News: The Court and the Conferences

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. In February 2019, UNSW’s conference scheduled discussions of ‘recent cases’ that included the following:

  • Professor Anne Twomey, University of Sydney, Spending Caps on Third Party Campaigners in State Elections: Unions NSW v NSW (No 2)

  • Ms Frances Gordon, NSW Bar, Safe Access Zones Around Abortion Clinics and the Implied Freedom of Political Communication: Clubb v Edwards; Preston v Avery

  • Ms Houda Younan, NSW Bar, Concurrent Operation of Federal and Territory Laws and s 109 Inconsistency: Work Health Authority v Outback Ballooning Pty Ltd; Williams v Wreck Bay Aboriginal Community Council

  • Associate Professor Sean Brennan, UNSW, Just Terms for the Extinguishment and Impairment of Native Title: The Timber Creek Compensation Case

But the year began without any of these cases being decided. Unions NSW came out two weeks before, Outback Ballooning one week before, Wreck Bay just two days before and the Timber Creek case a month after. The abortion zone case is still a work in progress.

The other major conference, run by Melbourne Law School’s Centre for Comparative Constitutional Studies, is scheduled in July, a month when the Court doesn’t sit. The organisers have programmed only one session on recent cases, specifically ‘Recent Developments in Freedom of Political Communication’:

  • Professor Adrienne Stone, Melbourne Law School, Abortion Protests and the Limits of Free Political Communication

  • Mr Craig Lenehan, Victorian Bar, Public Servants, Elections, and Freedom of Political Communication

Adrienne Stone will (surely) have a judgment in the abortion cases on hand by then, but it’s unlikely that Craig Lenehan will have the Court’s reasons in Comcare v Banerji, which is only being argued today. Fortunately, given last week’s events, the political donations case isn’t in this session. In an earlier session, Graeme Hill has an easier task than Sean Brennan did, discussing the Timber Creek case four months after it was decided, rather than one month before.

One contrast between the Sydney conference and the Melbourne one is that the latter devotes more of its programme to more general issues. The main topic of the coming conference is the landmark Engineers case, approaching its centenary but also suddenly very current, thanks in larger measure to the thicket of federalism issues that ended up dominating last week’s hearing in the High Court. Not coincidentally, the programme includes one of the lawyers in that case, the Commonwealth’s Solicitor-General, Stephen Donaghue, discussing intergovernmental immunities. It is unlikely that he will have the benefit of the High Court’s ruling by then. The other morning session concerns national security, a topic that, tragically, remains as urgent as ever. Those who wish to attend the conference, which also includes reflections by current justice Stephen Gageler and former justice Ken Hayne, can register here.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.