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. The matter had been listed for a full court hearing on 9th October, but the case page on the Court website has now been shifted into the ‘decided cases’ list, and concludes with the following:
28/08/2018 Consent orders discontinuing proceedings
09/10/2018 Hearing (Full Court, Canberra) – VACATED
The terms of the consent orders (if any) are not available on the High Court website. The case’s apparent settlement could mean that the federal authorities have agreed to submit themselves to the Commission’s powers. Or they could mean that the Commission has agreed not to try to apply its powers. Or some intermediate position. Or that the issue will remain unresolved. Such premature ends to High Court cases are relatively rare, but have occurred in high profile matters, such as the Bell Group litigation and a 1996 test case on NSW abortion law.
As for why the parties in this case opted not to have the matter adjudicated, one clue is in the earlier directions hearings. In the June hearing, Keane J observed:
Obviously, the matter is one of urgency that deserves as much priority as the Court can give it. Just how much priority the Court can give it may depend upon the issues and when the matter can be ready for hearing. At the moment, September has been allocated, dates have been allocated for hearings and matters in September, but it is not beyond question that this matter might be able to be accommodated in the September sittings, although that will not be an easy matter.
Presumably because the work of the Commission will be partly or wholly delayed until the legal issues are resolved, The South Australian Solicitor-General confirmed that ‘obviously our preference to aim for a September listing, if it is possible’, Alas, in late July, Keane J told the parties:
Unfortunately, the matter cannot be accommodated, with the best will in the world, in September, so the matter will be referred to the Court in the October sittings. I am sorry, we just cannot do better than that.
[EDIT: see the comment below. Commissioner Walker explained on August 9 in a letter to the South Australian Attorney-General:
The date fixed for the Full Court hearing produces, I think, on my estimate of a reasonable timetable, the practical impossibility of enforcing summonses to the MDBA and Commonwealth. That is because of my duty to ensure procedural fairness, properly prepare for and take evidence from witnesses, deliver a report, and finalise the Commission’s work by 1 February 2019. In making this estimate, I have considered but not given much weight to the not unknown but rarely seen possibility of the High Court making orders immediately at the conclusion of a hearing. That is, I have assumed some time, perhaps very short indeed, for the Justices to consider the case before making orders, let alone delivering reasons.
Walker indicated that he would withdraw the summons, correctly predicting that it would render the proceedings moot. Later letters cover his (refused) request to have his reporting timeline extended in the event the High Court rejects the Commonwealth arguments.]
Instead, the Court will spend the first week of its September sittings for the first time in Darwin, hearing a native title compensation matter, while its second week is largely dominated by what is left of the Court’s Nauru case load. The early conclusion of Cth v Walker means that the Court now has some free time in its (yet to be published) October list, as the case was expected to last at least two days.