The High Court has decided a constitutional matter examining whether the effect of ’emissions-intensive trade-exposed’ activities under the Clean Energy Regulations 2011 (Cth) is to give preference to one State over another contrary to s 99 of the Australian Constitution. The plaintiff nickel producers contended that there were Continue reading →

The High Court has dismissed an appeal from the NSW Court of Appeal in another matter relating to the Octaviar investment group collapse. As with the related matters, this challenge relates to extensions of time under s 588FF of the Corporations Act 2001 (Cth) which allows a liquidator to apply Continue reading →

The High Court has allowed an appeal against the decision of the New South Wales Court of Criminal Appeal on s 5D of the Criminal Appeal Act 1912 (NSW). That section allows the Attorney-General to Continue reading →

The High Court has allowed two appeals arising out of a New South Wales Court of Appeal decision relating to insolvency, voidable transactions, and the extension of time within which parties can bring proceedings. After the Octaviar investment group went Continue reading →

The High Court has unanimously allowed an appeal from the decision of the Full Federal Court relating to the powers of the Australian Communications and Media Authority. Following the suicide of a London nurse who was the target of ‘hoax call’ segment Continue reading →

The High Court has allowed an appeal from the Victorian Court of Appeal relating to an investment scheme in various forestry companies that have since been liquidated. The trustee of the investment scheme argued that a 1964 trust deed should limit Continue reading →

The High Court has unanimously dismissed an appeal from a decision of the Victorian Court of Appeal to refuse to stay civil forfeiture proceedings under the Proceeds of Crime Act 2002 (Cth). The first and second respondents, a husband and wife, were allegedly Continue reading →

A majority of the High Court has allowed in part an appeal from the decision of the New South Wales Court of Appeal in Cassegrain, relating to the fraud exception to the indefeasibility of title. In a related judgment, the NSWCA found that Claude Cassegrain, a director Continue reading →

The High Court has unanimously allowed an appeal from the New South Wales Court of Appeal’s decision in McKenna v Hunter and New England Local Health District. In 2004, Stephen Rose became concerned about the mental health of Continue reading →

James C Hathaway, ‘The Conundrum of Concealment: Minister for Immigration and Border Protection v SZSCA‘ (9 November 2014) (reposted from Reflaw)

A majority of the High Court has dismissed the Minister for Immigration and Border Protection’s appeal against the decision of the Full Federal Court in SZSCA. SZSCA fled Afghanistan after the Taliban threatened to kill him in retaliation for working as a truck driver for various aid agencies. Continue reading →

The High Court has decided a special case and upheld the validity of s 18 of the Criminal Law Amendment Act 1945 (Qld), which relates to continued detention of child sex offenders after the expiry of sentence, ‘at her Majesty’s pleasure’, on the grounds that the ‘offender is incapable of exercising proper control over the offender’s sexual instincts’. Continue reading →

Jeremy Gans, ‘The DNA, the Handshake and the Didgeridoo: Fitzgerald v The Queen‘ (18 August 2014).

The High Court has unanimously allowed an appeal against the decision of the Full Court of the Supreme Court of South Australia in R v Fitzgerald and acquitted the appellant of murder. Continue reading →

Andrew Roberts, ‘Expert Evidence and Unreliability in the High Court: Honeysett v The Queen‘ (3 September 2014).

The High Court has unanimously allowed an appeal against the decision of the NSW Court of Criminal Appeal in R v Honeysett, and has quashed the appellant’s conviction and ordered a new trial. Continue reading →

Thomas Bland, ‘Williams [No 2] Symposium: Thomas Bland on the Plaintiff’s Standing and the Commonwealth’s Attempt to Re-Open Williams [No 1]‘ (25 June 2014).

Cheryl Saunders, ‘Williams [No 2] Symposium: Cheryl Saunders on the Executive Power of the Commonwealth after Williams [No 2]‘ (25 June 2014).

Simon Evans, ‘Williams [No 2] Symposium: Simon Evans on Benefits to Students’ (23 June 2014).

Graeme Hill, ‘Williams [No 2] Symposium: Graeme Hill on Narrowing the Issues’ (23 June 2014).

Jeremy Gans, ‘News: Chaplaincy Hearing Reaches Its Fourth Day’ (9 May 2014).

The High Court has decided the special case arising out of and brought by the same applicant in the recent landmark constitutional law decision, Williams v Commonwealth [2012] HCA 23, and has ruled that the SUQ Funding Agreement is not supported by the legislative or executive power of the Commonwealth.

Both the present challenge and Williams [No 1] revolved around the Commonwealth’s power to enter into an agreement to fund the public company Scripture Union Queensland’s (SUQ) delivery of chaplaincy services to the Darling Heights State Primary School (attended by Mr William’s children). In Williams [No 1], a majority of the Court held that the executive power of the Commonwealth could not support its entry into the agreement with SUQ in order to fund the chaplaincy program because the executive does not have a broad power to enter into contracts or spend public money without the support of legislation (absent another recognised source of power).

This challenge related to the new funding arrangement with SUQ for the renewed and renamed chaplaincy program, funded by a new series of appropriations acts (which also purportedly support the Commonwealth’s entry into the arrangement). Following the decision in Williams No 1, the Commonwealth Parliament inserted s 32B into the Financial Management and Accountability Act 1997 (Cth), which (in conjunction with associated regulations) purports to grant the Commonwealth a general power to make, vary or administer arrangements and grants, where those arrangements or grants are specified in regulations.

The stated case raised eight questions to be answered by the Full Court. The central issues are whether the Commonwealth’s entry into the SUQ funding agreement is authorised by various appropriation acts, and if not, whether s 32B (and its associated regulations) is wholly invalid as going beyond the ambit of the Commonwealth’s executive power, and if not, whether those provisions are supported by a head of legislative power in the Australian Constitution (specifically, ss 51(xxiiiA), 51(xx) or 51(xxxix), operating in conjunction with s 61).

The Court held that the scheme was not supported by s 51(xxiiiA) because the provision of chaplaincy services is not a ‘benefit’ within the meaning of s 51(xxiiiA) in the sense of material aid (as interpreted by the Court in British Medical Association v Commonwealth [1949] HCA 44 or Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6) directly made to students. Payments to be applied as wages to chaplains who are to ‘support the wellbeing’ of students are not ‘benefits’ to students within the meaning of s 51(xxiiiA): at [47]. Nor was it supported by s 51(xx) as the scheme does not regulate or permit any act by or on behalf of a corporation: ‘[t]he corporation’s capacity to make the agreement and receive and apply the payments is not provided by the impugned provisions’ (at [50]). The Court also declined to reopen Williams [No 1] on the basis that the Commonwealth’s submissions here were ‘no more than a repetition of the “broad basis” submissions’ on executive power rejected by the majority in Williams [No 1], and noting that the Commonwealth’s arguments rested on a ‘false assumption’ about the ambit of federal executive power (see at [78]–[83]). Finally, the Court rejected the s 51(xxxix) argument as being contrary to Pape v Commissioner of Taxation [2009] HCA 23 and Williams [No 1]: appropriations do not necessarily bring the expenditures within the power of the Commonwealth. Crennan J agreed with the majority but made a reservation regarding s 51(xxiiiA) noting that it was unnecessary for the Court to come to any conclusions on the wisdom of the scheme (at [101]); instead it was only necessary to find that the scheme did not provide government assistance to or for students as prescribed and identifiable beneficiaries: [102], [110].
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