In the 1984 science fiction movie The Terminator, the Terminator, a cybernetic android assassin from the future, pursues the two heroes of the movie, Sarah Connor and Kyle Reese relentlessly. Connor and Reese shelter in a police station, and the Terminator seeks entry, but is denied entry by a policeman at the door. He says to the policeman “I’ll be back” and returns in a car, which he crashes through the door of the police station, over the top of the officer who denied him entry. In later movies spawned by the first (the sequelae that never end?) “I’ll be back” comes to be the Terminator’s mantra: he never gives up, as will be evident from my description of the final scenes of the original movie (in my opinion, still the best of the series).

Over and over, in The Terminator, the two heroes think they’ve escaped him or killed him, but he just keeps going, despite an explosion which destroys the external layer of human flesh which makes him look human and reduces him to a metal skeleton. Eventually, Reese puts explosives in the Terminator’s metal torso (killing himself in the process) and it seems the Terminator is finally dead. His legs have been blown off, and the light in his eyes has faded. Then his red eyes light up again, and he starts dragging himself along with his arms, still intent upon killing Connor. This scene always horrified me—it’s something from our primal nightmares—the thing which just won’t stop.

You might wonder why I’m mentioning this on the High Court blog. I’m glad you asked! Famously, there is an Australian litigation equivalent to the Terminator: the litigation which just won’t die. However, it seems that after almost thirty years, the Bell Group litigation is finally over, and I could not let that momentous moment pass (akin to Sarah Connor releasing the hydraulic press upon the cybernetic android). Continue reading →

While the High Court suspended its hearings of appeals and original jurisdiction matters in April and May and switched to video connection hearings in June due to COVID-19,  it has largely continued hearing special hearing matters by video link from its various registries. The result this quarter is twelve new appeals – more than average compared to recent years – being added to its pipeline, bringing the total special leave grants for the first half of the year to seventeen.

The twelve new cases the High Court will, pandemic-permitting, hear in the second half of the year are appeals from the following matters: Continue reading →

BELL J: Perhaps, Ms Shaw, before you commence, may I indicate that if at any time either you or Mr Nathan have any difficulty in terms of hearing or seeing the Bench would you please indicate that at the first opportunity.

MS SHAW: I am grateful, your Honour, for that information.

According to the official transcript of proceedings, the High Court of Australia this week heard a criminal appeal ‘FROM CANBERRA BY VIDEO CONNECTION TO SYDNEY, MELBOURNE, ADELAIDE AND DARWIN’. That’s a contrast with its appeals this March, which the transcript described as ‘AT CANBERRA’ (and I can attest placed all seven justices and counsel in Courtroom No. 1.) The High Court has in the past heard chambers or special leave applications by video (e.g. ‘FROM CANBERRA BY VIDEO LINK TO ADELAIDE‘) – a link between two of the Court’s registries – but Cumberland v The Queen [2020] HCATrans 49 appears to go further in several ways. For starters, it’s an appeal (not a mere application), it’s a video ‘connection’ and, most dramatically, that connection is across three states and two territories. A later exchange reveals two still more startling things:

BELL J: Thank you, Mr Nathan. Anything in reply, Ms Shaw? Ms Shaw, can I interrupt you for a moment? We do not – or certainly in this Court I am not hearing any audio. I do not know whether Justices Gageler and Nettle can hear you, but I cannot.

GAGELER J: I cannot.

NETTLE J: I cannot.

MS SHAW: Can your Honours hear me now?

NETTLE J: Yes, thank you.

BELL J: Yes, thank you, Ms Shaw.

MS SHAW: Thank you. That was our fault at this end, your Honours. I apologise.

BELL J: Not at all.

The first part of this excerpt suggests that the three justices were not only not in the same room as Cumberland’s counsel, but themselves in three different cities for the hearing. And the second part hints that Marie Shaw is not in a courtroom at all. Alas, the transcript doesn’t reveal who is where during this historic event in the national court.

Justice Edelman foreshadowed these events in a chambers matter in late March Continue reading →

In a notice titled ‘COVID 19’, the High Court has cancelled appeal and original jurisdiction hearings through to (at least) June:

Following the adoption of policies restricting travel and meetings and remote workplace arrangements it has been decided that the High Court of Australia will not be sitting in Canberra or on circuit in the months of April, May and June.  The question of future sittings will be reviewed in June.

The notice specifies that ‘the Court will continue to deliver judgments’ – there are eight judgments and one set of reasons presently reserved – and ‘will deal with special leave applications including hearings as necessary at individual registries’.

The notice’s principal effect is on the progress of as yet unheard matters in the Court’s original jurisdiction or where special leave has been granted. When the Court made its COVID announcement, there were twelve such matters, including five that had been listed to be heard in April:

• ABT17, a refugee matter (listed for April)
• Berry, on damages for deceptive conduct (listed for April)
• Calidad, a patent dispute about single-use ink cartridges
• Cumberland, a Northern Territory sentencing appeal (listed for April)
• CXXXVIII, a dispute about the Australian Crime and Intelligence Commission’s powers
• Hsiao, a family law dispute about a deed of gift
• Lewis, on damages for wrongful detention (listed for April)
• CED16, a refugee matter on public interest certificates (listed for April)
• Mondelez, on leave entitlements for shift workers
• Quall, on authorising native title agreements
• Private R, a constitutional challenge to a military prosecution
• Masson, a negligence suit against ambulance officers

These matters seemingly won’t be heard until at least the first week of August.

To these must now be added a further five cases where special leave to appeal was granted this week, the first such grants this year:

• Abdirahman-Khalif v The Queen [2019] SASCFC 133, an appeal against a conviction for membership of a terrorist organisation, specifically Islamic State. After the accused was stopped en route to Turkey, police searches and bugs yielded evidence of her swearing allegiance to Islamic State’s then head and planning to go there to marry and provide medical support to fighters. A majority of the Full Court of the Supreme Court of South Australia quashed her conviction, ruling that merely living in Islamic State does not amount to membership of the organisation that runs Islamic State.
• Deguisa  v Lynn [2019] SASCFC 107, a civil appeal concerning the enforcement of a restricted covenant applying to subdivided lots. The parties were both current owners of lots of land that were subdivided in 1963, including a ‘building scheme’ that restricted most of the lots to having one dwelling only.  A majority of the Full Court of the Supreme Court of South Australia ruled that the covenant bound the current owners (including one owner who wanted to build two premises on their lots) and that other similarly bound owners (intcluding one trying to stop that building) had standing to enforce it.
• FRM17 v Minister for Home Affairs [2019] FCAFC 148, a test case on negligence actions relating to the medical treatment of asylum seekers on Nauru. The Full Court of the Federal Court ruled that negligence actions are not barred by a statutory provision banning that court from hearing challenges to offshore processing.
• O’Neill v Roy [2019] NTCA 8, a criminal appeal concerning breach of an apprehended violence order. After a court ordered the defendant to stay away from her partner while intoxicated, the police looked through her partner’s screen door and saw the couple inside with the defendant lying on the ground, seemingly drunk. A magistrate excluded the evidence as illegally obtained, but the Northern Territory Court of Appeal restored it, ruling that the police had an implied licence to knock at the door.
• [Applicant S270/2019] v Minister for Immigration and Border Protection v Minister for Immigration and Border Protection [2019] FCAFC 126, an immigration appeal against a decision to revoke a visa on character grounds. After a Vietnamese refugee who came to Australia in 1990 had his visa revoked following a string of convictions for offences related to his drug habit, he argued that the Minister’s refusal to cancel the revocation was unreasonable given that he was now drug-free and that he failed to consider the risks arising from being returned to Vietnam. A majority of the Full Court of the Federal Court rejected those challenges, finding that that the Minister’s view that the refugee was a danger to the community was reasonable and that he made no jurisdictional error in refusing the cancel the revocation.

Assuming these matters are heard after the twelve earlier pending matters, it seems unlikely that they will be decided until next year.

In the final quarter of the year, the High Court granted special leave in twelve appeals, including four grants made without an oral hearing, bringing the year’s total to 41 grants, including nine on the papers, as well as one referral to a fuller bench.

The twelve cases granted leave from October to December are: Continue reading →

On 31 October 2019, Kiefel CJ gave a speech concerning academics and the court. As an academic who has recently conducted a small study of who was cited by the High Court between 2015 and 2017, I welcome Kiefel CJ’s speech warmly. In her introduction she said that academic writing which is directed to judges, to the profession and to the public is a ‘valuable resource for judges’, and then continued, ‘[a]cademic lawyers are well placed to provide commentary both in terms of their focus on particular topics and the time available to them. Judges are under special constraints and therefore appreciate academic literature which is on point and useful.’

I was also very heartened by the Chief Justice’s comments on judges who use academic material without acknowledging it. She said, ‘I would like to think that this is a practice of the past and that these days acknowledgement is given where it is due’. I hope that her recommendation is taken under advisement. I also agree with Her Honour that it is more complex when a work has been generally (but not specifically) helpful, or confirmed an opposite view. Moreover, it is important to note that the role of the courts is not to recognise academic work, and that in fact, there is no need to cite academic work at all for a judgment to be authoritative. As the Chief Justice says, the main role of a judgment is to give reasons for the resolution of a dispute between parties: no less, no more. If academic work helps with the resolution of that dispute, then it should be acknowledged, but if it does not, there is no need to divert into it. And it is certainly not the role of judges to elucidate legal theories unless they are relevant to the case at hand. Continue reading →

This week, one of the most-watched criminal cases in the nation’s history reached the apex court, albeit in a somewhat confusing way. As reported by journalists on Monday and confirmed on the Court’s webpage late on Tuesday, George Pell’s application for special leave to appeal from the Victorian Court of Appeal’s dismissal of his appeal against a jury’s verdict was listed for orders on Wednesday morning. In line with the Court’s current practice of determining most special leave applications ‘on the papers’, there was no oral hearing. However, while the other twenty or so matters listed for orders that morning had their applications dismissed without comment, Gordon J made the following statement in relation to Pell:

In this application, Justice Edelman and I order that the application for special leave to appeal to this Court from the judgment and orders of the Court of Appeal of the Supreme Court of Victoria given and made on 21 August 2019 be referred to a Full Court of this Court for argument as on an appeal. The parties will be made aware of the directions necessary for undertaking that hearing.

The media (understandably, in my view) initially reported that the High Court had agreed to hear Pell’s appeal. It was only when the transcript was published online that it became clear that something different had happened.

Justice Gordon and Edelman’s order was to have Pell’s application for special leave heard before an appeal-sized bench (either five or seven justices), rather than the usual special-leave-application-sized bench (two or three justices.) Continue reading →

An exception to the Court’s generally speedy resolution of cases before it in recent years is Daniel Love’s and Brendan Thoms’s challenges to their proposed deportations to Papua New Guinea and New Zealand. The pair, who are not Australian citizens but who each have an Australian parent, had their visas cancelled after they were convicted of (separate) harmful assaults in 2018. They argue that, because each identifies and is recognised as ‘an Aboriginal man’ (respectively of the Kamilaroi and Gunggari people), they fall outside of the federal parliament’s power to make laws ‘with respect to naturalisation and aliens’ and, accordingly, the scope of a federal statute requiring their removal from Australia. After commencing their actions respectively in September and December last year, they had cases ‘stated’ before the Court in January and March this year and were the subject of a joint Full Court hearing in May. But, six months later, the Court is yet to rule on their cases and instead has scheduled a further hearing in December. Until last Friday, all the public knew was that, three weeks ago, Love and Thoms issued fresh notices as required by federal law to alert Australia’s Attorneys-General of a ‘constitutional matter’.

Last Friday, we learnt that the Court wrote to the parties a month ago asking for submissions on a series of propositions that, if correct, would prevent deportation of, not only Love and Thoms, but anyone else who ‘an Aboriginal society has determined to be one of its members’. Continue reading →

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 →

At the year’s halfway mark, the High Court has made twenty grants of special leave to appeal, putting it on track to easily exceed last year’s low-point of thirty-five annual grants. The relatively chipper pace of grants so far (albeit still well off medium-term rates) is largely due to a bumper crop of nine grants – six in oral hearings and three on the papers – in May. The last time so many special leave applications were granted in a single leave cycle was a decade ago when the Court made eleven grants in a single day (12 March 2010.) Three of the new grants made this quarter are listed to be heard in August. That leaves the remaining twelve, plus one criminal matter granted leave in March, to be heard across the last third of 2019 (alongside any urgent or original jurisdiction matters.)

We can currently read the thirteen of the fifteen lower court decisions that the Court agreed to review in the past three cycles: Continue reading →

By Jules O’Donnell

What happens when a government decision-maker breaches a condition regulating the exercise of a statutory power? In what circumstances will an exercise of a power ­— for example, the issue of a licence, the refusal of a visa, or the seizure of property — be rendered invalid because of that breach? Alternatively, when is the breach considered a mere technicality?

In two recent cases, the High Court has revised the way it approaches these questions. Hossain v Minister for Immigration and Border Protection [2018] HCA 34, decided last year, established that administrative decisions are generally not to be invalidated on the basis of procedural errors that are immaterial. Put another way, immaterial errors are not, absent some contrary indication, jurisdictional errors. This proposition has been referred to as the ‘threshold of materiality’. Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, decided in March this year, confirmed that the plaintiff must prove that the breach in question was material to the outcome in order for the decision to be set aside.

In this post, I argue that the primary appeal of the threshold of materiality is that it gives system-wide minimum content to the concept of jurisdictional error. This is significant because the Court has generally resisted developing general norms in this area, instead insisting that jurisdictional error is strictly tethered to the statutory scheme in question. A more generally applicable standard of jurisdictional error could, in some cases, provide much needed relief to courts that must otherwise resort to contestable speculation about legislative purpose.

I also highlight two remaining uncertainties surrounding the materiality threshold. First, the Court has not yet provided a clear justification for why it applies. Its doctrinal precariousness leaves it susceptible to being overwhelmed by exceptions (a number of which have already been hinted at). Second, the plaintiff’s new burden of proof may introduce complexity to judicial review proceedings. New forms of evidence may now be admissible, and courts may be called upon to consider matters that are typically reserved for merits review Continue reading →

The High Court heard ten oral special leave hearings this month (with three grants, which I will summarise in my – now – quarterly grants post.) Of interest in the most recent batch is a phrase spoken at the end of eight of the ten hearings on Friday:

BELL J: Thank you, Mr Boyce, we do not need to hear from you.

BELL J: Mr Heaton, we do not need to hear from you.

BELL J: Thank you, Mr Boccabella. We do not need to hear from you, Mr McGlade.

BELL J: Yes, thank you, Ms Farnden. We do not need to hear from you.

GAGELER J: Thank you. We do not need to hear from you, Mr Crawshaw.

GAGELER J: Thank you, Mr Toomey. We do not need to hear from you, Mr Kirk.

GAGELER J: Thank you. Mr Lenehan, we do not need to call on you.

GAGELER J: Mr Walker, we do not need to hear from you, thank you.

This is the Court’s typical practice whenever it is minded to rule against one party after hearings its arguments, a practice it also follows in some full court hearings. It saves the other party the tedium preaching to the choir and permits the Court’s justices to get on with their busy special leave morning (or whatever they do in the afternoon.) As I noted in an earlier post, it is allied to a practice used in jury trials in England, Hong Kong and Australia that the Court declared contrary to law in this country last month, but it differs because judges hear arguments, not evidence, and do not require a direction on how to apply the law.

But it is surprising to see it featuring in contemporary special leave hearings, because the Court never has to hear special leave matters. Continue reading →

The just announced federal election on 18th May 2019 doesn’t directly affect the High Court of Australia (as opposed to the other two branches of the federal government) but it indirectly affects it in several ways. First, elections are often preceded by election-related challenges, as occurred in three of the last four elections:

• in 2007, the Court struck down legislation barring all prisoners from voting.
• in 2010, the Court struck down legislation removing the 7 day ‘statutory grace period’ allowing people to enrol after an election is called.
• in 2016, the Court rejected an argument that the 7 day statutory grace period should extend until election day and also rejected a challenge to the new Senate voting rules aimed at stopping preference harvesting.

Consistently with this trend, a directions hearing last week explored a narrow pre-election challenge concerning the 2019 election, specifically when the Australian Electoral Commission can release who it predicts are the two most likely candidates to win in each House of Representatives seats. A past lower house MP, Clive Palmer – you may have seen an ad or two by him recently – wants to bar such information from being released in some east coast seats when polls close there, because of the possibility that the AEC’s predictions could influence voting on the west coast where polls would remain open for two hours more. Justice Gordon tentatively scheduled a full court hearing for 6 May, under two weeks before the election but enough time for a speedy instruction to the AEC. However, whether the case will actually go ahead depends on whether the parties can agree on the facts and, as the Commonwealth Solicitor-General foreshadowed, whether Palmer himself or a lesser known person will be nominating for an east coast lower house seat.

However, the greatest impact of the federal election on the High Court is likely to come after the poll, when the Court sits as the Court of Disputed Returns to hear challenges to the announced election result. Continue reading →

This week, the United States Supreme Court heard its first case connected to a major true crime podcast- the superb second season of American Public Media’s superb anthology series, In The Dark – and seems likely to quash the result of the sixth trial of Curtis Flowers for a Mississippi multiple murder. Today, the High Court also heard its first case connected to a true crime podcast – the first of The Australian‘s efforts in the genre – and refused the Attorney-General special leave to appeal the NSW Court of Appeal’s ruling that NSW’s double jeopardy statute did not permit a retrial following the defendant’s acquittal on charges for multiple murders in Bowraville.

In the first quarter of this year, the High Court granted special leave to appeal in six cases: two in its February oral hearings, three in its March oral hearings and one grant on the papers. The cases the High Court will hear appeals from later this year are: Continue reading →

It is sometimes difficult to judge when enough is enough with unrepresented litigants. Anecdotally, when I worked as a litigator and in the court system, I observed that a fair proportion of unrepresented litigants possessed one or more of the following characteristics:

1. An obsessive fixation on their grievance;
2. A tendency to produce giant wads of documents in support of their claims (some of which are irrelevant);
3. A tendency to file documents which use quasi-legal jargon but from which it is very difficult to glean any real issues. Such documents also often have combinations of CAPITALS, underlining and bold text to highlight certain points;
4. A refusal to listen to advice on their claims, and a corresponding tendency to get angry when someone suggests that the claim is not valid; and
5. A tendency to generate conspiracy theories as to their lack of success.

However, there are occasional success stories, even before the High Court of Australia. For example, in the High Court case of Gambotto, the Gambottos represented themselves in a case involving oppression of minority shareholders, and were successful. Courts and lawyers can’t automatically write off litigants in person, because everybody deserves a chance to make their case. Consequently courts tend to be reluctant to declare someone a vexatious litigant (meaning that they are unable to file any further proceedings). In the High Court, this is achieved by a vexatious proceedings order made pursuant to s 77RN(2) of the Judiciary Act 1903 (Cth). Continue reading →

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 →

While the nation debates the verdict and sentencing of George Pell – topics that may perhaps reach the High Court one day – the Court itself has been working on a matter that will dominate Victorian news this afternoon: the identity of Lawyer X, the Victorian barrister who spent years speaking to the police about some of her criminal clients. Victoria’s Court of Appeal recently rejected Lawyer X’s last plea for that court to keep her identity secret (or, more precisely, off our TV screens and mainstream newspapers. However, her identity remained protected by an order made by the High Court’s seven justices when they threw out her earlier effort to keep her name from some of the nation’s worst criminals. That temporary order was due to expire on 5 February, but the Court extended it twice, t to 15 February and then to 12 April, without any (publicised) hearing or reasons. However, two days ago, the Court varied the order for (presumably) the last time, again without explanation. At 4.15pm today, she will become the Lawyer Formerly Known as X. (The 12 April date remains in place for the unusual secrecy around her court file and the earlier Court hearings in her case.)

Yesterday saw a further published judgment in the case from Nettle J (the High Court justice assigned to manage the whole case), giving Lawyer X her first court victory. Continue reading →

“[F]ew Australians outside the law schools are likely to be able to name the Chief Justice, let alone the puisne Justices of the High Court”, Justice Virginia Bell said in 2017. And she’s right, according to a survey of roughly 500 Australians performed later that year, now published in the Federal Law Review (open access draft available here.) Between 82 and 92% of the participants (all recruited by a market research company from existing panels) didn’t come within cooee of identifying the occupations of each of the seven current justices, with Kiefel CJ and Nettle J the best known and Edelman J the least, scoring no better than US Supreme Court Chief Justice John Robert, fictional US President Selina Meyer and 1960s Australian Chief Justice Owen Dixon. More Australians could identify the occupation of Judy Sheindlin (TV’s Judge Judy) than any current High Court justice. Several identified both Susan Kiefel and Virginia Bell as New Zealand’s Prime-Minister, Stephen Gageler as Australia’s Treasurer and Geoffrey Nettle as either a Victorian judge (which he once was) or the Governor-General (which he isn’t yet.) On the other hand, one respondent correctly identified Patrick Keane as the AFL’s (then) Media Relations Manager. More Australians thought the High Court had only one female judge than three, but – as in all the survey questions – many more said they just didn’t ‘know’.

The justices’ identities are one thing, but their work is another. Continue reading →

The High Court of Australia’s twitter account (@HighCourtofAus) had its first ‘tweet’ today, an announcement of the handing down of a judgment:

We were inordinately pleased to see this, as all permanent members of the blog use Twitter to a greater or lesser degree, and of course the blog has a Twitter account of its own: @opinionsonhigh. Consequently, it is a useful and convenient way of communicating information about when hearings will be held, and when judgments will be handed down.

Continue reading →

26th January 2019 marked not only the anniversary of Captain Cook’s the First Fleet’s settlement invasion of Australia but also the addition of various people to the ‘Order of Australia’, including nineteen new Companions of that Order, a group that now numbers over 500 Australian civilians. As well as singer Olivia Newton-John, tennis player Roy Emerson and children’s author Jennifer Rowe, the latest batch includes two sitting High Court justices:

The Honourable Justice Michelle Marjorie GORDON Parkes ACT 2600 For eminent service to the judiciary, and to the law, to legal education and judicial administration, as a role model, and to the community.

The Honourable Justice Geoffrey Arthur NETTLE Kingston ACT 2604. For eminent service to the judiciary, and to the law, to criminal and civil appeals reform, to legal education, and to professional standards.

Honours for sitting High Court justices are nearly always for ‘services to the law’ – and, since French CJ’s award, ‘for eminent service’ to either ‘the law and the judiciary’ (French CJ & Kiefel, Keane and Gageler JJ) or ‘the judiciary and the law’ (Bell J and, now, Gordon & Nettle JJ.) Justice Gordon is the first High Court justice to be cited as a ‘role model’.

This year marks the first time in three decades that two justices have been honoured in a single year. Continue reading →

The High Court granted special leave in five new cases this month, one on the papers and four at Friday’s oral hearings. That brings the total up to 35 grants for the year, the same number as in 2014, and hence equal to the lowest annual number of grants in the past decade.

The five new cases that the Court will hear in (roughly) the first third of next year are: Continue reading →

EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system

This week, the High Court published its reasons for judgment in AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58, among the first official words on the public record on a shocking Victorian legal scandal. While the central events of the scandal played out from 2005 to 2009, the High Court’s involvement arises from one of its aftermaths, concerning the question of whether the ‘Convicted Persons’ (Tony Mokbel and six of his associates) can be told about the findings of a suppressed 2013 report by Victoria’s anti-corruption commission. The main legal dispute before the Court was between CD (Victoria’s Director of Public Prosecutions), who wanted to tell Mokbel et al what the commission had found as part of its duty of prosecutorial disclosure and AB (the Chief Commissioner of Victoria Police), who didn’t want them told, because of the extreme danger the revelation would pose to both EF (simultaneously a barrister for Mokbel et al and an informer for Victoria Police) and to the future use of informers. In a separate action, EF also sought to stop the DPP from revealing her identity on the ground that doing so would be a breach of confidence. Also in the mix were the Commonwealth DPP (who would also have duties of disclosure to Mokbel and others), Victoria’s human rights commission (intervening to address the role of the state’s rights statute) and an amicus curiae, who was appointed to represent the interests of Mokbel et al (who in theory knew nothing of the proceedings until today.)

Aside from an interlocutory hearing before Nettle J and the announcement of two grants of special leave without an oral hearing, the High Court has revealed absolutely nothing about this case until now. Continue reading →

On Monday, I wrote:

The Court’s judgment in Strickland is a powerful (if controversial) step in the promotion of the rule of law and the right to silence, but it is only a penultimate one. Only when (or if) the Victorian courts finally lift their suppression orders will the Australian public be able to judge to nobility or villainy of the investigators, prosecutors and courts in this matter.

Yesterday, the Supreme Court of Victoria reportedly lifted the suppression order, prompting the media to write at last on the High Court’s ruling two weeks ago and reveal that it concerned a high profile scandal: the involvement of two companies with close connections to the Reserve Bank of Australia in the bribery (said to total some $50 million) of various foreign government officials. The effect of the High Court’s 5-2 ruling  is that four of the alleged conspirators, all former executives of Note Printing Australia, which produces polymer notes for the Reserve Bank, cannot be tried on charges of bribery and (for three of them) false accounting. The media reporting also reveals that the two companies themselves both plead guilty to bribery, resulting in fines and heavy pecuniary penalties, and that a number of people have been convicted and sentenced (in some instances to prison) for their role in the scandal.

The lifting of the suppression orders means that the original judgments of Hollingworth J, which do not use pseudonyms, are now available. And that means that the pseudonyms in the High Court judgment can now be linked to actual names Continue reading →

In a directions hearing on Wednesday, Gordon J rebuffed an attempt by Julian Burnside QC to avoid having a challenge to the Court’s 2004 Al-Kateb ruling heard in February (because he would be overseas) saying:

Well, the difficulty about it is twofold, Mr Burnside. One is that – and this is why they are insurmountable hurdles – this case, your client, has been in detention for a long time; that is the first. The second is that the Court’s workload in March and April is extraordinarily large and so, in the circumstances, the Court thinks that it would be in a sense the only opportunity and window to hear what I suspect is a one-day case in the second week of February.

This is the first indication from a High Court judge of the Court’s 2019 workload. What is not clear (to me, at least) is what the Court’s extraordinary workload in March and April next year will comprise. Continue reading →

Last Friday’s oral special leave hearing in Canberra received blanket coverage because of the appearance, in the list and in person, of Rebel Wilson, hoping to restore the defamation damages award that she lost in Victoria’s Court of Appeal. She failed, which is unsurprising, as most applications for special leave to appeal to the High Court are unsuccessful. Moreover, the Court is in the midst of downswing on  special leave grants, compared to: past Novembers (where there have always been at least three and up to eight in the past decade); past three monthly cycles (three in the past three months, less than half the previous quarterly low of seven in late 2014); and past annual trends:

On the other hand, Wilson was fortunate to be one of six matters heard orally  this month(compared to forty heard – and rejected – on the papers) and also to have the Court only dismiss her application after hearing both sides’ oral submissions (the only one of the four unsuccessful oral matters on Friday to be afforded that courtesy) and a four minute adjournment.

The two cases that beat the long odds to be granted special leave this month are appeals from: Continue reading →

Yesterday, the High Court allowed an appeal by four criminal defendants against a unanimous judgment of the Victorian Court of Appeal and set aside two orders made by that court. According to the judgment summary of the High Court ruling, a majority of the Court ‘ordered that prosecutions of the appellants for offences against the Criminal Code (Cth) and the Crimes Act 1958 (Vic) be permanently stayed.’ This means that the prosecution of the four defendants, whoever they are, for a number of federal and state offences, whatever they are, is over, for ever. The summary explains that all seven High Court justices found that one of Australia’s peak crime investigating bodies, the Australian Crime Commission, illegally allowed its extraordinary coercive powers to be used by another peak investigative body, the Australian Federal Police, to overcome the four defendants’ legitimate refusal to explain the possibly illegal activities of a (pseudonymous) company, XYZ Limited. According to the summary, a majority of the seven judges held that ‘in the circumstances of the case, to allow the prosecutions to proceed would bring the administration of justice into disrepute.’

This is an extraordinary ruling. The Court’s findings, especially if it turns out that the allleged crimes or criminals are high profile, would ordinarily be big news, both for the legal community and to the wider public. However, for now, suppression orders made somewhere – it’s a Victorian case – are preventing not only the naming of the defendants but also the release of the High Court’s reasons for judgment. Continue reading →

This October saw no special leave grants in the High Court of Australia, either on the papers or in last Friday’s oral hearings. The last time this happened in the High Court was nearly a decade ago, in August 2009, but that was surrounded by much more fertile months, including thirteen grants three months previously. By contrast, October’s fallow month follows a previous one with just one grant (in a relatively minor matter involving the statute of limitations applicable to local council applications to collect unpaid rates.) Unsurprisingly, this dry spell leaves the current count of special leave grants, 28, the lowest at this stage of the year in the past decade:

As this graph shows, November and December often add close to ten to that total, making it quite possible that the total grants by the end of 2018 will exceed 2014’s low point of 35 grants. However, it is unlikely that this year’s total will exceed last year’s of 40, itself the second-lowest of the past decade. Although the annual number of grants ebbs and flows, the recent trend is downward: from the mid- to high 40s to the mid- to high 30s.

Importantly, though, these regular hearings and scheduled determinations for considering grants of special leave to appeal (and some removals from lower courts) does not show the full story of the High Court’s case load Continue reading →

A week ago, Associate Justice Verity McWilliam of the ACT Supreme Court pondered a real-life law exam problem:

The plaintiff in these proceedings was born in a leap year, on 29 February 2000. She has been charged with committing certain criminal offences on 28 February 2018, being a common year (or non-leap year). The question on this judicial review application is whether, at the time she allegedly committed those offences, she was 17 and therefore a child at law, or 18 and therefore an adult.

To find that the plaintiff committed her alleged offences when she was (just) a child, McWilliam AJ distinguished not just The Pirates of Penzance but also a High Court judgment. In 1961, a majority of the High Court held that alleged car accident victim Charles John Prowse’s ‘coming… of full age’ occurred at the start of the day before his 21st birthday, citing a strange common law rule. As Dixon CJ explained:

In the anonymous case mentioned in argument in Nichols v. Ramsel the question was in a devise whether the testator was of age or not. The report says “and the evidence was that he was born on the first day of January in the afternoon of that day and died in the morning of the last day of December: and it was held by all the judges that he was of full age; for there shall be no fraction of a day”.

The result was that Prowse, who sued for negligence on the day before his 27th birthday, found his case (just) barred by a six-year statute of limitations that started after his majority.

Justice Windeyer’s judgment in Prowse commenced:

In measuring lapse of time the common law eschews metaphysics. Nevertheless some nice questions have arisen for the courts. In one of the first references to the topic, Dyer’s note of Thomas Somerset’s Case in 1562, it is said “ceo fuit un narrow pinche in le case”. There have been narrow pinches since then.

Continue reading →

In the middle of Wednesday’s criminal appeal decision by the High Court, The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 is the following remarkable paragraph:

[P]revious decisions of this Court have left unclear when and if a complainant’s evidence of uncharged sexual and other acts is admissible as tendency evidence in proof of charged sexual offences. That is due in part to differences of opinion between members of the Court in HML – and in subsequent tendency evidence decisions, most recently IMM – as to the rationale of admissibility of tendency evidence in single complainant sexual offences cases. It is unsatisfactory that trial judges and intermediate courts of appeal should be faced with that problem. It is also unsatisfactory that the issue should continue to be attended by as many complexities as have thus far been thought to surround it. The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.

And speak with one voice the seven justices did, issuing a unanimous joint judgment to resolve all of the many issues raised by the appeal. While unanimous joint judgments have become commonplace in the High Court of late, child sexual abuse appeals have been a notable exception, with narrowly divided decisions on the topic in 2001, 2006, 2008, 2012, 2016 and 2017, the last four with 4-3 splits.

Still more remarkable is that the Court’s new ‘one voice’ is at odds with the voices of five justices from just two years ago, including four current justices. Continue reading →

The High Court has now released its business list for its sitting in the middle two weeks of October.The delayed publication is likely due to the recent vacation of a hearing date for a trust dispute involving Gina Rinehart and the settlement of the constitutional challenge to the Murray/Darling Royal Commission, both cases that had previously been scheduled for hearing during those two weeks. Although there are eight matters listed, in reality there are only three the Court now says it plans to hear:

• Clubb v Edwards; Preston v Avery are two criminal appeals raising constitutional challenges to laws in the ACT and Victoria creating ‘zones’ around abortion providers that bar some sorts of behaviour. The cases are high profile ones with seven Attorneys-General intervening and four further parties recently given leave to act as friends of the court.
• Grajewski v DPP (NSW) likewise concerns the law about protesting, but here it is the statutory interpretation issue of whether the action of a person suspending himself from machinery counts as the offence of damaging property.
• ASIC v Lewski; ASIC v Wooldridge; ASIC v Butler; ASIC v Jaques; ASIC v Clarke are civil penalty proceedings against five directors of a failed aged care and retirement trust concerning whether they breached their duties when they amended the trust’s constitution.

The recent changes mean that one constitutional case has been replaced by another, and Grajewski has replaced Rinehart, leaving the scheduled workload unchanged at three cases. While three matters in a sitting is notably fewer than usual, it does happen occasionally. Indeed, it happened last October, when the Court spent its first sitting week hearing the Citizenship 7 case, and its second hearing two quite short matters.

The scheduling of the coming October sitting is more unusual, however. Continue reading →

When he isn’t penning legal advices for the ALP on the possible disqualification from parliament of prospective Prime Ministers, Bret Walker SC is currently in charge of the Murray/Darling Basin Royal Commission. Established by the previous government of South Australia in January this year, this state-based inquiry into a Commonwealth-administered scheme raises some difficult questions about the interaction between state investigations and the federal government. Unsurprisingly, this June saw a directions hearing on the question of whether or not Walker can apply his statutory powers (including powers to search premises, demand documents and jail non-compliant witnesses for contempt) to the Commonwealth and relevant federal entities and officers (and also interstate residents.)

Alas, for those who wanted to see these issues explored, and most likely for the Roysl Commission, the case of Commonwealth v Walker is no longer before the High Court. Continue reading →

Two-thirds of this sitting’s six special leave grants concern cases on federal commercial statutes, with the remainder involving the balance between judges and juries. The six cases that the Court will hear later this year are: Continue reading →

The High Court’s return from its winter break includes a slight, but important, change in the Court’s sitting practice. Each of this week’s main sitting days has commenced at 10am, rather than the usual 10.15am. Chief Justice Kiefel explained the purpose of the early start yesterday:

The parties would be aware in accordance with the new trial practice we will be adjourning at 11.15 for 15 minutes.

While no explanation was given for the mid-morning adjournment, its utility is obvious. Perhaps coincidentally, the change follows an impromptu ‘short adjournment’ of six minutes during a June matter, after the defendant’s counsel, called on to address the court 102 minutes into the morning session, sought ‘the indulgence of the Court of a brief comfort break’.

Otherwise, however, yesterday’s Court was not in a generous mood.  Continue reading →

It seems that the High Court’s extraordinary run of cases on the qualifications of federal MPs has ended at last, with no new referrals in (or likely to be added to) the pipeline. Nevertheless, the very first of this term’s thirteen referrals is now back before the High Court. Yesterday, Kiefel CJ heard an application from Rob Culleton to reopen his referral (which led to his disqualification) on the basis that the Senate lacked quorum when it sent his election to the Court of Disputed Returns. The relevant Hansard reads:

I just raise—and I may be out of order—that I spoke to Senator Culleton a few minutes ago and he indicated to me in very broad terms that he was looking at seeking leave to move an amendment. I wonder, out of fairness to him, if that is what he is still intending to do, whether we ought to draw attention to the state of the chamber. I just do not want to be seen as being unfair to Senator Culleton. I want to be fair to the man.
The PRESIDENT: Thank you, Senator Xenophon. You have drawn to my attention that he chamber may not be quorate, so we shall bring the bells. (Quorum formed)

(As it happens, both parties to this conversation, Senators Xenophon and Parry, were later the subject of their own referrals!) Apparently, parliamentary video shows that there were fewer than the required 19 senators present when the chamber voted to refer his position to the Court of Disputed Returns, some three minutes later.

So, what should the High Court do? Continue reading →

Yesterday’s four judgments from the High Court broke with some recent patterns in the Court’s reasons. In one case, involving a compensation claim for lost pensions due to an early death, two judges dissented. That is only mildly unusual, but the dissenting judges’ identity is much more surprising. Chief Justice Kiefel gave her first dissent in over two years, while Keane J gave his first in over a year. It’s been over three-and-a-half years since the only previous matter where both judges dissented, a 2014 case about patent extensions. In a different break with recent tradition, two of the three other unanimous cases had separate concurrences. Again, the identities are the surprise. The main judgment in each case was from Gordon & Edelman JJ,  while the Court’s most routine joiners, Kiefel CJ, Keane & Bell JJ, gave concurrences, yielding one case with three judgments and (in a first, and perhaps last) a Nauru case with a concurrence.

Yesterday’s concurrences are consistent with a recent presentation at the ANU by James Lee, a Reader at King’s College London, Continue reading →

Last week, the High Court hosted a directions hearing before Nettle J for a coming appeal concerning compensation for loss of native title. The native title in question is around Timber Creek, in the northwest of the Northern Territory, but the hearing was held in Melbourne, some 4000km away. Its main purpose was to make orders about who can see gender-specific evidence relevant to the case, as outlined in this earlier post. Justice Nettle held that the evidence can be seen by the seven High Court justices (male or female), court staff (including associates) who any justice determines can hear the evidence (again, male or female), lawyers and experts who need to view the evidence (but only if they are men) and anyone else (but only with a court order after notice to the parties.) In passing, he noted that the case would be heard before all seven judges of the Court.

At the hearing’s conclusion, Nettle J made a further announcement:

Finally, lady and gentlemen, I should announce that subject to final confirmation, which will not be before the second week of June, it is intended that the appeals be heard in Darwin in the Supreme Court of the Northern Territory on 3 to 6 September of this year.

Continue reading →

In Friday’s oral hearings, the High Court granted leave in four matters in Sydney (and none in Melbourne), but that is only the half of it. A week earlier, the Court also granted leave in four matters on the papers. Two are immigration matters (concerning anonymised applicants, as usual) while the others are… well, who knows?:

12. AB v CD & Ors (M183/2017)

13. EF (a pseudonym) v CD (a pseudonym) & Ors (M185/2017)

The published registry list does not name the lower court judgments that are under appeal. We don’t know who any of the parties are (though we know that at least CD and EF aren’t their real names.) We don’t know what either matter is about. We don’t know what the issues are. We don’t know why they’re secret. We don’t know if the two cases raise the same or different issues. As usual (for matters dealt with on the papers), we don’t know why they were granted leave. The brief special leave transcripts disclose a smidgen more in their titles, revealing that AB and EF are respectively parties for the actions they aren’t named in, and that the federal Director of Public Prosecutions and Victoria’s human rights commission are parties in both. And maybe (or maybe not) there’s a connection to a High Court transcript from late last year of a directions hearing before Nettle J between all the same parties, where ‘AB ‘was represented by Victoria’s government solicitor, ‘CD’ (the first respondent in both matters) was represented by Victoria’s solicitor for public prosecutions and ‘EF’ was represented by a commercial law firm.

All will eventually be revealed. Or will it? The same day it granted leave to those two cases, the Court held a final hearing in a matter (also from Victoria, Australia’s suppression order capital) involving four pseudonymous people facing federal prosecution for charges that are secret. At least in that case, we can read the judgment below and the parties’ submissions so that we know what the general issues are. Perhaps something similar will happen with the mysterious dispute between AB, CD, EF and co. But, for now, I can only summarise three-quarters of the matters where Australia’s apex court granted leave this month. Sometime later this year, the Court will hear appeals from the following six, published decisions: Continue reading →

Yesterday’s decision by the High Court (sitting as the Court of Disputed Returns) in Re Gallagher means that there will have to be a recount of Territorians’ votes in the 2016 federal election to determine a new (hopefully eligible) Senator. Such recounts are relatively cheap things, as they are done electronically. The same is not true for the four by-elections that the decision’s reasoning indirectly prompted after four lower house MPs resigned. By-elections cost around $2M each. Together with the three other by-elections prompted to date and the $11.6M identified as post-budget  ‘legal expenses – constitutional matters’  December’s mid-year statement, the cost to taxpayers of the dual citizenship issue so far as roughly $26M. These costs can’t, of course, be attributed to the High Court – the mere umpire in these matters.

But Tuesday’s annual budget – somewhat overshadowed by yesterday’s decision and its aftermath – reveals more about how much the High Court costs taxpayers. Continue reading →

I love portraits: one of my favourite galleries is the National Portrait Gallery in London. In Australia, we have the Archibald Prize, an annual award for the best portrait, ‘preferentially of some man or woman distinguished in art, letters, science or politics, painted by any artist resident in Australasia’. It is judged by the Trustees of the Art Gallery of New South Wales.

This year, Kiefel CJ’s portrait, painted by Yvonne East, is among the 58 finalists. Continue reading →

The April sittings saw the High Court rejecting all of the special leave matters heard on the papers, including Valve’s high profile argument that its Steam gaming platform is not subject to the Australian Consumer Law. But the Court granted half of the (six) matters it heard orally on Friday, all criminal appeals, including one on the topical question of how to establish whether or not cannabis found at someone’s home was harvested from two plants.

The three cases that the Court will visit on appeal are: Continue reading →

Nearly four weeks ago, on Tuesday 13th March, the High Court’s jurisdiction apparently shrank. We know this because the media has reported that the High Court registry informed parties to a criminal matter in Nauru (which had previously reached the High Court last October) that:

The agreement between Australia and Nauru that gave the High Court of Australia jurisdiction was terminated as at 13/3/18.

The agreement in question is a treaty between the governments of Australia and Nauru signed in 1976, around six years after Nauru’s independence from Australia. Article 1  of the treaty states that ‘appeals are to lie to the High Court of Australia from the Supreme Court of Nauru’ in some cases. Article 6.1 provides that ‘this Agreement shall continue in force until the expiration of the ninetieth day after the day on which either Government has given to the other Government notice in writing of its desire to terminate this Agreement’. So, presumably, one government gave the other notice on or about Wednesday 13th December 2017, which happens to be the date of the High Court’s most recent judgment on Nauru law (ruling that Nauru’s immigration authorities denied procedural fairness to an asylum seeker transferred to Nauru in 2013.) Continue reading →

This morning, the High Court ended Eddie Obeid’s formal challenge to his conviction for misconduct in public office, refusing the former MP special leave to appeal to the nation’s apex court. He wasn’t alone in being disappointed. There were just six matters listed for oral hearing today (compared to thirteen a month ago) and only one application was granted) compared to six a month ago. On the other hand, the Court had already granted special leave in two matters on the papers this Wednesday, albeit out of around fifty dealt with without a hearing.)

The three cases where the Court will hear appeals some time this year are: Continue reading →

At the start of Friday’s hearing of an application for leave to appeal Australia’s first contested determination of compensation for loss of native title, Nettle J made it clear that he and Gordon J saw the topic as clearly deserving attention from the High Court:

Ladies and gentlemen, our present inclination, which is plainly tentative, is to think that the matter raises questions of principles of general importance which would warrant the grant of special leave.

Not only did Western Australia’s Solicitor-General Peter Quinlan fail to convince the Court that the case was a poor one for testing those principles (because the Northern Territory didn’t rely on a statutory rule limiting compensation), but he seemingly opened up a major new issue for the Court to consider: whether extinguishing native title is a deprivation of property for the purposes of the Constitution’s requirement of just terms compensation. The Commonwealth’s counsel Stephen Lloyd cited that issue (which he said would likely attract interventions from every state and territory) as well as the twenty regular appeal grounds now before the Court as reasons why the usual limit of twenty pages per party for submissions on appeal should be lifted to eighty or more, and why the full court hearing would take some four or five days. Calling the latter estimate ‘a little alarming’, Nettle J raised the page limit to fifty and told the parties to find a way to limit the hearing to three days.

Buried in the transcript is a further, relatively minor, but quite unusual issue the High Court will now encounter. Lloyd drew the Court’s attention to:

some secret men’s evidence that was confidential before Justice Mansfield. Different orders were made in relation to that to go to the Full Court which only allowed female judicial officers to see it – no other females have been allowed to see it so, no other court staff or the like.

Continue reading →

Last Wednesday, the High Court conducted an unusual sitting, where two ‘full court’ (two or more judge) benches heard final appeals simultaneously in separate Canberra courtrooms. This joint sitting is the product of two oddities: first, the High Court’s rare role hearing appeals from a single judge court, the Supreme Court of Nauru (allowing the Court to sit unusual three judge benches); and second, a recent uptick in such appeals. However, these may be amongst the last such sittings. Three weeks ago, at Nauru’s 50th anniversary of its independence in 1968, Nauru’s President Baron Waqa reportedly told the national parliament of a plan to terminate the High Court’s role:

Severance of ties to Australia’s highest court is a logical step towards full nationhood and an expression of confidence in Nauru’s ability to determine its own destiny.

Continue reading →

After rejecting twenty–seven special leave applications on the papers in recent weeks, the High Court granted over half of the applications in today’s oral hearings. Several of the cases raise major points of principle with significant commercial implications: compensation for loss of life, arrangements for near bankrupt companies, compensation for native title and the tax valuation of mining companies. In some instances at least, these are balanced by human elements. Notably, in one sad matter – involving the question of compensation for a shortened life expectancy – the transcript reveals that the defendant volunteered to pay the plaintiff’s High Court costs (on both appeal and cross-appeal) and that that the High Court offered to hear the matter speedily this April in light of the plaintiff’s deteriorating condition.

The six new matters that will proceed to the High Court’s appellate jurisdiction are: Continue reading →

The High Court entered its summer holiday having fully resolved nine matters in the Court of Disputed Returns concerning the 2016 federal election in four full court judgments, one each concerning one of the five disqualifications for federal MPs set out in s44 of the Constitution:

Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

(iii) is an undischarged bankrupt or insolvent; or

(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Re Canavan resolved seven challenges under ground (i) (dual citizenship), Re Culleton No 2 a challenge under ground (ii) (criminality), Re Nash No 2 a follow-up challenge to one of the successors of one of the Citizenship 7 under ground (iv) (office of profit under the Crown) and Re Day No 2, a challenge under ground (v) (pecuniary interest.) (Ground (iii) on bankruptcy has only been considered once by the High Court, three decades ago.)

However, the Court began this year with six more election challenges on its books. While no major judgments have since been published, there has been a lot of activity and plenty of diversions in these matters in recent weeks. So, where are they now? Continue reading →

Last Friday, Kiefel CJ kicked off the High Court’s public work for 2018 with a directions hearing on the latest two referrals of MPs who were or are possible dual citizens. As occurred previously with Senator Malcolm Roberts, it is clear that both of these references will require first resolving factual (in addition to legal) disputes, including disputes about the meaning of overseas (UK) law. However, when the Commonwealth Solicitor-General told the Chief Justice that both London experts in Senator Katy Gallagher’s referral were available to appear by video link on Monday 29 January, she responded:

Mr Solicitor, I do not suppose the experts have been asked to consider the availability of dates further down the track, so to speak, in advance? I say that for this reason. The Court is of course aware of the need to determine these matters as soon as possible but there is a limit to its ability and its preparedness to do so in relation to these references when they keep coming in and to treat every matter, every reference, as one of extreme urgency.

Ruling out scheduling a hearing ahead of the Court’s coming February sitting weeks, she suggested a date in the second of those weeks, noting that the Court will then be dealing with smaller bench matters (presumably a bundle of appeals from Nauru.) However, it is not clear that her proposed timing will work Continue reading →

In its final week of formal sittings, the High Court granted special leave in five matters (one on the papers, four in oral hearings in Sydney and Melbourne), taking the total of 2017’s special leave grants to 43.

The five cases that will be appealed to the High Court sometime in the first third or so of 2018 are: Continue reading →

A month or so after the last federal election, the judges of the High Court decided that the High Court’s ‘summer recess begins on Saturday 16 December 2017.’ A year later, the current judges settled on ‘Monday 5 February 2018’ as the Court’s first sitting day for next year. The dates in between are the summer holiday for the High Court (and its bar), a tradition not limited to Australia’s apex court. US Chief Justice John Roberts, in his previous role as a counsel in the Reagan Government, criticised the Court he would later lead for sitting too few weeks to handle its workload, writing ”it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off’ and semi-joking: ‘we know that the Constitution is safe for the summer’.

It turns out that the Australian Constitution is not so safe for this coming summer. Continue reading →

As the High Court presumably braces for its next ‘job lot‘ of s. 44 cases, it has also added a relatively small number of new cases to its regular docket. While all special leave applications heard on the papers were rejected this month, the Court granted leave in Friday’s twin oral hearings in three matters. One grant is a rare (and welcome) instance of the High Court intervening in a criminal proceeding that has not yet gone to trial, in this case a very long running prosecution of four defendants on federal charges. The fact that the trial is yet to occur may (or may not) explain why the four are only referred to by pseudonyms and that the charges in question are not identified.

The three cases that will now be appealed to the High Court are: Continue reading →

This Wednesday at 10.05AM, Australians at last saw an end to the marriage law survey, the indirect product of the High Court’s 2013 decision declaring the ACT’s Marriage Equality Bill inoperative and the High Court’s September decision upholding the government’s instruction to the Australian Bureau of Statistics to perform the survey. Marriage equality is now exclusively a matter for the politicians Australians elected in 2016. But, as a decision from the High Court five hours later makes clear, the 2016 election is still ongoing and doesn’t look like ending any time soon. This time the High Court held that nominee Hollie Hughes was ineligible to be declared elected, because she took a position in the Administrative Appeals Tribunals (an ‘office of profit under the Crown’) during the 15 months that ineligible dual citizen Fiona Nash purported to take her spot in the Senate. This especially startling instance of the Court’s ‘brutal literalism‘ (when it comes to s44) will undoubtedly lead to more questioning of whether some of the people currently sitting in Parliament were actually elected.

The requirements of s44 are challenging, not just to MPs and nominees, but also to the media, which faces the difficulty of reporting on its content and the various processes for testing it. On Wednesday, the media were not assisted by the Chief Justice, Continue reading →

Apologies to all readers for the strange display issues. This change happened automatically a few days ago, and seem to be part of either a WordPress or University of Melbourne blog platform update that we were not told about, and did not approve. Unfortunately due to the University’s platform restrictions we also cannot manually change the theme at the moment. We are aware that the page is not functioning properly and is not easy to read, and that the pictures of cacti don’t make a lot of sense. Rest assured we hope to fix this and revert to the old theme shortly.

The United Kingdom’s Supreme Court is not shy about changing course on major legal issues, such as complicity law and (just last week) state immunity. On Wednesday, it dropped another criminal law bombshell. The case in question was a civil dispute between a champion poker player, Phil Ivey, and a London casino, on whether Ivey was entitled to 7.7 million pounds he seemingly won at Baccarat over two days. The issue was whether Ivey’s method, which included tricking the croupier into turning particular cards around and then making plays by relying on his ability to tell which cards had been turned from the pattern on their back, was cheating. The Court upheld lower court rulings in favour of the casino, surprising those who thought it took the case to hold that Ivey’s (undisputed) belief that his play was an honest ‘advantage’ one meant that he was no cheat . Instead, the Court not only found for the casino, but overturned the 1982 Court of Appeal decision, R v Ghosh, that held that criminal dishonesty requires proof that the defendant knew others would regard his or her actions as dishonest. The Supreme Cuurt’s ruling not only reversed thirty-five years of English theft and fraud law, but also seemingly left Ivey to prosecution for criminal cheating (not that any such prosecution is on the cards.)

While Ghosh‘s many fans in the academy are currently working their way through the five stages of grief, some Australian High Court judges may be feeling quite different emotions. Continue reading →

At last Friday’s oral special leave hearings, it was easier to ask which cases didn’t get special leave. There were just two and they were both quite interesting – a NSW decision upholding a high-interest short-term loan (now $670K plus $2.4M interest!) even though the lender (correctly) believed that the borrower had fallen for a Nigerian fraud scam; and a Victorian holding that a pregnancy the military failed to detect is not a ‘service injury’ (and therefore is not limited by a statutory military compensation scheme.)

The five new appeals that made the grade were: Continue reading →

On 14th June this year, the High Court heard a Crown appeal against an incest sentence, an appeal that turns in part on a practice of Victoria’s Court of Appeal. Since 2007, the Victorian Court has sought submissions and made rulings on the topic of ‘current sentencing practices’ in particular classes of case, simultaneously with but separate from resolving particular sentencing appeals. A year ago, the Court of Appeal ruled that sentencing practices for incest were too low, but also dismissed a Crown appeal about a particular incest sentence. In his written submissions on appeal, Victoria’s Chief Crown Prosecutor said:

It is not apparent that any other State or Territory in Australia struggles with the question of consistency of sentencing in quite the manner experienced in Victoria. It is respectfully submitted that the correct role to be played by “current sentencing practices” should be decided. From what appears above, it might be said that there is not a united position in the Victorian Court of Appeal on the issue.

In the High Court hearing, he used sharper language, describing the Victorian approach as ‘inimical’ and ‘not permissible’. One exchange went like this:

KEANE J: But as I understand it, it seems to be said against you that the Director somehow accepted that there was this limit on the appeal and that the result is essentially something for which the Director is responsible.

MR SILBERT: Your Honour, this has been going on for something like 10 years. The Director has no option, when requested to make these submissions, but to make them. When the court refers to an uplift the Director cannot simply say, “I refuse to be involved in this uplift.” If the Director is lodging an appeal on the basis of manifest inadequacy he has to go along with it or else he has no basis for appealing. So it is a procedure that is imposed by the court and has been for something like 10 years. It has actually never been used by the Director effectively, I do not think, to produce any result in any concrete case.

There are dicta that emanate from various cases where the court considers this uplift and says well, sentencing is inadequate, and they have said it here, but they do not determine the dispute in issue between the parties. There is obiter, as referred to by Justice Ashley in Ashdown, that emanates from these discussions but they are more philosophical discussions than disputes between the Crown and an accused. The Crown is not complicit in the exercise – it did not invent the exercise – and it is dragged kicking and screaming into each one of these contests. I do not know whether that answers your Honour’s question.

KEANE J: It just does seem odd.

On Wednesday, the High Court unanimously upheld the DPP’s appeal, drawing on its recent ruling in Kilic (on the relevance of the maximum sentence) and holding that the decision to uphold a sentence that was based on then current, but wrong, sentencing practices, was ‘an error of principle’. Indeed, the plurality concluded that it ‘might’ be that the Court of Appeal’s practice ‘is inconsistent with [Victoria’s] Sentencing Act’.

The publication of the judgment coincided with the release by News Ltd of letters between Victoria’s then Chief Justice and Victoria’s Director of Public Prosecutions. Continue reading →

The High Court’s most recent grants of special leave consisted of two immigration matters granted ‘on the papers‘ and two other matters granted after oral hearings in Sydney.

The four cases that will now be appealed to the High Court are: Continue reading →

After a lengthy break for renovations (and rare full court hearings in Sydney and Melbourne), the High Court will return to its Canberra headquarters next month. The first case on the business list for Tuesday 10th October is:

In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Matthew Canavan, Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts and the Hon. Barnaby Joyce MP (C11/2017, C12/2017, C13/2017, C14/2017 & C15/2017)

These are five of the seven matters referred to the High Court concerning possible ineligibility under s44(i) of the Constitution, specifically its disqualification of ‘a citizen… of a foreign power’. It is likely that the remaining two matters (concerning Senators Nick Xenaphon and Fiona Nash) will  be heard at the same time. (An eighth pending matter about MP eligibility – Labor’s challenge to David Gillespie over his ownership of a shopping centre company with Australia Post as a tenant – is not yet listed and involves entirely separate issues and processes.)

The seven matters to be heard in October aren’t regular High Court challenges where one person sues someone else. Continue reading →

Last week, the federal Parliament released a large set of documents from 1986’s ‘Parliamentary Commission of Inquiry’ into the conduct of High Court justice Lionel Murphy, which ended without resolution after the sad news broke of the judge’s imminent death. Justice Murphy’s family have strongly objected to the release, noting that the papers include many wholly unsubstantiated allegations and that there is now no possibility of them being formally investigated; instead, the papers can only contribute to the much more ambiguous judgement of history. None of the allegations relate to Murphy J’s actual work as a High Court judge, but instead are concerned with his alleged activities off the bench (albeit ones that may have led to his resignation or removal from the Court.)

An arguable exception is what is known as ‘Allegation 39‘, Continue reading →

The High Court’s current rectification works at its Canberra headquarters are said to be urgent, but foreseen. The Court could not have foreseen that they would coincide with a series of urgent, high profile cases that may determine the future of the present government. This week’s hearing into the legality of the same-sex marriage postal poll takes place in premises that have never before held a major hearing and are ill-suited to housing so many judges and barristers, let alone journalists and interested members of the public. The Court’s current Melbourne home, on Level 17 of the Commonwealth Courts building above Flagstaff Station, has just a single modest sized courtroom designed for special leave applications, and an even more modest lobby. The Federal Court warns its users:

It is anticipated that there will be delays through security screening at Commonwealth Law Courts building in Melbourne over the next few days. This is due to the High Court sitting in Melbourne over September and the expected increase in visitor numbers to the building. Please allow extra time for screening ahead of your court event.

The High Court’s contribution is to permit its hearing to be  ‘broadcast to‘ a second courtroom on Level 8 of the same building, one usually used for Federal Court hearings (and the odd lecture.)

This isn’t a first – the Court has previously had overflow facilities for high profile cases such as the Gerard Baden-Clay appeal in Brisbane. An apparent first is the Court’s permission for live tweeting to occur in the overflow room, presumably because there is no possibility of the arguments being interrupted by a ringing phone. Video and audio recordings, and photographs, remain forbidden.

This week’s hearing is also a significant event in the history of the Court, Continue reading →

Thursday morning’s directions hearing relating to the possible of ineligibility of sitting federal MPs due to their possible dual citizenship began with a series of ‘determinations‘ by the Kiefel CJ under this section of the Commonwealth Electoral Act:

The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this Part to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.

Most actions before the High Court have two clear parties, because one of the parties starts the action and names their opponent. By contrast, the present five (and counting) applications are just ‘questions’ referred to the Court of Disputed Returns by parliament, and the Court needs to work out who (if anyone) will actually be making arguments. Hence, the Court itself advertised the references on its webpage and called for submissions from prospective parties. Kiefel CJ then determined who were the lucky (or unlucky) parties for each reference, for example:

In relation to the reference concerning Mr Ludlam, the orders of the Court are: The following persons shall be allowed to be heard on the hearing of the reference and shall be deemed to be the parties to the reference pursuant to section 378 of the Commonwealth Electoral Act 1918 (Cth): (i) Scott Ludlam; and (ii) the Attorney-General of the Commonwealth. Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be heard by the Court. The submissions of Joe Bloggs, Deearne Gould, Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be received by the Court and will not be taken into account on the hearing of the reference.

Senator Scott Ludlam was the first of the five MPs whose dual citizenship became an issue. He has since resigned and, according to the Commonwealth Solicitor-General, isn’t going to argue that he was ever eligible to be a Senator. However, Kiefel CJ said that she wasn’t willing to resolve his position separately from the rest, so he became a (unwilling?) party, as did the Commonwealth Attorney-General (who said he won’t necessarily be arguing either way on Ludlam’s eligibility.) But Kiefel CJ rejected nearly all the remaining hopefuls, including barrister John Cameron (who revealed Ludlam’s dual citizenship) and the ubiquitous ‘Joe Bloggs’ (who made submissions on all five candidates.) The Chief Justice’s detailed reasons for these determinations (if any) have not yet been published.

The remainder of Thursday’s hearing was devoted primarily to setting a date for the hearings, although that was quite complex. Continue reading →

On Friday’s oral special leave hearings, the High Court added three new cases to its docket, while rejecting leave in a high profile matter, former army reservist, Bernard Gaynor, whose sacking by the ADF over anti-gay and anti-Islam views he posted online will accordingly stand. However, in the week after June’s oral hearings, the High Court granted leave on the papers in a connected set of five disputes concerning the powers of state tribunals, which include an anti-discrimination complaint against Gaynor over his alleged anti-homosexual remarks.

The four matters that can now be appealed to the High Court are: Continue reading →

On 12th September 1996, a 4-2 majority of the High Court struck down a NSW law that applied to only one person:

Gregory Wayne Kable is the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable.

The law allowed a Supreme Court judge to detain Kable (and only Kable) for six months at a time, if the judge thought that Kable was still a danger to the community. Today, nearly twenty-one years later, the High Court unanimously rejected a challenge to a Victorian law that applies to only one person:

In this section a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.

That law forbids Victoria’s parole board from ever releasing Knight (and only Knight, who perpetrated 1987’s Hoddle St Massacre), even if the parole board thinks he is no danger to the community. Kable’s law was struck down because it placed his freedom in the hands of the courts. Knight’s was upheld because it left his freedom in the hands of no-one at all.

When Kable was decided in 1996, some hoped it was the start of judicial scrutiny of laws that sought to impose punitive outcomes by unjust means Continue reading →

Take a moment to consider the workload of the Commonwealth Solicitor-General, Stephen Donaghue, now seven or so months into his job. On Monday and Tuesday, he argued the Commonwealth’s position before the High Court in Brisbane in a horrendously complex proceeds of crime matter, an appeal from a 1275 paragraph Queensland  judgment. He (presumably) spent last weekend advising the Prime Minister on the potential disqualification of his deputy under s44(i) of the Constitution, advice Turnbull cited in Parliament on Monday. And last Friday, he represented various Commonwealth parties being sued in two actions over the proposed poll on same-sex marriage in a directions hearing before Kiefel CJ. Donaghue’s busy long weekend is one sign of how the recent whirlwind in federal politics will soon descend onto the High Court, which has only just returned from its winter break and is still unable to work in its renovations-affected Canberra home.

The High Court last ruled on an issue of same-sex marriage in 2013, Continue reading →

The recent resignations of Senators Ludlam and Waters mean that the following provision of Australia’s constitution is having a moment:

44 Any person who: (i)  is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Despite some comments to the contrary, the issue is not one of foreign ‘allegiance’ – no-one seriously thinks the two ex-Senators owed, much less acknowledged, an ‘allegiance, obedience or adherence’ to New Zealand and Canada. Rather, the issue is their foreign citizenship. Both Ludlam and Waters are foreign citizens by birth, despite moving to Australia as very young children and quickly obtaining Australian citizenship. Their resignations have prompted some debate about the appropriateness of s44(i). For instance, it is startling that both Senators could now readily become MPs in the parliaments of their respective birthplaces without relinquishing their Australian citizenship.

While the media discussion of s44(i) has centred around its text and the slim possibility of a referendum, Australia’s High Court has also played a key role in the lead up to this situation. Continue reading →

Melbourne-based readers of the blog may be interested to know that the Victorian Supreme Court will be opening the Melbourne Old High Court building on 30 July from 10am to 4pm as part of the Open House Melbourne Festival. In addition from 2 – 2:30pm, there will be a talk on the architecture and history of the building by Robin Grow, an expert in Art Deco architecture, and Joanne Boyd, the Supreme Court Archives and Records Manager. This post outlines some of the significance of the building, with a quick dip into significant constitutional cases for those who have an interest in such matters. [Update: for a fascinating personal insight into his role in ensuring the Supreme Court made use of the Old High Court and the decision-making process with regard to the crossover between the Supreme Court and the Old High Court see Hon. Philip Mandie’s comment on the post.]

Image taken by Heather Turk

Continue reading →

The High Court has handed down two important cases on rectification of building works, each of which suggest that the court places a high value on rectification. However, as discussed below, I could not have guessed that the High Court’s passion with regard to building rectification may have stemmed from its own experience. [Post corrected below]

Continue reading →

Two weeks ago, I ‘live tweeted’ a hearing at Victoria’s Court of Appeal, sending out roughly 115 tweets in around an hour (‘storified’ here) of discussions about alleged contempt by three Ministers.  It was my first try at live tweeting and the tweets were well received and distributed – and, it turns out, wrong. At last Friday’s hearing, a court officer told me that the use of mobile phones (or even having them on) is forbidden in Victoria’s Supreme Court When I  asked if that included live tweeting, he told me that if I ‘argued any more’, I’d have to leave. It turns out, though, that there is a rule on live tweeting by ‘members of the public’ set out on the Court’s website:

Accredited journalists may use electronic equipment for the publication of material on the internet (blogging, twittering and similar)…. Non-accredited journalists, free-lance writers, ‘citizen journalists’ and members of the public need to seek permission from the trial judge for the use of electronic equipment in Court.

Alas, this rule is cleverly hidden away. While court visitors who consult the website’s instructions on ‘court etiquette‘ are simply told to ‘turn off all mobile phones and other electronic equipment’, those seeking the process allowing them to live tweet must first click ‘contact us’, then ‘media centre’, then a link that directs ‘members of the media’ to a document titled ‘media policies and practices‘, which has  a heading – ‘journalists using electronic equipment in court’ – where the above discussion is buried in the middle (behind a sign that says ‘beware of the leopard’.) How visitors are meant to seek permission to live tweet appeal proceedings, particularly urgently scheduled ‘mentions’ such as those about contempt, is anyone’s guess.

So, what is the policy on live tweeting High Court proceedings? Continue reading →

UNSW Law Journal has now released the video of Bell J’s keynote speech at the launch of its thematic issue on ‘The Individual Judge.’ Pleasingly, this was certainly no puff piece. Beyond praising the journal’s ‘honoured place’ amongst peer-reviewed law journals and describing the issue as ‘very readable and stimulating’, she didn’t (unless I missed something) have a single good thing to say about any of the papers inside it. Indeed, she strongly criticised several and threw in some critiques of academic writing on the Court’s 2013 Monis decision to boot. Her language was forceful and full of humour, and many of her arguments were persuasive. All of this, in my view, is a powerful example of everything we lose when each High Court judge’s individual voice is submerged in anonymous and depersonalised joint judgments.

Unsurprisingly, Bell J directly addressed the paper by Partovi et al identifying the authors of the Mason Court’s joint judgments, discussed here. She says: Continue reading →

At 1.25pm on Friday 4th June 1982, Gwyn Reiseger was driving on Coolart Road in Somerville on Victoria’s Mornington Peninsula. Ahead of her, she could see a small green Volkswagen waiting at a stop sign to cross the road. As she slowed down and indicated that she was turning left at the intersection, the driver of the green car slowly drove across Coolart Road. Unfortunately, he didn’t look the other way until too late. Seeing a silver Datsun speeding towards him at 90km/h, he stopped in the middle of the intersection. Reiseger heard a screech of brakes and then saw the Volkswagen spin off the road. Both cars were wrecked. She later told the coroner:

Both drivers were having a conversation when I got there. I told someone to go and ring an ambulance. The driver was still seated in the vehicle and I had a quick look at him and he seemed to be alright. He had a cut on his left calf which was the only injury I observed.

The Datsun driver, navy diver Russell Crawford, was uninjured. After the ambulance left, he asked a tow truck operator who the Volkswagen driver was. He was told that it was Keith Aickin.

Two weeks later, and thirty-five years ago yesterday, the High Court’s Sir Keith Aickin died at Melbourne’s Prince Henry’s Hospital. Continue reading →

My co-editor Katy Barnett has lately lamented the lack of special leave grants in private law matters. She will be happy about the three grants last Friday. In my view, a particular pleasure of private law matters is how hard-fought they can be over minutiae. An example is one of the three matters granted, which was described as follows in the lower court by the dissenting judge:

This is yet another appeal in what has been a long and bitterly contested series of actions and appeals between Clone Pty Ltd (“Clone”) and Players Pty Ltd (“Players”). There have already been two sets of proceedings that have been the subject of appeals to the Full Court and unsuccessful applications for leave to appeal to the High Court.

For added interest, one side of the dispute – who lost two High Court special leave applications but succeeded in their most recent state appeal – includes three well-known sports stars. Their opponent – a company owned by a wealthy family including a high profile investment banker – obtained leave to appeal the reopening of their victory 11 years ago. Astonishingly, the core dispute is about whether the word ‘NIL’ in a 1994 lease agreement was crossed out with a blue pen, to be resolved by examining four surviving photocopies of the lease because the original was lost. (For a taste of the factual subtleties of that process, see the dissenting judgment at [673]-[694].) And yet, the case raises some very major issues indeed concerning civil discovery, the obligations of civil litigants and the finality of civil rulings.

The three matters where leave have been granted are: Continue reading →

Today’s reported contempt proceedings in the Supreme Court of Victoria do not (yet) involve the High Court. Rather, they concern an ongoing appeal in Victoria’s Court of Appeal by the Commonwealth Director of Public Prosecutions against a ten year sentence imposed on convicted terrorist Sevdet Besim by the Supreme Court. However, the issues are closely tied to several past High Court decisions.

One is a ruling in late 2015 allowing a Cth DPP sentencing appeal in a federal drugs matter, where the High Court unanimously held that:

to prefer one State’s sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.

This ruling almost certainly is the background for reported comments by judges hearing the DPP’s appeal that, the case of terror sentences:

Warren CJ: “NSW courts appeared to put less weight on the personal circumstances of the offender than Victorian courts, with greater concern for denouncing the crime and sending a message to others in the community. It’s as if the Murray River is an enormous gap in terms of sentencing.”

Weinberg JA: “The range seems to be in the 20s [years] for offending somewhat similar to this. It is extremely worrying, I would have thought, that there is such a gap.”

Just as in the 2015 case, the difficulty faced by the judges is that Victorian courts consistently gave lower sentences than other states, notably NSW. The High Court has made it clear that Victoria should generally follow the national approach, rather than its own one.

The other High Court rulings in play today are ones concerning the common law offence of scandalizing the court. Continue reading →

This may not seem like news, but it is a first in nearly four decades. While the High Court’s Sydney Registry is often host to hearings of Australia’s apex court, these have long been limited to minor fare: special leave hearings, case management and the like, involving between one and three judges. By contrast, today’s hearings involve the Court’s core business (appeals) and at least five judges, something that last happened in Sydney on 10th and 11th March 1980, when all seven members of the Barwick Court heard a workers compensation dispute.

What changed after that date? The opening of the High Court’s first and only dedicated premises in May 1980 in Canberra. While Sir Garfield wanted that move to mark an end to the Court’s ‘circuits’ of Australian capitals (then administered by its Sydney Registry), a combination of resistance from the other judges (who didn’t want to live in Canberra) and state bars preserved the circuit system, albeit in a more limited form described in the Court’s most recent annual report as follows:

The Court conducts its sittings in Canberra and such other places as are determined by a Rule of Court made by the Justices in the preceding year. In addition, applications for special leave to appeal to the Court are heard regularly in Sydney and Melbourne, and the Court continues the practice, established on its inauguration, of sitting in Brisbane, Adelaide, Perth and Hobart if warranted by the amount of business.

So, what has changed now? Continue reading →

Monday evening was the launch of the latest ‘thematic’ issue of the UNSW Law Journal. This issue’s theme is ‘The Individual Judge’, which is also the title of Kiefel CJ’s 2014 speech and paper, where she first said ‘collegiality is not compromise’. The paper is one of three where she has defended the High Court’s practice of attributing judgments largely written by one judge to all the judges who agreed with it. While there is much of interest in the new issue of the UNSWLJ, only one of the articles responds directly to Kiefel CJ’s stance. The paper by Andisheh Partovi et al sets out five arguments for correctly attributing authorship of judgments: ensuring individual accountability (an argument I also put here), discouraging free riding, and serving the interests of judges, academics and lawyers. More importantly, the authors acted on their views by outing the likely authors of the joint judgments of the High Court from 1987 to 1995, when Sir Anthony Mason was Chief Justice. Needless to say, their list is absolutely fascinating.

So, who, out of the eight judges who sat in that period, likely wrote the most important joint judgments of the Mason Court? Continue reading →

Someone in Canberra is selling an ex-High Court chaise longue on Gumtree. I must admit that I am sorely tempted – surely the bloggers on this blog can only be inspired if we compose our posts on a court chaise longue? – although I suspect it’s “pickup only”! If you click on the link you’ll see it has a High Court stamp on the leg.

In two months, Melbourne Law School’s own Centre for Comparative Constitutional Studies will hold its fourth annual conference, this time focussing on:

• Non-Statutory Executive Power;

• Proportionality after McCloy;

• Restrospectivity and the Rule of Law

The first of these topics in particular is associated with the work of the French court, while the second captures a key issue in the transition to the successor Kiefel court. More importantly:

The final session of the Conference provides a retrospective on the High Court under Chief Justice Robert French, with a special focus on Chapter III and the separation of powers.

Unsurprisingly, the day will encompass a host of High Court cases:

The cases to be discussed include: Re Culleton [No 2] (2017); Cunningham v Commonwealth (2016);… Murphy v AEC (2016); Plaintiff M68 (2015); P T Bayan Resources v BCBC Singapore (2016); Rizeq v Western Australia (2016); McCloy v New South Wales (2015); Assistant Commissioner Condon v Pompano Pty Ltd (2013); Wainohu v New South Wales (2011); Momcilovic v The Queen (2011); Kirk v DPP (2010); South Australia v Totani (2010) and International Finance Trust Co Ltd v New South Wales Crime Commission (2009).

Looking further ahead, 2018 will be the first time that the biennial Public Law Conference series (previously held in Cambridge) will be held in Australia, inevitably including a consideration of the French Court’s work. Former High Court judge Ken Hayne is a speaker at both conferences.

The website for the CCCS conference is here, while the one for the Public Law conference is here.

After rejecting all written applications this session, the High Court granted seven applications in Friday’s twin oral hearings in Canberra. The grants include a direct sequel to a 2015 decision by the Court concerning an industrial dispute in Melbourne. As discussed in this post, the incident was a 2013 blockade of concrete trucks in Footscray at a site connected to the Regional Rail Link, seemingly led by Joe Myles, a CFMEU employee. Two years ago, the High Court ruled that the CFMEU, facing contempt proceedings for allegedly breaching an order barring such action, could be required to divulge telephone details that could link it to Myles. The contempt matter has since been settled and the CFMEU and Myles have admitted breaching the Fair Work Act in a parallel proceeding in the Federal Court. The new issue before the High Court concerns an unusual civil penalty that the Federal Court imposed on Joe Myles for his role in the Footscray incident.

The seven matters where leave has been granted this session are: Continue reading →

In a decision this week, Aubrey v The Queen [2017] HCA 18, a 4-1 majority of the High Court overruled an 1888 decision of the Court of Crown Cases Reserved (a predecessor to England’s Court of Appeals), which had held that a man who gave his wife gonorrhoea could not be convicted of ‘inflicting’ harm. Holding that the English decision should not be applied to the case of Michael Aubrey, a NSW man convicted of maliciously inflicting grievous bodily harm by giving his sexual partner HIV in 2004, the majority said:

Granted, until this case, Clarence had not been distinguished or judicially doubted in New South Wales. It was assumed that proof of an offence against s 35 of the Crimes Act necessitated proof of a direct causing of some grievous physical injury with a weapon or blow…  It may also be accepted that the Court is ordinarily loath to overturn a long-standing decision about the meaning of a provision unless there is doubt about it, or to depart from the view of judges who, because of proximity in time to the passage of the legislation in question, were more aware of the reasons underlying the legislation. But that is not this case.

The majority listed nine reasons why Clarence should no longer be followed, including contrary pre-1888 authority, the lack of a single majority view in the case, two forceful dissenting judgments, subsequent discoveries about infection, the subsequent abandonment of the presumption of consent to marital sex and the more recent rejection of Clarence in England’s courts.

Few, other than people in a similar position to Aubrey himself, will mourn the death of Clarence. However, the majority’s approach to overruling that decision is an interesting contrast to the Court’s refusal last year to overturn its own little-loved decisions on complicity Continue reading →

This week, the full bench of the High Court heard a challenge by ex-politician Bob Brown to Tasmanian laws giving police new powers to protect ‘workplaces’, including part of the Lapoinya forest where a logging operation has been occurring. Apart from its immediate political significance, the case is of enormous legal interest because the Court is being asked to revisit both ‘limbs’ of 1997’s Lange test on the operation of the Constitution’s implied freedom of political communication: what counts as a burden on the freedom (Tasmania argues that the new law cannot impose a burden on people who were, it claimed, already trespassers) and the test for when a law that burdens the freedom is invalid (some of the State parties have asked the Court to rethink the three-step proportionality test adopted by a bare majority of the Court in 2015’s decision on political donations.)

But these political and legal issues have long risked being sidelined by factual concerns. Continue reading →

The latest round of special leave determinations is notable for the attention the media gave to some refusals of leave. On Wednesday, the Court published a list of thirteen written refusals of leave. One, refusing Victoria’s Attorney-General leave to appeal Attorney-General v Glass (in her capacity as Ombudsman) [2016] VSCA 306  (where the Court of Appeal held that the Ombudsman can investigate a referral from the Legislative Council concerning entitlements) was reported with the headline ‘High Court delivers embarrassing blow to Andrews government‘, including criticism from the shadow Attorney-General of the challenge’s ‘scandalous waste of taxpayer dollars’. The Court’s disposition (published the next day) stated:

The application for special leave to appeal discloses no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Victoria.

which does, perhaps, qualify as somewhat embarrassing. A second case, refusing leave from Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181, which held that misleading labelling on Nurofen warranted a penalty of $6M (as ‘the bottom of the appropriate range for the contraventions’), was widely reported, including internationally, through Associated Press under the headline ‘Australian court rejects British painkiller firm’s appeal‘. The disposition stated that ‘The decision of the Full Court of the Federal Court is not attended with sufficient doubt to warrant the grant of special leave to appeal’, which is perhaps a little less embarrassing than the disposition of the Ombudsman matter.

The wider significance of special leave determinations has always been hard to parse, as the Court’s reasons are not always about the merits of the appeal or the arguments made by either side and, anyway, they typically only represent the views of two of the Court’s seven judges. However, the Court’s shift to written determinations, while a welcome saving of (amongst others’) ‘taxpayer dollars’, have made it even harder to judge the flavour of any particular determination, because we no longer have access to clues that would appear i a transcript of the oral hearing about the arguments that were made by each side and the particular views of the judges about the merits and other issues. An extreme illustration is a matter granted leave on the papers on Thursday. Commissioner of the Australian Federal Police v Hart & Ors [2016] QCA 215, part of a decade-long saga of proceeds of crime litigation, is 1275 paragraphs (and nearly 130,000 words) long. Justice Morrison’s judgment begins with a 5-page overview detailing the three appeals dealt with (each with notices of contention), the seven common issues, the sixteen appeal grounds, eighteen determinations of general disputes and the eleven outcomes for particular assets – and his judgment turns out to be in dissent on a number of key issues! The High Court granted the Commonwealth leave in each appeal, but we don’t yet know what arguments they raised (and what notices of contention will  be raised.) We may get a hint when the transcript announcing the written determination s published, but otherwise we will have to wait until the next High Court bulletin (for a brief summary) or the parties’ submissions on appeal (for fuller details.)

Having noted these uncertainties, here are summaries of the four cases where leave was granted last week, all criminal and three from Queensland: Continue reading →

Yesterday’s two judgments mark the final step of the transition from the French Court to the Kiefel Court. Until this week, judgments published by Susan Kiefel have been attributed to ‘Kiefel J’, even though she has been Kiefel CJ since January 30th. In today’s two decisions, the first, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12, has a joint judgment attributed to ‘Kiefel, Bell & Gordon JJ’, while the second, Kendirjian v Lepore [2017] HCA 13, has a solo judgment attributed to ‘Kiefel CJ’. The obvious explanation of the shift is that ‘Kiefel J’ is used for judgments where Susan Kiefel was still a mere Justice when she sat at the hearing. Ecosse was heard on 14th December last year, at a time when Robert French was still Chief Justice – he had six weeks left in the role – but by then he had not heard any cases for over two months and the Court had already held a ceremony to mark his retirement. By contrast, Kendirjian is the fifth case heard by the High Court since Susan Kiefel became Chief Justice, but the first to be decided.

So, what were the first ever words in a judgment by Kiefel CJ?:

I agree with Edelman J.

Continue reading →

The new Chief Justice of the High Court, Susan Kiefel, gave the 2017 ‘Supreme Court Oration‘ in Brisbane last week to a sell-out crowd. I dare say it is one of the most significant speeches a sitting Chief Justice has given, outlining in detail the High Court’s current process for producing judgments and responding to some criticisms of that Court’s approaches, including those of former High Court judge Dyson Heydon and current President of the NSW Court of Appeal, Margaret Beazley. The Australian Financial Review covered the speech as favouring ‘productivity over prose‘, and contrasted her approach to one-time law student favourite Lord Denning. The Chief Justice’s line:

I have always assumed it to be a universally held view that a judgment should be as succinctly stated as the matter allows.

has the potential to be her version of Dixon CJ’s famous, and much debated, pronouncement: ‘There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.’

The 12-page speech has far too much detail to cover in a short news post. However, one passage, explaining one reason she deprecates unnecessary separate judgments, caught my (and the Australian Financial Review‘s) eye: Continue reading →

Last week’s special leave hearings broke a four-month drought in appeals granted special leave ‘on the papers’. There were three grants of leave announced, one on Wednesday (without a hearing) and one each on Friday’s two oral hearings in Brisbane and Sydney.

The three appeals that will now go to the High Court are:

• Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106, which concerns the circumstances when a person who a court previously held owed a debt and is now bankrupt can now argue that he didn’t owe the debt. In 2015, the NSW Supreme Court held that the respondent owed just under $10,000,000 [EDITED: see comments] to the applicant after guaranteeing a now bankrupt company’s debts, rejecting his argument that details of the debt were not attached to the papers he signed and that he wasn’t aware of them. After he went bankrupt and the applicant applied to sequester the debt (preserving it from the demands of other creditors), he submitted new financial evidence challenging whether the bankrupt company ever owed anything to the respondent. The Full Court of the Federal Court unanimously held that the trial judge should have opted to inquire into whether any debt was owed, even though the applicant never challenged the amount of the debt in the NSW Supreme Court.

• Kennedy & Thorne [2016] FamCAFC 189, which examines the enforceability of binding financial agreements (colloquially known as ‘pre-nups’), where one party insists on the agreement as a pre-condition to marriage. The parties to a 2007 marriage differed in assets (none vs $18M),  Australian immigration status (a tourist visa vs Australian citizenship) and English fluency (little vs complete.) A week before they married, they signed an agreement prepared by the richer party’s solicitor, despite the poor party receiving independent legal advice that the agreement was ‘no good’ and (about a further agreement shortly after the marriage) ‘terrible’. Ruling after their 2011 separation and the richer spouse’s death in 2014, the Full Court of the Family Court overturned a trial judge’s finding that the agreement was the result of duress, holding that the trial judge failed to provide adequate reasons for the finding of duress and failed to make a finding of unlawful pressure (as opposed to a mere threat not to marry), instead holding that the agreement was binding on both parties.

• Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161, concerns the process for approving a regional enterprise agreement with employees who are presently in a different region. After the majority of seventeen employees of Aldi who were offered roles in a new ‘region’ of the company’s operations (on the NSW/SA border) voted to approve an enterprise agreement and the agreement was approved by the Fair Work Commission, the union (which was not involved in the earlier agreement) challenged the agreement on three grounds. A majority of the Full Court of the Federal Court held that the agreement could not be approved because it failed a statutory requirement that ‘the agreement has been genuinely agreed to by the employees covered by the agreement’ – at the time of the vote, the new region had no employees. The same majority also held that the Commission failed to properly apply the requirement that the employees be ‘better off overall’, relying instead on a clause in the agreement that promised the employees equal (but not better) terms than the award. But the Court unanimously held that it could not invalidate the agreement because of a one-word deviation between the notice given to the employees and the required wording, because, to the extent that the different wording was important – something the three judges differed on –  the Commission’s failure to act on it was not a jurisdictional error.

Today’s decision in Perara-Cathcart v The Queen [2017] HCA 9 reviews a split decision in the Full Court of South Australia’s Supreme Court, which Gageler J’s judgment usefully describes with a table:

This combination raises a long-standing puzzle about the judgments of multi-member courts that have to decide two different issues in a particular case and manage to produce a three-way split. Continue reading →

The Kiefel Court held its first oral special leave hearings on Friday morning. Last week, the Court ruled on several dozen written applications, dismissing them all. According to the High Court’s business list, a further seven matters were ‘TO BE HEARD IN CANBERRA AND BY VIDEO-LINK TO ADELAIDE AND TO SYDNEY’. However, on Thursday, the next day’s court list revealed, for the first time, that there would be two separate hearings at the same time, one in Canberra (hearing three applications, including two from Adelaide via video link) and the remaining four live in Sydney (rather than from Sydney via video link. [EDIT: Corrected. See comment below.]) It seems unlikely that anyone was put out by this late change of plans, but it is also unclear why it was not announced earlier.

The High Court granted leave in four matters, all of which relate to crimes or the criminal law. The four decisions appealed are: Continue reading →

During Kiefel CJ’s ceremonial sitting to mark her investiture as Chief Justice (recorded here), it is noted that she had particular involvement with the design of the new High Court robes. She was also apparently pivotal in designing the Federal Court robes, and commissioned theatre designer Bill Haycock to design them. Haycock was subsequently also asked to redesign the High Court robes.

I confess to having a crafty streak, although I am no weaver – drawing, writing and knitting are more my cup of tea.

I was delighted by this blog post, by Kay Faulkner, the weaver responsible for the sleeves for the new High Court robes. Please do read it all in detail if you want to know about the process of creating the robes. The material is handwoven, and exquisite. The pattern of the sleeves were designed to resemble the ripples left by waves on sand. It is fascinating to look at the way in which the various parties worked together and created these beautiful robes. Delightfully, everyone took a turn at weaving the final thread on the fabric.

After reading this post, I watched the video of Kiefel CJ’s investiture with a different understanding of the care which had been taken to make those robes.

This has undoubtedly been a busy week for the High Court’s website manager, with multiple changes to incorporate, including moving Kiefel J to Chief Justice and inserting Edelman J in the current justices list, and removing French CJ from the current justices list – he is now at the end of the Former Chief Justices list. A further change, also visible on the Court’s ‘About the Justices’ page, as to add ‘AC’ to all mentions of Gageler J:

As this image shows, the photo of the seven judges has not yet been updated (though French CJ is blocked by the drop-down menu.) Presumably, the Court is waiting for the first occasion when the seven current judges sit together (probably Thursday’s hearing of Rizeq v Western Australia, concerning the application of the constitutional right to a jury in state prosecutions involving non-state residents.)

Amidst the excitement of Kiefel CJ and Edelman J’s new judicial roles, Gageler J’s entry into the General Division of the Companion of the Order of Australia,  five years after his appointment to the High Court, has received little attention. Continue reading →

The swearing in of Justice Kiefel as the Chief Justice of the High Court of Australia was major news throughout Australia, and rightly so. But, as Professor Adrienne Stone pointed out on twitter, the Australian Financial Review fluffed its reporting:

Yesterday a woman (Bell J) presided at swearing in of another woman as CJ (Kiefel J). What a pity @FinancialReview shows the wrong photo. pic.twitter.com/weoDHLKnPI

— Adrienne Stone (@Adrienne_Stone1) January 31, 2017

The photo the Fin used was from Kiefel J’s swearing in as a High Court judge in 2007. On Monday, Kiefel CJ was sworn in by the High Court’s next most senior judge, Bell J, arguably adding to the groundbreaking nature of the event from a gender perspective.

Without letting Fairfax off the hook, I have noticed that there don’t seem to be any photos online of Bell J swearing in Kiefel CJ anywhere. Continue reading →

Here’s something you don’t often read in High Court transcripts:

HER HONOUR: Come into the witness box please, Mrs Smith. Do you wish to take an oath or an affirmation?
MRS SMITH: An oath.
DEBRA KIM SMITH, sworn:
HER HONOUR: Have a seat please, Mrs Smith, and pour yourself a glass of water if you would like one.
THE WITNESS: Thank you.

Debra Smith was testifying before Gordon J as part of litigation about the validity of former Senator Bob Day’s election last year. The final case’s hearing will be held in the second week of February before the full High Court (with Susan Kiefel as Chief Justice and James Edelman newly on the bench.) This week’s hearing is a preliminary one to resolve some factual disputes, the result of an order made by French CJ in November:

10. If the parties have been unable to agree by 22 December 2016 a statement of all the facts and documents which are relevant to the reference, the hearing and determination of the facts will be heard by a single Justice at a date to be fixed with a view to a referral to the Full Court thereafter.

The parties agreed on most issues, but not all of them. According to a ruling by Gordon J last week:

Notwithstanding that agreement, Ms McEwen sought, and continues to seek, additional findings of fact. The additional facts are directed to three separate issues: Mr Day’s interest in the lease with the Commonwealth (“Issue 1”), Mr Day’s statement and declaration in nominating for the Senate in 2016 (“Issue 2”) and distortion of the vote (“Issue 3”).

At Monday’s hearing, two witnesses, Debra and her husband John, both acquaintances of Senator Day and his building company, testified on the first issue and were cross-examined by Day’s counsel.

Witness evidence before the High Court, while unusual, is not unprecedented. Continue reading →

Litigants who win their ‘day in court’ often have to wait until long afterwards to reap the rewards, because of the mere possibility that the decision might be successfully appealed. An example is a dispute between members of Perth’s Mercanti family about the validity of Michael Mercanti’s 2004 appointment of his son Tyrone in his place as appointer of a trust governing proceeds of the family’s shoe repair business. Although Tyrone first won that battle in October 2015 in Western Australia’s Supreme Court, he has been subject to a series of injunctions concerning his exercise of powers under the trust ever since. First, the Supreme initially issued an injunction in 2013, presumably when the action by Michael, his wife, and two other children, commenced. Second, after ruling in Tyrone’s favour, the same court immediately issued an injunction pending Michael’s appeal to the Court of Appeal, which effectively lasted thirteen months until Michael lost the appeal in late November 2016. Third, the Court of Appeal immediately issued a three-week injunction to allow Michael time to consider an application for special leave to the High Court. Fourth, the Court of Appeal issued a second three-week injunction because Michael (apparently for understandable reasons) was not able to act before the High Court shut for Christmas. Fifth (but perhaps not finally), earlier this month, the High Court’s Kiefel J issued a further injunction against Tyrone, with no end date. That final injunction arose, in part, because the appellants thought the Court of Appeal wouldn’t grant a longer injunction and because Tyrone wouldn’t consent to any further extension of the injunction that had governed his actions for three years.

Justice Kiefel, in the High Court’s first judgment of 2017, addressed the issue of who should decide whether to grant an injunction pending a High Court special leave application: the court being appealed from, or the High Court? Continue reading →

The High Court’s 2015/2016 annual report states (as every annual report has for the past decade) that:

the numbers of Full Court hearings and decisions in 2015–16 were comparable with averages for both during the past 10 years.

However, as noted here last year, the number of published judgments in 2014 (49) and 2015 (53)  were among the fifteen lowest in the High Court’s history. With three judgments released today, 2016 equals 2015’s number of published judgments.

As previously noted, counting High Court judgments is not straightforward, because of changing practices in judgment publication (notably past courts’ willingness to issue lengthy substantive judgments on special leave applications.) The judgments published by the High Court typically include some minor judgements – single judge decisions and interlocutory rulings – that seemingly reflect publishing preferences in individual judges. This year, there were four such judgments, leaving 49 substantive judgments in 2016, one more than each of the last two years. The final counts of substantive judgments for the French Court are: Continue reading →

Just when it seemed that 2016 couldn’t get any worse, the High Court’s website went out of action last weekend from late Friday afternoon until mid-Sunday. The High Court has not provided any explanation to date of the outage, either over the weekend – the Court presently does not use social media tools that would suit such notice – or since. That means that Australians (other than those who happened to be at the High Court’s Sydney or Canberra registries on Friday morning) had to wait until Monday afternoon to discover what special leave applications were granted or dismissed in the Court’s last oral hearings for the year. Applications addressed in those hearings include three matters of broad public interest: an appeal by The Age newspaper concerning an order that journalists reveal their sources to a defamation matter; a dispute in Nauru’s Supreme Court concerning its jurisdiction to hear appeals in refugee matters; and challenges to ICAC findings holding that developers committed corrupt conduct by allegedly concealing the involvement of Eddie Obeid in their proposals.

As it turns out, leave was not granted in any of those matters. Rather, yesterday afternoon, the Court’s  website revealed that three different applications were granted at the oral hearings (the only three grants in December.) The three matters that will be heard by the Kiefel Court next year are: Continue reading →

The  High Court Amendment (2016 Measures No. 2) Rules 2016 were published on December 6th this year and took effect on December 9th. The amendments, presumably the final ones from the French Court, include new forms for arrest warrants, committal warrants, subpoenas and writs. For the first time since 2004, those forms must include the following words:

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth

These are the exact same words that were once required by the 2004 rules’ predecessor. As noted here, these amendments were prompted by a question from Senator Rod Culleton to Attorney-General Brandis, who pointed out that the previous version of the rules did not require that such forms comply with  s. 33 of the High Court of Australia Act 1979:

All writs, commissions and process issued from the High Court shall be:
(a) in the name of the Queen…

Even if Senator Culleton’s election is held to have been invalid by the Court of Disputed Returns, he will have had an impact on the statute book and the High Court that is rare indeed for a minor party Senator.

This week, the United Kingdom’s and Australia’s apex courts each held hearings that touch on recent votes in each country. The UK Supreme Court’s Brexit case (on whether triggering the UK’s exit from the EU is a matter for parliament or just the executive) is broadcast live on the Court’s website. The High Court’s Culleton hearing (where the Court of Disputed Returns will determine whether the WA One Nation Senator was disqualified by a since annulled conviction for larceny) can now be viewed on the Court’s AV archive, albeit not live. One difference that seemingly follows from this is that the video record of the Court may be incomplete. A possible example is an incident at the hearing described in The Guardian as follows:

The high court hearing into Rodney Culleton’s eligibility as a senator was interrupted by a One Nation member who labelled it a “star chamber” and “kangaroo court” after Culleton lost a bid for an adjournment. The dramatic interjection was made by member John Wilson, without Culleton’s knowledge. The senator’s chief of staff, Margaret Menzel, then remarked “he’s right” and his wife Ioanna Culleton said “at least someone has the guts to stand up [and say it]” as Wilson was asked to leave the court room.

I have been unable to locate this incident on the video recording of the hearing that appeared on the High Court’s website yesterday afternoon. Interestingly, though, there appears to be an unexplained, and unsignposted, break in the recording just after the 36 minute mark, immediately after Kiefel J says the words ‘We will now proceed to hear the substantive argument.’ You can see it most clearly by watching Keane J’s hands.

As noted in an earlier post, interruptions in apex court proceedings, usually as a form of political protest, are nothing new. However, video recording of hearings is a recent phenomenon in the High Court. If it is correct that the interruption and other events described in the media indeed occurred in the above break, then it appears that the Court may have an unannounced policy to remove these events from thevideo  record.  Continue reading →

I was particularly delighted to hear of James Edelman’s recent appointment to the High Court of Australia, as he is a friend and former academic colleague. Indeed, his book based on his PhD thesis, Gain-Based Damages: Contract, Tort, Equity and Intellectual Property was the inspiration for my own PhD thesis.

Edelman J’s list of achievements are impressive: degrees in law, economics and commerce, a Rhodes Scholarship, a BCL and a DPhil from Oxford, a Professorship at Keble College, Oxford, followed by an appointment to the Supreme Court of Western Australia in 2011 and an appointment to the Federal Court in Queensland in 2015. He has numerous publications in the area of private law, and a keen interest in theoretical scholarship.

We extend our warmest congratulations to him and to our new Chief Justice, Susan Kiefel.

Today’s news, as welcome as it is unsurprising, officially confirms that the next High Court will be the Kiefel Court. Here are some features of the new Court that will commence on 30th January 2017:

• Susan Kiefel, age 63, appointed by Howard government until 17th January 2024
• Virginia Bell, age 65, appointed by Rudd government until 7th March 2021
• Stephen Gageler, age 58, appointed by Gillard government until 5th July 2028
• Patrick Keane, age 64, appointed by Gillard government until 26th October 2022
• Geoffrey Nettle, age 66, appointed by Abbott government until 2nd December 2020
• Michelle Gordon age 52, appointed by Abbott government until 19th November 2034
• James Edelman, age 43, appointed by Turnbull government until 9th January 2044

With Edelman J ( a Supreme Court judge later Federal Court judge, from WA) replacing French CJ (previously a Federal Court judge from WA, appointed by the Howard government), the Court’s diversity in appointing party, gender, geography (alas for South Australia) and prior positions remains unchanged. However, Edelman J is the Court’s first appointee born in the 1970s, just as Gordon J before him was the Court’s first appointee born in the 1960s.

Assuming no early resignations, these are the last new appointments to the High Court for four years. The next (or so) Prime Minister  will then have the opportunity to replace Nettle J and Bell J in quick succession in 2020/1, followed by Keane J in 2022. If Kiefel CJ stays for her full term, then the next most senior judges will be Gageler J, Gordon J and Edelman J. As  Gageler J will have only four years remaining on the Court (although Brennan CJ was appointed in similar circumstances), a Gordon Court from 2024-2034 and an Edelman Court from 2034-2044 would be a solid bet.

It is no secret that relations between Attorney-General George Brandis and Solicitor-General Justin Gleeson were “irretrievably broken” when Gleeson resigned as Solicitor-General in October this year. However, it has now been revealed that there may have been a High Court connection to the rift: it has been reported today that the ever-sprawling, never-ending Bell Group case may have led to the difficulties between the pair.

As I noted earlier this year, the Bell Group case looked to have settled in 2013, but the Western Australian government’s attempt to distribute the settlement funds via a statutory scheme was struck down by the High Court in May in Bell Group N.V. (in liquidation) v Western Australia [2016] HCA 21. The ATO was a major creditor who would have lost out had the Western Australian legislation been held to be valid.

The West Australian reports that Brandis had apparently made a deal with the Western Australian government that the legislation would not be challenged, and that Brandis instructed Gleeson not to run a particular argument in the May case. It was reportedly Gleeson’s refusal to comply with this which led to the rift. Continue reading →