Monthly Archives: August 2018

News: Challenge to Murray/Darling Royal Commission dropped

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When he isn’t penning legal advices for the ALP on the possible disqualification from parliament of prospective Prime Ministers, Bret Walker SC is currently in charge of the Murray/Darling Basin Royal Commission. Established by the previous government of South Australia in January this year, this state-based inquiry into a Commonwealth-administered scheme raises some difficult questions about the interaction between state investigations and the federal government. Unsurprisingly, this June saw a directions hearing on the question of whether or not Walker can apply his statutory powers (including powers to search premises, demand documents and jail non-compliant witnesses for contempt) to the Commonwealth and relevant federal entities and officers (and also interstate residents.)

Alas, for those who wanted to see these issues explored, and most likely for the Roysl Commission, the case of Commonwealth v Walker is no longer before the High Court. Continue reading →

HFM043 v Republic of Nauru

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The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the construction of derivative refugee status provisions. In September 2014 the Secretary of the Department of Justice and Border Control denied the appellant’s application for refugee status. In March 2015, the Nauruan Refugee Status Review Tribunal affirmed that decision, and the appellant appealed to the Supreme Court. In April 2016. the appellant married a man who had been recognised as a refugee. The appellant’s lawyers made an application for derivative refugee status on the basis of her dependency on her husband’s status, which was granted in August 2016, and for which she was granted a ‘Refugee Determination Record’ stating that the Secretary had determined the appellant was ‘recognised as a refugee’ (at [7]–[8]). In December 2016, the process for acquiring derivative status was changed, including s 31(5), which was deemed to have commenced in May 2014, and provided that ‘[a]n application made by a person under section 31(1)(a), that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time’.

In June 2017, the Supreme Court held that the Tribunal had made an error of law in failing to adjourn its hearing to allow the appellant to Continue reading →

Hossain v Minister for Immigration and Border Protection

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The High Court has dismissed an appeal against a decision of the Full Federal Court on jurisdictional error and errors of law in the context of partner visa applications. Hossain, a Bangladeshi citizen, was refused a partner visa on the basis that the criteria in the Migration Regulations 1994 (Cth) had not been met. The Administrative Appeals Tribunal affirmed that decision on its merits, ruling that Hossain had not met the requirements of submitting an application within 28 days of ceasing to hold a previous visa, unless the Minister was ‘satisfied that there are compelling reasons for not applying’ this requirement, and that he did not have outstanding debts to the Commonwealth. Hossain then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision (by which time he had met the debt payment criteria) on the basis of jurisdictional error. In those proceedings, the Minister conceded that the Tribunal had erred in addressing whether there were compelling reasons not to apply the timing criterion as at the time of the application for the visa: it should have examined whether those compelling reasons existed at the time of its own decision. The FCCA rejected the Minister’s contention that this was nonetheless not a jurisdictional error because the public debt criterion had still not been met. The FCAFC majority (Flick and Farrell JJ) agreed with the FCCA that the error was jurisdictional, but ultimately agreed with the Minister that this error had not removed the Tribunal’s authority to affirm the delegate’s decision (at [13]). Mortimer J, in dissent, also held that the error was jurisdictional, but concluded that because Hossain had repaid the debt, the public interest criterion would no longer be an issue for the Tribunal, and the relief he sought could be granted (see [14]ff).

The High Court (Kiefel CJ, Gageler and Keane JJ, Nettle J, Edelman J) unanimously dismissed the appeal. The joint judges held that the Tribunal’s error in relation to timing did not rise to the level of jurisdictional error. Edelman J (with whom Nettle J agreed), also held that the error was not jurisdictional because it was neither a fundamental error nor one that could have affected the Tribunal’s decision: the ‘lack of materiality’ meant the error was not jurisdictional.

After reviewing the facts and decisions below, the joint judges turned first to conceptual debates about the term ‘jurisdiction’ (see [17]–[19]), noting that the High Court in Kirk v Industrial Court (NSW) [2010] HCA 1 had picked up Jaffe’s emphasis on jurisdiction goes to the gravity of an organisational procedural error when it ‘express[ed] the constitutionally entrenched minimum content of the Continue reading →

DL v The Queen (NSW)

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The High Court has allowed an appeal involving an appellate court differing with findings of fact made by a sentencing judge. DL was convicted in 2008 of a 2005 murder involving the repeated stabbing of a teenager for no apparent motive. At his sentencing in 2008, the trial judge found that ‘there was much irrationality about what occurred’, that it was not established that DL intended to kill the teen and that he was probably acting under the influence of psychosis. Holding that the offence was less serious than the median range murder and that NSW law provided that 25 years was the standard non-parole period for a mid-range murder, he sentenced DL to a 17 year sentence with a 12 year non-parole period. At his appeal against sentence in 2016, all parties agreed that a subsequent High Court judgment disapproving of this use of standard non-parole periods meant that the Court of Criminal Appeal needed to resentence him, that subsequent sentencing law changes meant that the standard non-parole period no longer applied to him and that the Court’s resentencing could take account of new facts since the sentence. A majority of the Court of Criminal Appeal, observing that all parties had been given an opportunity to be heard on all aspects of the resentencing and finding that DL was not affected by psychosis and did intend to kill, dismissed the appeal, holding that no lesser sentence was warranted.

The joint judgment (Bell, Keane, Nettle, Gordon and Edelman JJ) unanimously allowed the appeal. The joint judgment (at [33]ff) held that the majority’s holding that all parties had been given the opportunity to be heard on resentencing was the result of two ‘misconceptions’: Continue reading →

The Queen v Falzon

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The High Court has allowed a Crown appeal concerning the prosecution’s use of evidence of large amounts of cash found at the defendant’s premises to support charges of trafficking cannabis. The defendant was charged with possessing and cultivating cannabis for sale at two properties. His defence was that the cannabis was for his personal use or for gifts to others. The prosecution presented evidence of $120,000 in cash hidden at his home address. The jury convicted him of cultivating cannabis for sale at one of the properties and possessing it for sale at another. However, his appeal to Victoria’s Court of Appeal was allowed on the basis that the cash could not be properly used to convict him, because (a) ‘insofar as the evidence of the possession of the cash was admitted on the basis that it was evidence of past trafficking, it was irrelevant and therefore inadmissible’ (VSCA at [146]) and (b) if it is relevant, ‘such probative value must be low, in circumstances where the risk of the misuse of the evidence is undoubtedly high.’ (VSCA at [148]). On further appeal to the High Court, the Court unanimously allowed the Crown’s appeal at the conclusion of the hearing, with reasons to follow.

The joint judgment (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ) reviewed lower court rulings on the use of cash as evidence in drug trafficking prosecutions (at [34]-[39]), commencing with a 1989 ruling by the Northern Territory Court of Appeal. The joint judgment observed that that ruling by an Australian intermediate court was not followed by other Australian intermediate courts and instead it was the dissenting ruling in that case that ‘has ultimately prevailed in subsequent authority’ (at [34]). Turning to the relevance of the cash in the case before it, the the joint judgment held that the trial judge’s and dissenting judge’s rulings that the cash was admissible was ‘plainly correct’ (at [40]). Continue reading →

News: Relief and reproach in the High Court

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The High Court’s return from its winter break includes a slight, but important, change in the Court’s sitting practice. Each of this week’s main sitting days has commenced at 10am, rather than the usual 10.15am. Chief Justice Kiefel explained the purpose of the early start yesterday:

The parties would be aware in accordance with the new trial practice we will be adjourning at 11.15 for 15 minutes.

While no explanation was given for the mid-morning adjournment, its utility is obvious. Perhaps coincidentally, the change follows an impromptu ‘short adjournment’ of six minutes during a June matter, after the defendant’s counsel, called on to address the court 102 minutes into the morning session, sought ‘the indulgence of the Court of a brief comfort break’.

Otherwise, however, yesterday’s Court was not in a generous mood.  Continue reading →

Federal Commissioner of Taxation v Thomas; Federal Commissioner of Taxation v Martin Andrew Pty Ltd; Federal Commissioner of Taxation v Thomas Nominees Pty Ltd; Federal Commissioner of Taxation v Thomas

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The High Court has allowed one appeal, partly allowed a second appeal, and dismissed two appeals from a decision of the Full Federal Court on the taxation of franked distributions from trusts. In 2006 to 2008, the trustee (Thomas Nominees Pty Ltd) of a trust (the Thomas Investment Trust), received franked distributions within the meaning of div 207. Division 207 of pt 3-6 of the Income Tax Assessment Act 1997 (Cth) lays out the tax implications of trust income that includes franked distributions. In those years, the trustee passed resolutions that sought to distribute the franking credits between the trust’s beneficiaries separately from, and in different proportions to, the income that comprised the franked distributions (see details at [20]ff). The trustee referred to this as the ‘Bifurcation Assumption’, and lodged tax returns on the basis that this was legally effective under div 207. In 2010, the Queensland Supreme Court issued ‘directions’ to the Trustee that those resolutions did give effect to the Bifurcation Assumption, and that this was legally effective under div 207.

Two of the beneficiaries (the taxpayers) filed appeals in the Federal Court under pt IVC of the Taxation Administration Act 1953 (Cth), arguing that the Bifurcation Assumption was not legally effective under div 207 (see at [34]ff). The central issue before the High Court was whether the FCAFC was bound by the directions given by the QSC and its holding that the Bifurcation Assumption was in line with div 207, and, if the FCAFC was not so bound, how div 207 should apply to the trustee’s resolutions.

The High Court (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ, and Gageler J) unanimously held that the FCAFC erred in holding that it was bound to follow the QSC ruling. The FCAFC ‘misunderstood and misapplied’ the central case on directions, Continue reading →

Minister for Immigration and Border Protection v SZVFW

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The High Court has allowed an appeal against a decision of the Full Federal Court on notification of hearing requirements in refugee application hearings and the task of appellate courts in reviewing decisions that are purportedly ‘legally unreasonable’. Under s 426A of the Migration Act 1958 (Cth), where an applicant is invited to appear before the Tribunal but does not do so, the Tribunal ‘may’ make a decision on the review without taking further action to enable the applicant’s appearance before it. After the Minister refused the respondents protection visa applications, the respondents filed an application for review by the Refugee Review Tribunal but did not respond to the Tribunal’s requests for more information or attend a scheduled hearing. The Tribunal’s communications were sent only by post, and not also by phone or email, even after the non-response from the respondents. The FCAFC held that the Tribunal acted unreasonably in failing to attempt to contact the respondents by phone or email. The FCAFC also held that the Minister had failed to show that the primary judge’s evaluation of that unreasonableness involved any appealable error of law or fact analogous to the error that must be established in relation to discretionary judgments, as described in House v The King [1936] HCA 40.

The High Court unanimously allowed the appeal in four judgments, holding that the House principles had no application in this appeal, that the Tribunal did not act unreasonably in failing to take further action to contact the respondents, and that the FCAFC should have so decided. Kiefel CJ, Gageler J and Edelman J each agreed with the orders proposed by Nettle and Gordon JJ.

Nettle and Gordon JJ held that the FCAFC’s approach and decision were incorrect: the ‘only question’ for the FCAFC and the High Court was whether the Tribunal’s exercise of its s 426A power was beyond its power for being legally unreasonable: it was not (at [76]). Turning first to the nature of the court’s task in assessing whether a decision is legally unreasonable, Continue reading →

News: The Court of Disputed Returns Returns

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It seems that the High Court’s extraordinary run of cases on the qualifications of federal MPs has ended at last, with no new referrals in (or likely to be added to) the pipeline. Nevertheless, the very first of this term’s thirteen referrals is now back before the High Court. Yesterday, Kiefel CJ heard an application from Rob Culleton to reopen his referral (which led to his disqualification) on the basis that the Senate lacked quorum when it sent his election to the Court of Disputed Returns. The relevant Hansard reads:

I just raise—and I may be out of order—that I spoke to Senator Culleton a few minutes ago and he indicated to me in very broad terms that he was looking at seeking leave to move an amendment. I wonder, out of fairness to him, if that is what he is still intending to do, whether we ought to draw attention to the state of the chamber. I just do not want to be seen as being unfair to Senator Culleton. I want to be fair to the man.
The PRESIDENT: Thank you, Senator Xenophon. You have drawn to my attention that he chamber may not be quorate, so we shall bring the bells. (Quorum formed)

(As it happens, both parties to this conversation, Senators Xenophon and Parry, were later the subject of their own referrals!) Apparently, parliamentary video shows that there were fewer than the required 19 senators present when the chamber voted to refer his position to the Court of Disputed Returns, some three minutes later.

So, what should the High Court do? Continue reading →