Features

The Fluctuating Nature of a Partnership Interest: Commissioner of State Revenue v Rojoda Pty Ltd

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By Barry Diamond
Senior Fellow in the Melbourne Law Masters and PwC Partner

When a partner ‘confirms’ she holds land on trust for other partners upon dissolution of the partnership, is this a confirmation of a pre-existing relationship, or a new trust for the purposes of stamp duty?

Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7 arose when a registered proprietor of land in Western Australia and a partner in a partnership, ‘confirmed’ that she held the land on trust for the partners in their respective shares following dissolution of the partnership. If the ‘confirmation’ was a declaration of new trust for the partners, duty was chargeable under the Duties Act 2008 (WA). However, if it was merely an acknowledgement of the same pre-existing trust relationship, no duty was chargeable. So, what was the legal nature of the pre-existing relationship between the partners? Did that differ to the relationship following the ‘confirmation’? Resolution of this question meant identifying the legal nature of the relationship between the partners and particularly the nature of a partnership interest.

The five-member High Court was divided 4:1. The majority (Bell, Keane, Nettle, Edelman JJ jointly) ruled in favour of the Commissioner of State Revenue that a new trust was created. Gageler J dissented and held that it was simply a confirmation of a pre-existing relationship. The respective judgments enlighten us on the different perspectives of the nature of a partnership interest, and I have considered both. There are other issues raised in the judgment, but I have not sought to discuss them here.

Continue reading →

A tale of two townhouses and quantum meruit: Mann v Paterson Constructions Pty Ltd

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Mann v Paterson Constructions Pty Ltd case page

The facts of this case will not strain the imagination of anyone with experience of domestic building work. Angela and Peter Mann engaged Paterson Constructions to build two townhouses in Blackburn, in suburban Melbourne. The parties fell into dispute when the builder claimed nearly $50,000 for additional work. The Manns claimed the builder refused to return to site until the bill for the additional work was paid, and that the work was defective. They argued that this amounted to a repudiation of their contract, and purported to accept the builder’s repudiation. The builder responded that the Manns did not have a lawful right to terminate and that, as a result, their actions amounted to a repudiation which the builder accepted. On any analysis, the contract was terminated. The Victorian Civil and Administrative Tribunal (VCAT) found that the Manns had repudiated the contract. The Manns appealed to the Supreme Court of Victoria, then to the Court of Appeal, and finally to the High Court.

The critical issue: can the builder elect between contract damages or a quantum merit? 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 →

Construction contractors beware – common clauses may now be unenforceable after Maxcon Constructions v Vadasz

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By Owen Hayford and Hannah Stewart-Weeks
Senior Fellow in the Melbourne Law Masters and Partner, PwC Legal and Senior Associate, PwC Legal

Probuild and Maxcon Case Page

If you’re a construction lawyer or construction industry professional, by now you’ve probably heard about the recent High Court decision in Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5 (‘Maxcon’) (handed down at the same time as the decision in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4). Most commentators have focused on the judicial review issue which arose in both of those cases. However, the High Court in Maxcon also determined that a provision in a construction agreement which allowed a head contractor to withhold retention moneys under a subcontract until certain events had occurred under the head contract was a ‘pay when paid’ provision, and was therefore not legally enforceable under the security of payment (SOP) legislation. (See Kiefel CJ, Bell, Keane, Nettle and Gordon JJ at [16]–[29]. Gageler J at [32] and Edelman J at [41] agreed with the conclusions of the plurality regarding the operation of the SOP legislation, but did not consider the issue determinative of the appeal).

In this instance, the relevant SOP legislation was the Building and Construction Industry Security of Payment Act 2009 (SA) (‘SA SOP Act’), but most other States apart from Western Australia and the Northern Territory have similar provisions to the SA SOP Act. Thus, the decision has potentially broad implications for head contractors, not only in relation to retention provisions, but also in relation to other provisions which attempt to make a payment under a subcontract contingent upon an event occurring under the head contract. Head contractors may need to review their subcontracts to ensure that they don’t inadvertently contain ‘pay when paid’ provisions as a result of this decision. Continue reading →

Roll Up, Roll Up … for A Transformational Journey into the Australian Constitution!

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By Martin Clark

David Foster Wallace’s journey into voter apathy in the United States following John McCain’s 2000 Presidential campaign around the country led him to this profound insight:

it’s hard to get good answers to why Young Voters are so uninterested in politics. This is probably because it’s next to impossible to get someone to think hard about why he’s [sic] not interested in something. The boredom itself preempts the inquiry; the fact of the feeling’s enough.

Picking over the political ‘upsets’ that fixed the attention of the Anglophone western world in 2016 — the Brexit referendum and the election of Donald J Trump to the Presidency of the United States — plenty of commentators read these as ‘anti-establishment’ political movements. Voters in the UK and the US sought to vent their frustration at ‘political elites’. Formerly uninterested in politics or bored with politicians, these voters suddenly thought ‘hard’ and did the ‘next to impossible’: got out to vote in support of the movement or candidate promising to rock the establishment to its core … and in both instances there is already plenty of evidence showing a ‘betrayal’ is not far off.

What could any of this have to do with Australia’s High Court? Half a world away, the centrepiece of our legal establishment enjoys an extremely high public confidence rating. Unlike the Supreme Court of the United States (or even, given the recent Brexit cases, the United Kingdom Supreme Court), the High Court is firmly insulated against politics. Its cases, reasoning and appointments are always (said to be) about questions of law and legal expertise, not politics. This year’s cases on voting procedures, parliamentary retirement entitlements, and senate eligibility remind us that even when the Court touches on the overtly political, it is guided — as it (says it) must be — by legalism. (Certainly, that hasn’t stopped it from being the stage for often dramatic political protests (here and here).)

But really, what is all this preamble about boredom and the ‘establishment’, politics and legalism in aid of? Well, the Constitution Education Fund Australia has just announced a new journey: a major new interactive multimedia exhibit about the Constitution which will be installed in the High Court itself. Continue reading →

Coralling the penalties horse: Paciocco v Australia and New Zealand Banking Group Ltd

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Paciocco v ANZ Case Page

It’s said that you can’t shut the stable door after the horse has bolted, but this presumes that there is only one door. If there is a gate on the field around the stable, then the horse can be successfully corralled by shutting the second door, even if the first door is left wide open. And in Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28, the High Court effectively shut a ‘second door’ to prevent the penalties doctrine from escaping. The ‘doors’ are the two questions a court must ask when establishing whether a clause is a penalty and thus void or unenforceable:

  1. Is this a clause to which penalties doctrine applies?
  2. On the facts, is this clause a penalty?

The first door had been left ajar in Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30, potentially allowing the penalties doctrine to invalidate (at least partially) a wider range of clauses. This post will focus on the penalties doctrine rather than on the statutory claims of the appellants. It is suggested that after Paciocco there will only be a very small number of cases where plaintiffs can successfully challenge contractual clauses as void or unenforceable penalties. The Court’s findings regarding the question of whether a specific clause was a penalty indicate that the second door has been closed so that only the tiniest crack remains. This will be a relief for organisations such as banks and utility companies as they will have greater latitude to charge late payment fees. And it will provide particular relief for construction contractors, who were concerned that abatement provisions (often used in PPP or Public Private Partnerships) and time bar provisions would be penalties pursuant to Andrews. Continue reading →

Scott Stephenson, Michael Crommelin and Cheryl Saunders on the Judgments in Plaintiff M68-2015 v Commonwealth

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Plaintiff M68-2015 Case Page

This post collects three perspectives on the judgments of the High Court in Plaintiff M68/2015 v Commonwealth [2016] HCA 1 offered by Scott Stephenson, Michael Crommelin and Cheryl Saunders. These remarks emerged from a recent discussion of the case at a workshop by the Centre for Comparative Constitutional Studies at MLS convened by Adrienne Stone. Scott spoke on the joint judgment and the judgment of Keane J, Michael on Bell J and Gageler J’s opinions, and Cheryl on the dissent of Gordon J.

Scott Stephenson on the Joint Judgment (French CJ, Kiefel and Nettle JJ) and Keane J

Cheryl, Michael and I have divided our discussion of M68 by judgment. I will start by covering the joint judgment of French CJ, Kiefel and Nettle JJ as well as the judgment of Keane J. I imagine most people are somewhat familiar with the case and the facts, but let me provide a brief overview.

The case was a challenge to the legality of the offshore processing arrangements that operate on Nauru. The arrangements allow the Australian Government to transfer to Nauru non-citizens who arrive in Australia by boat without a valid visa and seek asylum. These persons remain on Nauru while their applications for refugee status are determined. In practice, the arrangements work as follows. The Australian Government intercepts an asylum seeker at sea, brings the person to Australia, and applies on behalf of the asylum seeker, and without their consent, to the Nauru Government for a regional processing centre visa. The Nauru Government grants this visa, allowing them to enter the country. The asylum seeker is transferred to Nauru and placed in a camp that is for the most part operated by Wilson Parking, a sub-contractor of Transfield. The asylum seeker remains in this camp while the Nauru Government determines their application for refugee status under Nauru law. Continue reading →

A Comment on Professor Finnis’s Praise of Australia’s High Court

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In a recent lecture Judicial Power: Past, Present and Future, leading legal philosopher Professor John Finnis launched a strong critique of the Supreme Court of the United Kingdom, especially the famous decision of its predecessor, the House of Lords, in the Belmarsh case, that a provision permitting the detention of suspected terrorists was incompatible with Europe’s human rights convention. By contrast he was strongly supportive of the High Court, writing:

Australia, which has as a federal nation done entirely without constitutionally stated rights for 115 years, made the choice not to entrust this inappropriate kind of power to judges, but to trust themselves and the legislatures they elect. (Victoria and one small federal territory are the only exceptions and very novel ones.) Australia I would say has done easily as well as countries under judicially enforceable or even judicially declarable human rights, and has kept its legislative and judicial discourse authentic, largely uncluttered with this sort of make-believe and confusion of roles, responsibilities and competences.

Professor Finnis relied upon the High Court’s decision in Al-Kateb v Godwin [2004] HCA 37 (where Court upheld indefinite immigration detention in some circumstances) and reserved particular praise for Justice Heydon’s judgment in Momcilovic v The Queen [2011] HCA 34 (where he would have declared Victoria’s human rights law constitutionally invalid.)

Policy Exchange, which has published the lecture as part of its judicial power project, invited three leading constitutional scholars to comment. Adrienne Stone’s commentary — questioning his reliance on Al-Kateb and Momcilovic — is here: Continue reading →

Seeing the Wood for the Trees — Finding the Intention to Create a Trust: Korda v Australian Executor Trustees (SA) Ltd

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By Paul Collins

Korda Case Page

Introduction

In a famous literary allusion, du Parcq LJ in Re Schebsman [1944] Ch 83 noted that an intention to create a trust can possibly be created by unguarded language, as in Molière’s Monsieur Jourdain who talked prose without knowing it, although he qualified this by saying that ‘unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the court ought not to be astute to discover indications of such an intention’. In Jessup v Queensland Housing Commission [2001] QCA 312, McPherson JA added at [9] that if the purpose of the settlor was to inspire the poetry of trusts, it was odd that it chose to express itself in common law prose.

This very controversy often arises in the rather prosaic event of insolvency where a party contends that certain assets are not available to creditors because beneficial ownership is vested in a party other than the debtor by reason of a trust. Thus in Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6, the High Court of Australia examined the question whether a trust could be inferred from a contractual relationship. Continue reading →

Australian Feminist Judgments: Righting and Re-Writing Law: Book Review

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By Professor Ann O’Connell

Do women think differently to men? Do women lawyers think differently to their male counterparts? More importantly, do women judges judge differently to male judges? A new book, the product of an Australian Research Council grant, seeks to deal with this question. The book is Australian Feminist Judgments: Righting and Re-Writing Law, edited by legal academics Professor Heather Douglas, Dr Francesca Bartlett, Dr Trish Luker and Professor Rosemary Hunter. The book draws inspiration from similar projects in the United Kingdom and Canada, but, as its title indicates, the focus is on Australian judicial decisions. The purpose of the project is to investigate the ‘possibilities, limits and implications of a feminist approach to legal decision making’.

The Australian project involved 55 (mainly) academic lawyers who were tasked with revisiting and rewriting significant decisions in their chosen field which were ‘influenced by, or alternatively, offended feminist principles’. Most, but not all the contributors are women. Most, but not all of the judgments are High Court decisions. The oldest judgment is from 1963 but the majority are more recent cases: 17 of the 26 decisions being handed down since 2000. This is significant because the task was not about updating the judgments to reflect contemporary social mores, but rather it was to step into the shoes of the judge (or judges) as if deciding the case afresh but at the time of the original decision.

The book contains 26 rewritten judgments covering a range of legal subjects. Some of the areas covered might be regarded as covering predictable ‘feminist’ subjects — family law, sexual offences and discrimination law — but the book also deals with less obviously feminist areas of law such as immigration, tort law, taxation, constitutional law, environment and indigenous issues. Four themes were identified to group the judgments: public law; private law; crime and evidence and interpreting equality. The contributors comprised a ‘judge’ (or ‘judges’) who rewrote the judgment and a commentator who provided the context for the original decision and a discussion of the rewritten judgment. Continue reading →

Sir Anthony Mason Reflects on Judging in Australia and Hong Kong, Precedent and Judgment Writing

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On 18 July 2014, I was able to interview Sir Anthony Mason as we were both attending Obligations VII Conference in Hong Kong.

Sir Anthony was a judge of the High Court of Australia from 1972 to 1987, and Chief Justice of the High Court of Australia from 1987 to 1995. He then became a non-permanent judge of the Hong Kong Court of Final Appeal, a position which he still holds.

We spoke about his roles as a judge in Australia and Hong Kong, significant judgments during his time as a High Court judge, the role of dissenting judgments, the use of academic commentary and overseas judgments, the doctrine of precedent and Farah v Say-Dee, and judgment writing styles.

KB: Thanks so much for agreeing to speak to me today.

AM: It’s a pleasure, Katy.

KB: The first thing I’d like to ask is: how would you view your time on the High Court?

AM: I enjoyed it very much. I suppose I can say I enjoyed being a judge.

KB: Yes.

AM: In one sense I regarded it as great fun. It was of course at times onerous, but I always enjoyed it. The questions were interesting and it was interesting endeavouring to answer the questions.

KB: And on that note, obviously you haven’t still given up being a judge. What about your time on the Hong Kong Court of Final Appeal? (See also The Hon Sir Anthony Mason, ‘The Hong Kong Court of Final Appeal’ (2001) 2 Melbourne Journal of International Law 216.)

AM: Likewise, I’ve enjoyed that very much. There are two different, or two aspects of that that are different from sitting in the High Court. First of all I am sitting on the CFA as a part-time judge. It’s more enjoyable being a part-time judge than a full-time one. Of course you don’t feel that sense of grind which you feel at times if you’re a permanent judge sitting on a court over a long period of time. But the second feature of sitting on the CFA is that I began sitting on that Court at the time when courts began to interpret the provisions of the Basic Law of Hong Kong’s Constitution. And it’s very different interpreting the provisions of a new Constitution at the very beginning from interpreting the provisions of an old Constitution after a lot of, as it were, work has already been done on it. You feel at times in the medium of the High Court that you’ve got to contend with a lot of overburden. You never have that feeling in Hong Kong. And the great thing about it is that it instils in you a sense of history and appreciation of the work done by those great judges who were the first High Court judges. I mean, they were remarkably good judges. They quickly established a reputation for the High Court as one of the leading courts in the world, and what’s more, they stood up to the Privy Council, and in their first big confrontation with the Privy Council they won out, and you should never forget their contribution to the development of Australian democracy and to the Australian Constitution. (See Deakin v Webb [1904] HCA 57.) Continue reading →

Bank fees back in court again

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The class action involving bank fees is back in court again. Last year, the class action against banks was uplifted to the High Court in Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 3. It was remitted back down to the Federal Court for decision in light of the High Court’s decision last year and is presently being heard. The case involved the rule against penalties in contract. The essence of the rule is that parties may stipulate the amount payable for certain breaches of contract (known as ‘liquidated damages’), but if the amount payable is not a genuine pre-estimate of loss and is instead in terrorem of the other contracting party (i.e. designed to scare them into performance rather than compensate for loss) then the clause may be struck down by the law against penalties: see Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; (2005) 224 CLR 656, affirming Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

There has been intense media interest in the case (see here and here) and indeed, I was contacted by a number of outlets when the case went back to the Federal Court (for example, here and here) . As noted on Monday, there is a great deal of money at stake for both the banks and the customers. The present class action involves a $57 million claim, but other planned class actions are estimated to be worth $243 million, and more may be in the pipeline, depending on the success of this claim. Continue reading →

Trident v McNiece twenty five years on

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The seminal third party contract case Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44 was decided twenty five years ago. It continues to be relevant to legal practice and legal education. It has had a lasting and important impact on insurance contracts, as it decided that the doctrine of privity did not apply to those contract. Typically the doctrine of privity means that only the parties to a contract are bound by it, and a person who is not a party to a contract (a ‘third party’) cannot enforce it. For example, suppose that Alphonse makes a contract with Bertha to the effect that Bertha will give Clarence an annuity after Alphonse dies. If Alphonse dies, and Bertha refuses to pay the annuity to Clarence, Clarence can’t force Bertha to keep to the contract because he is not a party to it.

The case also remains a reminder that the High Court will, when presented with the right circumstances, rework the law to achieve a just and fair outcome. In this post I will explore how the decision on the doctrine of privity has become entrenched; and discuss the impact on the decision, in particular the judgment of Deane J on our understanding of the law of express trusts.

What happened in Trident? Continue reading →

Justice Gummow Reflects on His Time on the High Court

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By Martin Clark

On Friday 13 September 2013 I was lucky enough to spend an hour interviewing Professor William Gummow AC about his time on the High Court of Australia (1995–2012).

Professor William Gummow AC retired in October 2012 from the High Court after 17 years on the bench. Prior to that he sat on the Federal Court for ten years, and before that had been an influential and highly-regarded member of the Sydney Bar, a partner at Allen Allen and Hemsley, and also lectured part-time at the Sydney Law School from 1965 until 1995. He is now Professor of Law at the Sydney Law School and the Australian National University.

In this extensive interview, Professor Gummow discusses a wide range of topics, including the  similarities and differences between the judges and processes of the High Court of Australia and other apex courts around the world, his views on advocacy before the High Court, and changes in the legal profession. He also offers his thoughts on the enduring importance of several great Australian judges, including Sir Owen Dixon, Sir Victor Windeyer, Sir Garfield Barwick and Sir Nigel Bowen. Continue reading →

Reflections on the Local Government Referendum That Wasn’t

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By Laureate Professor Cheryl Saunders AO

The latest proposal to amend the Commonwealth Constitution to ‘recognise’ local government may go down in history as one of the most inept attempts at constitutional change in Australia. Insofar as it has an indirect link to the decisions of the High Court in Pape v Commissioner of Taxation [2009] HCA 23 and Williams v Commonwealth [2012] HCA 23 it merits a post on Opinions on High. In any event, there are lessons to be drawn from the history of this proposal, as a guide to the formulation and conduct of future referendum proposals.

Constitution Alteration (Local Government) 2013 (Cth) passed both Houses of the Commonwealth Parliament on 24 June 2013. The impetus for it derived from a long-held desire on the part of local government to be recognised in the Commonwealth Constitution as the third arm of Australian government. This project is fraught because recognition almost inevitably involves substantive change of some kind in the operation of the Australian federation, in which the relations between the other two arms of government already is under strain. A proposal cast in terms of symbolic recognition was rejected at referendum in 1988. An earlier proposal to establish a direct financial relationship between the Commonwealth and local government was rejected in 1974 (see here). Continue reading →

Precedent on High: The High Court of Australia and ‘Seriously Considered Dicta’

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By James Lee

This post considers a specific feature of the High Court of Australia’s approach to precedent. Since the 2007 decision in Farah Constructions v Say-Dee [2007] HCA 22, the Justices have moved to restrict the scope of the lower courts to develop the law, by asserting that lower courts are bound by ‘seriously considered dicta’ ([134] and [158]) of the High Court, admonishing courts below for raising new arguments in the course of judgments. Keith Mason has claimed that, in so doing, the High Court has effected a ‘profound shift in the rules of judicial engagement’ (Keith Mason, ‘President Mason’s Farewell Speech’ (2008) 82 Australian Law Journal 768, 769, see the original remarks here at 18–22). An excellent feature-length examination of the issues has been provided by Associate Professor Matthew Harding and Professor Ian Malkin (‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 239). In this short post, I argue that the approach has uncertain implications for the Australian doctrine of precedent and the scope for intermediate courts of appeal to develop the law.

What is the High Court’s approach? Farah v Say-Dee and subsequent cases
Farah v Say-Dee concerned a claim for a variety of equitable reliefs in respect of various properties which were the subject of a joint venture development scheme between the claimant and defendant. The planning application for the property was unsuccessful, because the site was considered too small to ‘maximise its development potential’. During the application process, the defendant learned that permission was more likely to be granted if adjacent properties were included in the planned development. The defendant bought these properties through a company which he controlled. The claimants contended that these properties had been acquired through a breach of fiduciary duty and that consequently the recipients had knowingly received the properties, which were held on constructive trust for the claimants. The Court of Appeal of the Supreme Court of New South Wales allowed the claimant’s claim, reversing the judge’s finding that there had been no breach of fiduciary duty, and instead held that the defendants were liable in knowing receipt. The Court of Appeal also found that a strict liability claim in unjust enrichment was available. Continue reading →

News: Your Right to be on the Electoral Roll and Rowe’s Case

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By Professor Miranda Stewart

The electoral roll closes by 8pm today, Monday 12 August 2013, seven days after the election writs were issued. If you have not registered by this time, you will not be eligible to vote in the forthcoming election on 7 September.

It seems appropriate to commemorate today the victory in Rowe’s Case [2010] HCA 46 in which the High Court struck down as unconstitutional, a law by which the electoral roll was closed on the day of issue of the electoral writ (usually, the day that the election is announced). The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), passed under the Howard government, had amended the Electoral Act 1918 (Cth), resulting in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details. Previously, the electoral roll remained open for a period of seven days after the issue of the writ.

The victory reinstated the previous deadline for closure of the roll, and the High Court heard the case urgently and issued its decision within a record time, to enable an estimated 100,000 voters who were not on the roll, including many young people voting for the first time, to register to vote in the 2010 election. The plaintiff, Shannen Rowe, had turned 18 just a month before the 2010 election was called by then-Prime Minister Julia Gillard. Of course, she had not been old enough to vote in any previous election. Continue reading →

Turning Points in the High Court: Remembering the Koowarta and Tasmanian Dam Cases

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Peter Dombrovskis, ‘Rock Island Bend, Franklin River, Southwest Tasmania’ (1983).

By Dr Ann Genovese

2012 and 2013 mark the respective 30th anniversaries of the High Court’s decisions in Koowarta v Bjelke-Petersen [1982] HCA 27 and in Commonwealth v Tasmania [1983] HCA 21 (the Tasmanian Dam case).

Each of these cases is commonly understood to represent a turning point in Australia’s legal and political history: a shift to a different form of political engagement on complex questions about race, and the environment; and a shift in what those engagements could signify, nationally, and internationally. Cumulatively, the cases are also understood as marking a decisive jurisprudential turn, a consideration of a different engagement by the High Court of Australia with both international law and the politics of federal constitutionalism.

After 30 years, it is timely to reflect on the ongoing significance, in political and legal terms, of these two ground-breaking cases; yet also to review the complex ways in which the cases are remembered or understood as turning points. Two symposia hosted at the Melbourne Law School commemorated these anniversaries and the proceedings will be published in two special issues of the Griffith Law Review.

These symposia placed the cases into conversation with each other for the first time, opening new ways of approaching and writing about law’s authority and narratives as constitutive of an evolving Australian national identity into the 21st century. Continue reading →

Remembering the Tasmanian Dam Case

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Peter Dombrovskis, ‘Rock Island Bend, Franklin River, Southwest Tasmania’ (1983).

By Martin Clark

Commonwealth v Tasmania Case Page

On 1 July 1983, the High Court sat in Brisbane to hand down its decision in Commonwealth v Tasmania [1983] HCA 21. Popularly known as the Tasmanian Dam case, the decision is a landmark in Australian constitutional and environmental law. On 28 June 2013, 30 years after the decision was handed down, the Melbourne Law School hosted a symposium ‘Turning Points: Remembering Commonwealth v Tasmania (1983) 158 CLR 1’, to commemorate and reflect on the significance of the Tasmanian Dam case for Australian society, the environment and Australian law. The private symposium was convened by Dr Ann Genovese (Melbourne Law School). It brought together significant figures involved in the case, academic lawyers, historians and environmental activists, and the papers presented will be published in a forthcoming issue of the Griffith Law Review. For more on the Turning Points symposium, see here.

Continue reading →

The High Court and the Doctrine of Precedent

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By Associate Professor Matthew Harding

The doctrine of precedent is a fundamental constraint on judicial decision-making in Australia. The general idea behind the doctrine of precedent is that judges, when they are deciding cases, must pay proper respect to past judicial decisions. Sometimes this means that judges are bound to apply the reasoning of judges in past cases — in other words, ‘follow’ past decisions — when deciding cases that raise similar facts; sometimes it means that judges must take seriously the reasoning of judges in past cases even if they are not bound to apply that reasoning. The moral value of the doctrine of precedent is in the way it serves the political ideal of the rule of law; according to that ideal, institutions of the state, like courts, should strive to ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties. Continue reading →