Daily Archives: 20 March 2019

News: The Court and the Conferences

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Last week, the High Court spent the better part of four days on a single case, a challenge to Queensland’s ban on political donations by property developers. Such lengthy hearings no doubt impose all manner of burdens on the many judges and lawyers involved — all seven High Court justices and eight of Australia’s nine Solicitors-General (with only the Northern Territory’s Sonia Brownhill absent) together with the challenger’s counsel, Jeremy Kirk, not to mention the various associates, juniors and solicitors tending to each of them. Chief Justice Kiefel repeatedly indicated that ‘the Court would be assisted if it concluded around lunchtime on Friday.’ Her timetable was met, in no small part, because of her statement to Queensland’s Solicitor-General on the case’s third day:

Mr Solicitor, the Court will not require further submissions on whether the basis for or justification for the Queensland legislation is distinguishable from that in McCloy.

Half an hour later, he checked her meaning: ‘I take it your Honours want no submissions — your Honours are not looking for any submissions on the implied freedom at all?’ ‘That is correct’, Kiefel CJ confirmed. The argument that the political donations law breached the Constitution’s free speech rule was over, but the other arguments that the law breached the Constitution’s federalism rules remained.

When the law breaks so slow or so fast, spare a thought for the organisers of Australia’s constitutional law conferences. Continue reading →

Northern Territory v Griffiths (Deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples

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The High Court has allowed two appeals in part and dismissed one appeal from a decision of the Full Federal Court on compensation payable for the extinguishment of native title rights and interests.

Between 1980 and 1996, NT was responsible for 53 acts of granting tenures and constructing public works in the town of Timber Creek that were held to have impaired or extinguished native title rights and interests held by the Indigenous townspeople (the Claim Group). Pursuant to s 51 of the Native Title Act 1993 (Cth), the Claim Group’s compensation claim was framed as including: first, compensation for economic loss of native title rights to be determined as if each act were equivalent to the NT compulsorily acquiring a freehold estate in the land; secondly, compound interest on that loss from the date of assessment until judgment; and thirdly, compensation for loss or diminution of connection or traditional attachment to land, and the intangible disadvantages from lost rights to live on and gain spiritual and material sustenance from the land, as assessed at the time of trial (see at [11]). Mansfield J, at trial, assessed the compensation amount at $3.3 mil: $512,000 as 80 percent of the total freehold estate value, $1.4 million in simple interest, and a cultural loss of $1.3 million. The Full Court reduced the economic loss factor from 80 percent to 65 percent, but otherwise affirmed Mansfield J’s conclusions.

Before the High Court, the NT and Commonwealth contended that the FCAFC erred in assessing the economic loss at any more than 50 percent of the freehold value and erred in upholding the $1.3 million cultural loss (see [16], [17]). The Claim Group contended that the FCAFC erred in further reducing the freehold value to 65 per cent, that the economic loss should be the freehold value without any reduction at all, and that the Full Court also erred in upholding the interest on a simple, rather than compound, basis (at [15]).

The High Court unanimously allowed in part the NT and Commonwealth’s appeals, holding that the economic loss compensation should be reduced to 50 per cent of the freehold value of the land. The Court rejected the appellants’ arguments against the cultural loss amount, upholding the trial judge’s original determination of $1.3 million. The Court also dismissed the Claim Group’s arguments against any reduction, and on compound rather than simple interest. Continue reading →