Monthly Archives: September 2019

Taylor v Attorney-General (Cth)

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The High Court has published its reasons for its 19 June answers to a special case on private prosecutions of foreign officials at the International Criminal Court. Section 13(a) of the Crimes Act 1914 (Cth) provides that a person can institute trial proceedings against another person for an indictable offence against a law of the Commonwealth, unless that Act creating that offence shows a contrary intention. Section 268.121(1) of the Criminal Code provides that offences against Div 268 of the Code, which includes, among other things, crimes against humanity, cannot be commenced without the consent of the Attorney-General of the Commonwealth. On 16 March 2018, the plaintiff attempted to commence a prosecution against Myanmar State Counsellor Aung San Suu Kyi, alleging that Suu Kyi had committed crimes against humanity, contrary to Div 268.11, by lodging a charge sheet and draft summons at the Melbourne Magistrates Court. On the same day, the plaintiff also requested the Attorney-General of the Commonwealth’s consent to begin the prosecution, which the Attorney-General declined to order. On 23 March, the plaintiff commenced proceedings against the Attorney-General in the High Court’s original jurisdiction, seeking writs to quash the decision not to consent to the prosecution and to compel the Attorney-General to reconsider the request.

Majority

A majority of the Court held that the Attorney-General’s decision was the only one legally open on the basis that div 268 offences can only be prosecuted by the Attorney-General, and thus div 268 provides a contrary intention for s 13(a), precluding any private prosecutions for offences against div 268. Nettle and Gordon JJ and Edelman J dissented. Continue reading →

News: Court adds eight more appeals to its docket

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The third quarter of 2019 saw eight new grants of special leave to appeal, compared to the second quarter’s fifteen. The current three quarter total of 28 leaves the Court very well placed to exceed last year’s all-time-low of 35 grants in a year. Fittingly, in a fortnight where the Court heard four criminal law-related appeals (allowing one summarily) and issued judgments or reasons in two more, the majority of the new grants are criminal law-related.

Seven of the eight new matters the Court will hear by the end of the year are appeals from the following judgments: Continue reading →

VBA v Andriotis: Is Interstate Freedom of Movement a Threat to Quality Assurance in Australia’s Construction Industry?

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By Matthew Bell

When can registration authorities for building practitioners refuse to register on the basis of lack of ‘good character’?

The High Court of Australia unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, and agreed with the Full Court that the Victorian registration authority for building practitioners was unable to refuse registration in Victoria on the basis that the applicant did not meet the ‘good character’ provisions in the Building Act 1993 (Vic) (‘BAV’), to a practitioner registered in New South Wales, notwithstanding the lack of ‘good character’ provisions in NSW. This has ramifications for building practitioners, but also for registration schemes around the country and for the efficacy of legislative efforts to impose a certain level of competence on various practitioners.

The case revolved around two aspects of the Mutual Recognition Act 1992 (Cth) (‘MRA’):

  • the discretion (if any) provided to state regulators to refuse registration (here, on the good character grounds) under MRA s 20(2); and
  • whether those character provisions under the Victorian BAV fell within the exception provided (under MRA s 17(2)), by which the mutual recognition scheme is said not to ‘affect the operation of laws that regulate the manner of carrying on an occupation in the second State’.

The Court upheld a narrow view of such discretion and of the exception. This meant that the applicant was entitled to have his registration in Victoria considered without regard to character-related matters (which, in the Victorian authority’s view, disqualified him from registration in that state). As was summarised by Nettle and Gordon JJ at [98]:

it was not open to the [Victorian Building Practitioners] Board to determine whether Mr Andriotis was of good character as required by the [BAV]. Mr Andriotis was entitled to registration in Victoria because, having lodged a written notice with that Board under the [MRA], the fact of his registration in New South Wales was itself a sufficient ground of entitlement to registration for the equivalent occupation in Victoria.

There are cogent policy reasons which justify such a result. These are founded in (as Kiefel CJ, Bell and Keane JJ noted at [3]) ‘the goal of freedom of movement and goods and service providers in a national market in Australia’. As Gageler J pointed out, the mutual recognition scheme is of vital importance in delivering upon such a goal, having been the first order of business for the Council of Australian Governments upon its establishment in 1992 (see [51]–[57]). Continue reading →