three on another, recurrent drug law puzzle: proving who is responsible for drugs sent unaccompanied in the mail. The complex appeal in Kalbasi v Western Australia [2018] HCA 7 is an object lesson, not only in how very difficult it is for police to net the biggest players, but also how Australian courts can punish someone for being a Mr Big without ever affording him a fair trial before a jury.
Continue reading →