News: Second quarter brings 15 special leave grants

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

Australian Securities and Investments Commission v Kobelt

A majority of the High Court has dismissed an appeal from the Full Court of the Federal Court of Australia, rejecting the proposition that the respondent’s provision of “book-up” credit to a remote indigenous community was unconscionable conduct in connection with financial services pursuant to s12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act‘).

The “book-up” credit system

The respondent, Mr Kobelt, operated a general store in Mintabie, South Australia, called “Nobby’s Mintabie General Store”. The store sold second-hand cars, food, groceries and fuel. From 2008 onwards, Mr Kobelt supplied a form of credit to customers who were predominantly indigenous Aṉangu people, most of whom lived in two remote communities, Mimili and Indulkana, within the Aṉangu Pitjantjatjara Yankunytjatjara Lands (‘APY Lands’). The customers were poor and had low levels of literacy and numeracy.

The credit system was called a “book-up” system. Payment for goods was deferred in whole or in part, subject to the customer supplying Mr Kobelt with the keycard and the PIN linked to the bank account into which the customer’s wages or Centrelink payments were credited. Very few transactions were documented carefully or at all. Mr Kobelt had no way of knowing what the balance of the customer’s account was. On the days when the customer had told him moneys were coming in, he would withdraw money in increments  until there were no funds left. He usually retained possession of the keycard until the debt was repaid. However, if the customer left APY lands, they were temporarily allowed to take their keycard on the condition that they would return it when they returned to APY lands. Most of the “book-up” credit was supplied in relation to the purchase of second-hand cars. Because the balance of their accounts was immediately removed when it came into the account, the customers could not buy groceries, but Mr Kobelt would let customers use a portion of what he had withdrawn during that particular pay period (up to 50%) to purchase groceries. Customers were therefore tied to using his store or other stores in Mintabie.  Continue reading

A Threshold of Materiality for Judicial Review: Common Sense or Injustice? Hossain and SZMTA

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

Clubb v Edwards; Preston v Avery

The High Court has dismissed two appeals against judgments of the Magistrates’ Courts of Victoria and Tasmania, rejecting challenges to two laws restricting communication and activities near abortion providers on the basis that those laws contravened the implied freedom of political communication. Section 185D of the Public Health and Wellbeing Act 2008 (Vic) prohibits various behaviours, including communicating in relation to abortions with a person accessing an abortion provider in a ‘safe access zone’ around the clinic, if that communication is likely to cause distress or anxiety (the ‘communication prohibition’). Section 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) prohibits abortion protests that can be seen or heard by a person accessing an abortion clinic (the ‘protest prohibition’). Clubb had spoken to a couple seeking to access a Melbourne clinic and attempted to give them anti-abortion literature, and was convicted of an offence against s 185D. Preston stood on a street corner near a Hobart clinic with placards with statements about the ‘right to life’ and depictions of a fetus, and was convicted of an offence against s 9(2). Each appellant sought review of the magistrate’s decision in the Supreme Courts of their states, which were then removed to the High Court. Before the High Court, each appellant claimed that the law they were convicted under contravened the implied freedom of political communication.

The High Court unanimously dismissed both appeals.

Joint Judges ([1]–[130])

The joint judges (Kiefel CJ, Bell and Keane JJ) first restated the Lange test on the implied freedom as reformulated in McCloy v New South Wales [2015] HCA 34, (at [5]):

  1. Does the law effectively burden the implied freedom in its terms, operation or effect?
  2. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
  3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

The joint judges then rejected the appellants’ argument that the Court should approach the question as a derogation from the ‘right to protest and demonstrate’: the Court declined on the basis that the implied freedom does not guarantee a right to a mode of protest, that the common law right to protest may be abrogated by statute, and that this approach would depart from the Court’s settled approach to these questions (at [8]).

Dealing first with the Clubb appeal, after laying out the facts, proceedings and legislation (at [10]ff), the joint judges turned to the ‘threshold issue’ of whether Clubb’s conduct actually involved ‘political communication’: the Attorney-General of the Commonwealth contended that Clubb’s conduct appeared to be only directed at a woman accessing the clinic, and thus was not a communication about a political or government matter (at [25]–[27]). The joint judges acknowledged the force in this contention: ‘A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial.’ (at [29]). Here, handing over an anti-abortion pamphlet lacked a connection with the ‘electoral choices to be made by the people of the Commonwealth’, and was not about law or policy makers, or encourage the woman to vote against abortion or publicly debate it: rather it simply sought to convince her not to have an abortion (at [31]). Noting the point in Lambert v Weichelt (1954) 28 ALJ 282 that the High Court should avoid investigating and deciding constitutional questions unless the facts make it necessary (at [32]ff), the joint judges stated that this practice was not a rigid rule, and that this case presented three ‘unusual features’ which warranted dealing with the Clubb matter even if it did not involve political communication (at [36]). First, the line between speech for legislative or policy change and speech directed at an individual’s moral choice ‘may be very fine where politically contentious issues are being discussed’ (at [37]). Second, while there might be no connection between the implied freedom and the facts in the Clubb matter, the question might arise in other similar cases, including in Preston (at [38]). Third, if Clubb’s contentions are correct she is entitled to have her conviction set aside: judicial economy favours dealing with them (see at [39]).

Moving to the McCloy steps, the joint judges accepted the views of both Clubb and the Solicitor-General for Victoria that the communication prohibition proscribes communications that could be called ‘political’ and thus is a burden for the purposes of the first step (at [41]–[43]). Turning to the second ‘legitimate purpose’ step, the joint judges reiterated that a purpose is compatible with maintaining the constitutionally prescribe system of representative and responsible government (and thus legitimate) if it does not impede the functioning of that system (at [44]). Here, the statute’s express purpose is to protect the safety, well-being, privacy and dignity of people accessing lawful medical services, and staff and others associated with those services (at [47]). The joint judges emphasised the protection of dignity element of the communication prohibition, drawing on the writings of Aharon Barak (at [51]):

Generally speaking, to force upon another person a political message is inconsistent with the human dignity of that person. As Barak said, ‘[h]uman dignity regards a human being as an end, not as a means to achieve the ends of others’. Within the present constitutional context, the protection of the dignity of the people of the Commonwealth, whose political sovereignty is the basis of the implied freedom, is a purpose readily seen to be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Thus, when in Lange the Court declared that ‘each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia’, there was no suggestion that any member of the Australian community may be obliged to receive such information, opinions and arguments.

The joint judges rejected Clubb’s argument that the communication prohibition burdens the anti-abortion side of the debate more than the pro-abortion side, and that discomforting speech cannot be excluded (at 52]). First, the prohibition is ‘viewpoint neutral’ in that it prohibits any behaviour ‘in relation to abortions’ rather than ‘against’ or ‘for’ abortions, and pro-abortion activists might equally cause distress or anxiety to a person seeking an abortion by co-opting them into a campaign, or by ignoring their privacy and dignity (at [54]–[56]). Second, the ‘discomfort’ argument ignores the words of the statutory prohibition, which is aimed at words ‘reasonably likely to cause distress or anxiety’, not mere discomfort or hurt feelings; and more broadly, debates about feelings in political communication in forums of public debate voluntary entered into have no application to individuals attending to a private health issue, who may be in a vulnerable state, and which are aimed at preventing them from obtaining medical advice and assistance (at [57]–[59]).

Having concluded that the second step was met (see [60]), the joint judges moved to the proportionality analysis. Their Honours first rejected the arguments by the Solicitor-General of Victoria that it was not necessary to apply all of the proportionality testing on the basis that the burden was minimal and for a compelling legislative purpose: while the burden may be slight, McCloy requires that any burden be justified (at [64]). The joint judges emphasised that proportionality requires the Court to assess only whether the law can be seen as irrational in pursuing its object or placing an ‘undue’ burden on it, rather than asking whether the legislature placed a ‘correct’ balance between the restriction and implied freedom (at [66]) or weighing the ‘general social importance’ of the law and the implied freedom (at [72]).

Here, the communication prohibition did pass this step. It was spatially limited to the areas for accessing abortion clinics, preventing a person seeking to access the clinic from hearing or seeing communication about abortion (at [78]–[79]). Contrary to Clubb’s submission, there was no evidence that on-site protests were specially effective for political communication about abortion, and cannot be usefully compared to forest protests which do not aim at the dignity and privacy of people targetted by the activists’ messages (at 82]). Further, anti-abortion activists are able to communicate their messages anywhere outside the safe access zones (at [83]). The joint judges then moved to reject Clubb’s arguments that less burdensome methods that might have achieved similar results (see [88]–[95]). Finally, the joint judges held that the balance was adequate: the law maintained the dignity of people by ensuring they are not ‘held captive’ by an ‘uninvited political message’, while also being a slight burden on both subject matter and geographical extent (at [99]–[100], and see summary at [102]). Consequently, the Clubb’s appeal must be dismissed (at [103]).

Moving then to Preston, the joint judges again recapitulated the facts, proceedings and legislation (at [105]ff), before noting that the Tasmanian statute differed from the Victorian one in several ways: it does not expressly state its objects, it is directed at ‘a protest’ about abortion, and its scope is not limited by a requirement that the protest be ‘reasonably likely to cause distress or anxiety’ (at [116]). Turning to the McCloy steps, the joint judges noted that Preston and the Solicitor-General for Tasmania accepted that the focus on ‘protest’ showed a burden directed at a clear mode of political communication in the form of a public demonstration (at [118]–[119]). On legitimate purpose, the joint judges held that the Tasmanian statute was aimed at protecting the safety, wellbeing, privacy and dignity of people accessing abortion clinics and that like the Victorian statute this too was a ‘viewpoint neutral’ prohibition related to any protest, and would be contravened by pro-abortion protests (at [120]–[123]). It was likewise suitable because it facilitated effective access to abortion services, and prevented those seeking to access medical advice and assistance from being deterred from doing so (at [124]). The joint judges then rejected Preston’s submission that the prohibition applies regardless of whether any harm, anxiety or distress is likely or intended; the absence of that limiting requirement here is irrelevant because public demonstrations about abortions ‘inevitably constitute a threat to the equanimity, privacy and dignity’ of a person seeking abortion services (at [125]–[126]). Finally, the Tasmanian statute was adequately balanced for the same reasons as the Victorian: it was geographically restricted, imposes a slight burden, and does not discriminate between sides in the debate (at [127]). Consequently, Preston’s appeal must likewise be dismissed.

Gageler J (at [131]–[214])

Gageler J began with Clubb’s matter, holding that because she does not assert that she was engaged in any form of political communication in handing out the leaflets, her challenge to her conviction under s 185D will fail, even if she succeeds in establishing that the communication prohibition infringes the implied freedom (at [131]–[132]). Consequently, there is no need to answer that question to determine her criminal liability, and the Court ought to decline to do so (at [133]). Gageler J stated that he agreed wholly with Gordon J’s analysis of this point, and that he would add further points on the institutional practice and statutory interpretation points that underlay the approach to Clubb (at [134]).

First, the Court’s practice of declining to answer any constitutional question that was not necessary to answer on the facts of a matter ought to be followed here: the Court’s jurisdiction is to resolve controversies about legal rights and liabilities about real, concrete issues, not declare legal principles about abstract ones, and this practice should not be departed from for reasons of convenience (at [135]–[138]). Secondly, the principle of severance — that, absent a contrary intention, a legislature should be assumed to intend that if a law would fall foul of the constitutional limits on legislative power, it is still intended to operate to the extent that it is constitutionally permitted (at [140]) — should apply: the prohibition against ‘communicating … in relation to abortions’ can be read to exclude political communication, and there is nothing in the text or context of the Public Health Act to suggest the legislature did not intend for it to have no application if it did not apply to political communication (at [149]). Gageler J then rejected Clubb’s suggestion that severance would require the prosecution to prove beyond reasonable doubt that she was not engaged in political communication, which the prosecution did not do: severance does not work in that way, but rather to take political communication outside the scope of the provision’s operation to form an exception for prohibited behaviour that was political communication (at [151]). Gageler J concluded that ‘[i]f the freedom of poltiical communication was to be relied upon to impugn her prosectuion … the practical onus was on Mrs Clubb to bring such material forward. She did not do so’ (at [153]).

Turning then to Preston, Gageler J noted the facts of the case and that the Preston matter was ripe for determination (at [156]). Gageler J treated the test as the Lange-Coleman-McCloy-Brown analysis of three stages, and emphasised that ‘structured proportionality’ is no more than an intellectual tool, and noted his Honour’s earlier interventions on this topic (at [159]ff). Gageler J’s framework in this case is consistent with his Honour’s approach in Brown: burden, calibration, purpose, and justification (at [162]):

first, to examine the nature and intensity of the burden which the protest prohibition places on political communication; second, to calibrate the appropriate level of scrutiny to the risk which a burden of that nature and intensity poses to maintenance of the constitutionally prescribed system of representative and responsible government; third, to isolate and assess the importance of the constitutionally permissible purpose of the prohibition; and finally, to apply the appropriate level of scrutiny so as to determine whether the protest prohibition is justified as reasonably appropriate and adapted to achieve that purpose in a manner compatible with maintenance of the constitutionally prescribed system of government.

The burden here was direct, substantial and discriminatory against a traditional form of political communication both on its face and in its practical operation (at [174]): indicated by its direction against public demonstrations (at [164]), limited to content relating to abortion (which, combined with the public demonstration focus, made this inherently about abortion legislation and politics: at [165]–[167]), it is site-specific, and in its practical operation time-specific (at [168]–[169]), and though its legal operation is viewpoint neutral, for Gageler J it does affect anti- and pro-abortion activists differently because only anti-abortion activists would seek to express their disapproval there (at [170]ff).

Moving to calibration, Gageler J rejected the Attorney-General for Victoria’s submission that a mere ‘rational connection’ between the prohibition and the purpose is required: that level of scrutiny is only for indirect or incidental burdens on political communication; here a higher level is required because of the higher risk to the constitutionally prescribed system of representative and responsible government (at [175]–[177]). Gageler J accepted the suggestion of the Attorneys-General of the Commonwealth and New South Wales that useful parallels can be drawn from United States First Amendment jurisprudence and its connections between levels of scrutiny and standards of justification based on the kind of restriction (see [178]ff). Given the burden here, it could only be justified if it can withstand the close scrutiny of a compelling justification (again, as in Brown), namely: it must be more than constitutionally permissible, and instead ‘compelling’, and it must be ‘closely tailored’ to the achievement of the purpose, and not burden the freedom more than is reasonably necessary for that purpose (at [183]–[184]).

That purpose is determined by subject matter, text and context. After noting the parties’ submissions (see [187]ff) which drew on US jurisprudence, Gageler J stated that neither Preston nor the Attorney-General for Victoria captured the ‘richness’ of the US approach or adequately related it to the Australian context: unsolicited and unwelcome political speech is part of a ‘right to be let alone’ that was more accurately an ‘interest’ that States might protect (at [193]). In Australia such speech is not necessarily incompatible with the constitutionally prescribed system of representative and responsible government, but rather, like the US example, protecting against unwanted or offensive communication is a permissible purpose which, depending on context, may justify a burden (at [196]). Here, Gageler J held it did: prohibiting protest within an access zone aims to ensure women have access to abortion services in ‘an atmosphere of privacy and dignity’: ‘he purpose so identified is unquestionably constitutionally permissible and, by any objective measure, of such obvious importance as to be characterised as compelling.’ (at [197]).

Moving finally to the justification — whether the burden is significantly more than is reasonable for the purpose — Gageler J noted that the Tasmanian law drew a clearer, ‘bright line’ rule against any interference than the Victorian (at [200]ff), reviewed the approaches to safe zones in other comparable jurisdictions (at [202]ff), and emphasised that Australian courts cannot ‘tinker’ with legislative designs (at [207]). While the radius of 150m was not clearly outlined in the legislative materials or evidence, Magistrate Rheinberger’s findings that there were plenty of locations at which protestors could be outside the zone but communicate their message to passersby was ‘decisive’ (at [211]): 150m was ‘close to the maximum reach’, but still compatible with the purposes of protecting access to the facilities (at [213]).

Nettle J (at [215]–[325])

Nettle J agreed with the conclusions of the joint judges but differed in some respects from their reasoning (at [215]).

On the threshold question, Nettle J noted that the Attorney-General of the Commonwealth’s submissions were based on Gageler J’s views in Tajjour (at [219]), and that the Court ordinarily would not consider reading down or severance until it had decided that the law, on its natural and ordinary meaning, construed in context and having regard to its purpose, would be invalid unless read down or severed (at [220]). After reviewing a range of cases in which that happened (see [221]ff), Nettle J stated that those cases ‘support the idea that there are matters in which it is sufficient to dispose of an attack on the constitutional validity of a provision to conclude that, assuming without deciding that the impugned law would otherwise be invalid, it could be read down or severed in its operation in relation to the plaintiff and so be considered as valid to that extent.’ (at [230]).

Despite this being sometimes useful, it should not apply here: Clubb has been convicted of a criminal offence after a Magistrate rejected her contention that the provision was an unjustified burden on the implied freedom of political communication, and appealed that part of the decision to the Supreme Court of Victoria and ultimately the High Court: thus the constitutional validity of s 185D is not an ‘academic or hypothetical question’, and if it is invalid then Clubb has been wrongly convicted, and thus she has a direct and immediate interest in resolving hat question (at [231]–[232]). Nettle J then raised several constructional problems suggesting that s 185D could not be read down to avoid it impermissibly burdening the implied freedom (see at [233]ff), noted that the Crown in the Magistrates Court had not sought to contend that it could be read down (at [238]ff), and also that no finding has been made on whether Clubb’s communication is on a government or political matter (at [240]). Overall, then, it would be a ‘practical injustice’ and of ‘little practical advantage’ to dispose of the matter now as a threshold issue (at [242]).

After recounting the facts of the Clubb appeal and the Victorian legislation (at [243]ff), Nettle J outlined the basis and requirements of the implied freedom and emphasised that it is a restriction on legislative power, and not, as Clubb’s arguments frequently assumed, a personal right of free speech similar to that of the US First Amendment (at [247]–[248]). Rather, the content of the freedom depends on what is relevant to the ‘common convenience and welfare of society’ from time to time: while the range of matters relevant to ‘government and political matters’ is broad, it does not necessarily include all matters of ‘political controversy’; and while abortion is one such subject matter, not necessarily all communication about it is political (for example, a private consultation between a pregnant person and their doctor about an abortion is not a political communication about abortion): at [249].

Nettle J raised doubts about whether s 185D constituted a burden: while it restricts the freedom by proscribing certain behaviours within 150m of abortion clinics, it leaves people free to say what they wish outside that radius, and it is not clear on the evidence here that those restrictions have any effect on the efficacy of anti-abortion political communication (at [250], [251]). Certainly it prevents protestors like Clubb from being able to ‘accost and harangue’ people seeking abortions, but Nettle J reiterated that that decision is not a political decision but rather a personal one informed by medical advice and a person’s ethical, and religious beliefs ‘qualitatively different from a political decision as to whether abortion law should be amended’ (at [252]). Nettle J noted, however, that previous High Court authority establishes that the burden test is qualitative not quantitative, and looks to the ‘terms, operation and effects, both legal and practical’, of the law (at [254]). Here, s 185D and its prohibited behaviour does practically prohibit protests about abortion and is qualitatively significant, even if ‘quantitatively insignificant’ (at [255]).

Moving to the two-step inquiry of whether the law is for a legitimate purpose consistent with the system of representative and responsible government, and whether it is appropriate and adapted to that purpose, Nettle J held that was aimed at a legitimate purpose: it aims to prevent particular kinds of conduct by prohibiting behaviours that go against the safety and wellbeing of women, support persons and staff to access abortion clinics; ‘The protection of the safety, wellbeing, privacy and dignity of the people of Victoria is an essential aspect of the peace, order and good government of the State of Victoria and so a legitimate concern of any elected State government’ (at [258]). Contra Clubb’s argument that the protection of dignity was not a legitimate purpose because all political speech may or does offend dignity, Nettle J reiterated that the implied freedom is a freedom to communicate political ideas to people willing to listen, not a licence to accost or harangue people, especially vulnerable people seeking private, personal medical advice and assistance (at [259]).

Turning to the appropriate and adapted test, Nettle J also rejected the Attorney-General for Victoria’s submission that a law imposing an ‘insubstantial burden’ is automatically appropriate and adapted (see [260]–[263]), and the Attorney-General of the Commonwealth’s submission that the degree of justification should be ‘calibrated’ according to the level of burden, which here should require a ‘slight’ degree of justification (at [264]–[265]): both were conclusory arguments and do not clearly guide the inquiry. Nettle J instead largely adhered to his approach in Brown of three-part proportionality testing, now slightly modified to four-steps: the law must be ‘suitable, necessary and adequate in its balance’: suitability means a rational connection to the purpose of the law (and the law can achieve that purpose); necessary means that it is within a reasonable range of ways to achieve that purpose; and adequate in its balance means its effect on the implied freedom is not grossly disproportionate or goes far beyond what can be justified in pursuit  of the law’s purpose (see in detail at [266]). Nettle J then explained his reasons for shifting the terms of these tests since Brown, emphasising the need for some more flexibility in some of the criteria, and defending the need for the ‘adequacy in balance’ element (at [267]ff).

Applying this test to the present matter, Nettle J stated that the Act’s proscribing certain behaviour near abortion clinics was rationally connected to the purpose of securing the health and wellbeing of people seeking abortions and staff (at [276]). The means of achieving that purpose was necessary in that there were no obvious and compelling alternatives that would have had a significantly lesser burden on the freedom, and Nettle J rejected Clubb’s various arguments that alternatives did exist, for example to require the Crown to prove distress or including a ‘carve out’ for political communication on abortion (at [277]ff). Nettle J then held that the law was adequate in its balance: its burden was not grossly disproportionate or go far beyond what would be reasonable in pursuit of its purpose (at [292]ff).

Moving then to the Preston appeal, Nettle J noted that it involved different considerations but resulted in the same conclusions as Clubb (at [295]). After reviewing the law and facts in the Preston matter, Nettle J held that it imposes a burden on the implied freedom by proscribing political communications within the access zone (at [303]ff). Nettle J reiterated that, as in Clubb, that the law prevents the capacity of people like Preston to try to influence people seeking abortions to not do so is not a political communication, but rather a communication on an apolitical, personal matter that does not burden the implied freedom (at [305]). The law here had the legitimate purpose of advancing women’s health by ensuring access to lawful termination services, privately, with dignity and without the risk of being subjected to haranguing by abortion protestors (at [306]ff). Nettle J rejected Preston’s argument that the law was intended to ‘handicap’ the anti-termination side of the abortion debate (see at [308]–[311]). Turning then to whether it was appropriate and adapted, Nettle J reiterated that the law’s connection to advancing the health and wellbeing of people seeking terminations showed it was ‘suitable’ (at [313]) and rejected Preston’s contention against this — that it singles out anti-abortion protests, and that because it does not specifically prohibit protests that are ‘reasonably likely to cause distress or anxiety’ it was not rationally connected: rather, aiming at protests about terminations is consistent with and reinforces the conclusion that the proscription is aimed at ensuring the health and wellbeing of women seeking abortions (at [315]). Moving to necessity, Nettle J rejected Preston’s various suggestions about alternatives, holding that none was an obvious and compelling alternative (see [316]ff), and nor was the law inadequate in its balance (see [324]).

Gordon J (at [326]–[405])

Gordon J likewise rejected both challenges.

Beginning with Clubb, Gordon J held that it was appropriate to consider severance by reading down the communication prohibition for two reasons. First, Clubb did not contend that she was engaged in political communication, meaning that there is no ‘right, duty or liability’ in issue that applies to her which turns on the validity of that prohibition in its application to political communication. Second, the communication prohibition would be severable if and to the extent that it burdened the implied freedom. In these circumstances, no further analysis is appropriate or required to dismiss Clubb’s challenge (at [330]). Expanding on the application of these reasons to Clubb, Gordon J noted that Clubb’s appeal needed to begin by assuming the provision was constitutionally invalid, and then also show that it cannot be severed: if it cannot, then anyone charged under it, whether or not they were engaged in political communication is irrelevant (at [332]–[335]). If it can be read down, then in Clubb’s case the Court cannot consider it further because it would be a hypothetical or speculative application of the provision (at [336]). Gordon J then asked whether it was indeed severable (at [336]). After laying out the case law and statutory interpretation principles on severance (at [336]ff), Gordon J noted that the question here is whether there was a statutory intention contrary to the assumed position that prohibited behaviour should be divisible and that any parts of it within constitutional power should be in effect (at [341]). Gordon J’s answer was that there was no such intention and, if it were necessary, the definitions of ‘prohibited behaviour’ could be read down to not include political communications: the prohibitions are broad and the Victorian Parliament cannot have intended that they not apply if the provision were invalid in applying to political communications: ‘Such a result would stultify or undermine’ the statutory purpose, and ‘would leave persons accessing premises at which abortions are provided vulnerable to confronting and personal communications, including those targeted at their personal choice to attend a clinic and undergo an abortion’ (at [345]). Finally, Gordon J rejected Clubb’s argument that even if the communication prohibition could be read down the appeal should be allowed because the prosecutor had not proven that Clubb’s communication was not political communication: under the construction here, characterising communications as political or not-political is not an element of the offence, and it would be for the accused to lead evidence on that matter to try to establish that fact (at [348]). Clubb’s appeal should be dismissed (at [349]).

Moving then to Preston, Gordon J first laid out the legislative provisions and the procedural history (at [350]ff) before outlining the implied freedom in terms of the three Lange questions as applied here (at [354]):

(1) Does the Protest Prohibition effectively burden the freedom of political communication? (2) Is the purpose of the Protest Prohibition legitimate, in the sense that it is consistent with the maintenance of the constitutionally prescribed system of government? (3) Is the Protest Prohibition reasonably appropriate and adapted to advance that purpose in a manner consistent with the maintenance of the constitutionally prescribed system of government?

Gordon J held that it did burden the implied freedom, but that burden is not substantial: it is a time, place and manner restriction directed at the legitimate purpose of creating an access zone to allow women and staff access to an abortion clinic, and its means are not incompatible with the maintenance of the constitutionally prescribed system of government (at [355]).

Turning to each of these in detail, Gordon J laid out the legal and practical effect of the law, noting that the protest prohibition does as it says: it prohibits protests in relation to terminations, which may impose a burden on political communication (at [368]). The nature and extent of that burden is insubstantial: it is not specifically directed at political communications or the content of these views, and applies whether a person is for or against abortions (at [371]–[374]). It thus does not discriminate against political communications on the basis of content or source, and applies equally to different kinds of protests about abortion (at [375]–[377]). Moving to purpose, Gordon J read the protest prohibition as a law directed at providing safe passage for people accessing abortion clinics, and rejected Preston’s contention that it aimed to ‘deter speech’: its purpose is not to deter speech but to enable safe access, and to do that it removes one of the barriers that might deter people from accessing lawfully available medical services (at [378]–[381]). The protest prohibition is also appropriate and adapted to this purpose: it effects only an insubstantial and indirect burden on political communication to do that, and there is ‘nothing protectable about seeking to shame strangers about private, lawful decisions they make’ (at [382]–[388]).

Gordon J then turned to structure proportionality, noting that in this appeal, as in Brown, it is ‘neither necessary nor appropriate to say anything further about suitability, necessity or adequacy of balance’ because once the law passes the three steps, the burden is not ‘undue’ and no further analysis is needed (at [389]). Proportionality is ‘a means’ and ‘a tool of analysis’ (at [390], emphasis in original), not a constitutional doctrine or method of construing the constitution, and the suggestion that structure proportionality may provide more consistency or clarity in judgment should ‘be approached with caution’ (at [390]). Not every law burdening the implied freedom can or should be analysed by a rigid ‘one size fits all’ approach (at [391]). Structured proportionality does not reflect common law methods, and instead reflects civil law origins and purposes, and thus may not be suited to or compatible with the Australian context (at [391]ff). After exploring a number of academic views on the theory of proportionality (Schauer, Alexy and Barak, at [392]ff), Gordon J reiterated the problems of a ‘one size fits all’ approach, given that each matter is fact-specific and each analysis necessarily case-specific (at [403]). The Lange questions instead provide ‘a standard‘ and the more ‘rule-like’ elements introduced into that standard and applied rigidly and formalistically, the further the judge is taken from that standard’s purpose (at [404], emphasis in original). Standards are more useful for the common law’s case-by-case basis of crystallising its meaning, and while they may cause uncertainty, proportionality ‘will not always be the answer to that uncertainty’ (at [404]).

Edelman J (at [406]–[509])

Edelman J began by emphasising that a clear and principled approach is needed to distinguish between this case and Brown v Tasmania, partly to ensure that the implied freedom does not become a vehicle for courts to assess the merits of different legislative approaches to political communication, or a mass of single decisions that are not united by ‘a reasoning process requiring precision of thought and expression’ (at [407]). For Edelman J, structured proportionality provides the ‘analytical, staged structure by which judicial reasoning can be made transparent’ (at [408]). In Australia, a ‘restrained approach’ to each stage is necessary because it must reflect the terms and structure of the Constitution and the system of government that the implied freedom supports (at [408]).

Edelman J held that the law at issue in Preston met each stage of the proportionality test, but that in Clubb the issue of justification need not be considered (at [409]ff). Edelman J accepted the conclusion urged by the Attorney-General of the Commonwealth that the communication provision could be ‘severed’ in relation to political communication if it were invalid, and thus there was no need to determine the constitutional validity of the law in its entirety (at [413], [414]). After distinguishing between ‘reading down’, ‘severance’ and ‘partial disapplication’ (see [415]–[433]), Edelman J concluded that the Victorian law could not be read down or severed: severance would involve giving s 185D a meaning as though it contained the words ‘communicating by any means in relation to abortions other than in the course of political communication‘ (at [435], emphasis in original). Excluding political communication here would be an insertion ‘too much at variance’ with the legislature’s language, and would require prosecutors to show a communicaiton was not political (at [436]). But Edelman J held that s 185D could be ‘partially disapplied’: it would apply to non-political communications about termination, but not to political ones, and while might ‘eviscerate the operation’ of the law if most communications were political, it would still operate on the ‘vastly reduced content’ of non-political communication (at [438]–[440]). This possibility of disapplication was sufficient to dispose of the appeal: Clubb would not be affected by the broader constitutionality of s 185D, and thus there is no good reason to adjudicate on that validity (at [441]–[443]).

Moving to the Preston appeal, Edelman J first recounted the facts, legislative scheme, and decisions of the lower courts (at [444]ff), before turning to the requirements of the implied freedom, articulating these in the ‘broad concerns’ of the Lange test as a three stage test: the nature of the burden, whether the law imposing the burden has a legitimate purpose, and whether the effect on political communication is undue or unjustified (at [453]–[454]). Noting that protest is one of the ‘loudest’ forms of political communication, Edelman J accepted that the Tasmanian law did burden the implied freedom (at [455]–[456]). Turning to legitimate purpose, Edelman J noted that the staute did not contain any express statement of purpose, but that its terms, background and social objective indicated that it promoted women’s reproductive health, and specifically allowing access to termination services in safety and without fear, intimidation or distress, and that was a legitimate purpose (at [457]–[459]). Edelman J rejected each of Preston’s characteristations of the purpose as silencing debate or anti-abortion views, noting that these might be its possible effects, but not its purpose (at [460]).

Moving next to justification and proportionality testing, Edelman J noted that in McCloy, Brown, Unions and this appeal, a majority of the Court has avoided phrasing the justificaiton test as focusing on the burden being ‘reasonably appropriate and adapted’ and instead on three-stage proportionality (at [462]). While this is used throughout the world, in Australia it means suitable as rationally connected to purpose, necessary, in that there are no practicable alternatives of similar efficacy and a lesser burden, and adequate in balancing purpose and burden (at [463]). After responding to concerns about proportionality’s foreign origins, its nature as a ‘tool’, that it might be antithetical to the common law process, and how it might develop (see [464]–[471]), Edelman J turned to the three steps. Here, the Tasmanian law was suitable: it prohibited protests, which was rationally connected with its purposes of ensuring safe access to abortion services without being subjected to protestors (at [474]).

It also passed the ‘necessity’ test: there were no reasonably practicable alternatives with a less restrictive effect on the freedom, which Edelman J read as going to ‘depth’ and ‘width’, respectively, a burden that focuses intensely on the conduct prohibited (targeting particular communication types or views), or one that captures more conduct by not including any time, location or subject matter constraints (see [480]). Here, the burden is both deep (targeting protest) and wide (extending to a wide 150m radius), but it is not clear that a smaller radius might have achieved the compelling purposes of the legislation (at [484], [486]). Edelman J also rejected the suggestion that the law could have only targeted communications that are reasonably likely to cause distress or anxiety; it was not clear that any communication near an abortion clinic would not cause anxiety or distress to a person accessing the clinic (at [485]). Edelman J concluded by noting that the conclusion on necessity might not ‘sit comfortably’ with the decision in Brown: here, the area covered by the prohibition is necessary to achieve its purposes, while the powers of the Forest Manager to deny access to areas were a substantial burden that did not further the statute’s purposes (see [487]–[490]).

Finally moving to adequacy in the balance, Edelman J noted the risks of a Court deciding a law was inadequate in its balance as intervening too far into public policy formulation (at [492]), and that in many other jurisdictions this step has been ‘effecviely abandoned’ (see [493]ff). In the Australian context, ‘adequacy’ must be highly constrained, because the implied freedom only arises to protect the constitutional system of reasonable and responsible govenment, which in turn mandates the legislative implementation of policy decisions (at [495]). This leads to a set of constraints: that courts cannot substitute their assessments for that of the legislative decision maker, that inadequacy requires a gross or manifest lack of balance between the burden and the purpose, and that balancing shoudl nto involve rigid categories of review (see [495]–[498]). Here, while the foreseeable burden was deep and wide, the purpose of the prohibition was of great importance of Parliament, and the Act ensures access to termination services without harassment and, at the higher level, with basic issues of public health (at [499]): the burden thus cannot be gross or manifestly disproprtionate to the importance of that purpose (at [501]). Edelman J concluded with a series of comments on constitutional values in foreign jurisdictions, noting that they be treated with caution, and offering a contrast by explaining how the appeal would have been decided in the United States (see [502]–[508]).

High Court Judgment [2019] HCA 11  10 April 2019
Result Appeal dismissed
High Court Documents Clubb v Edwards; Preston v Avery
Full Court Hearings [2018] HCATrans 210 11 October 2018
[2018] HCATrans 208 10 October 2018
[2018] HCATrans 206 9 October 2018
Amicus application (dismissed), Gordon J [2018] HCATrans 181 12 September 2018
Removal to HCA Hearing, Gordon J [2018] HCATrans 60 23 March 2018

News: One-sided oral special leave hearings

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

News: The High Court and the federal election

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

The Last Prasad Direction: Director of Public Prosecutions Reference No 1 of 2017

Yes Mr Gardner. Your Honour, I wanted to rise at this stage to urge Your Honour to consider giving a Prasad invitation to the jury.

Narendra Prasad is one of the unlucky Australians who have a rule of law named after them. But his rule isn’t really a rule, just some dicta (passing judicial commentary.) And it isn’t a really a law, just a practice that judges can choose to use in a criminal trial if they want to. As well, as of last month, it’s a practice they can no longer choose.

Prasad’s brush with the law began with a site at Adelaide’s West End where a Banh Mi shop now sits underneath one of the city’s ubiquitous Polites signs. In between the 1960s (when it was a Scientology HQ) and the 90s (when it was a lesbian bar), the address hosted a string of restaurants: The Brussels, Cedars, Tripoli, Fagans, Rogues, Bandito’s, Katz, and Out. In August 1974, Praspen Estates Pty Ltd, a company Prasad cofounded the previous year, bought Cedars, but he soon sold the company to the restaurant’s owners. Alas, in 1978, Victoria Penley, the other co-founder of Praspen (and the portmanteau’s other half), told police that Prasad sold their company without her knowledge. Prasad was charged with obtaining $7000 from Cedars’ operators under the false pretence that he owned their restaurant outright.

The prosecution’s case against Prasad rested on two witnesses. One was the company’s then lawyer, who contradicted Prasad’s story to the police that Penley gave up her shares because she didn’t want to own a restaurant; however, the since debarred Tennyson Turner’s credibility was, to put it mildly, under a cloud. The only other witness was Penley herself. She denied any transfer, but at times seemed to concede that her husband managed such things for her:

Is it a possibility that you could have signed this share certificate to transfer the shares back to Mr. Prasad and you have now forgotten about it, or didn’t notice at the time-isn’t that just a possibility?  I don’t think so. But isn’t it a possibility?  It could be.

Penley’s husband was not called to testify.

If that strikes you as a fairly thin basis to convict someone of false pretences, you aren’t alone. At the end of the prosecution case, Prasad’s lawyer, Kevin Borick, asked for the charge to be thrown out, but the trial judge and later the full court of South Australia’s Supreme Court ruled that Penley’s testimony was capable of supporting Prasad’s conviction. Nevertheless, two of the full court’s judges, including Len King, the state’s feted Chief Justice, noted that trial judges aren’t limited to either throwing a charge out or letting the trial continue. They have a third option: letting the jury choose whether to acquit immediately or hear the rest of the case.

Just four years later, that option – which was neither sought not used in Prasad’s own trial – was mentioned for the first time in the High Court. Justice Dawson, joining a unanimous ruling overturning a South Australian indecent assault conviction where the prosecution chose not to call the complainant as a witness, observed that the trial judge had refused the defendant’s request to give the jury a ‘Prasad invitation’. In 2006, the practice was mentioned again in the High Court by Chief Justice Gleeson, when he joined a unanimous holding that a NSW trial judge prejudged whether or not to throw out a protection racket charge at the end of the prosecution case. Neither Dawson J nor Gleeson CJ expressed any reservations about the practice, which received its third  and last High Court mention last month in a Victorian case. In Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9, a unanimous joint judgment ruled the practice ‘contrary to law’.

Mr Gardner, you know, I take it, that the direction, if I give it, will be offered to the jury in the context of them only having an option to acquit or to indicate that they want to hear more. Yes, I’m aware of that, Your Honour, and I’ve got an instruction to make this application.

There is a set order in criminal trials in an adversarial justice system like Australia’s. First, the prosecution gives an opening speech to the court and then the defence does. Then the prosecution presents its evidence (witnesses and the like) and then the defence can do the same (or not.) Next, the prosecution gives a closing speech and the defence can too. If there’s a jury, the trial judge will speak to them last. Finally, the verdict.

A fraught question in criminal procedure law is whether and when to deviate from this set order. Sometimes the variations are small ones – slight changes to the order of events, delays and the like – to cope with life’s and the law’s exigencies, matters that all trial judges must deal with ad hoc. But the Prasad issue is part of a much harder question: whether, when and how a trial should stop early if the prosecution case falters. This question pits the criminal justice system’s adversarial nature (where both sides play similar roles) against its accusatorial nature (where the burden of proving guilt falls on the state alone.)

One view is that criminal trials should never end early. In apartheid South Africa, for instance, trial judges were obliged to continue even after the prosecution case failed to prove an element of a crime, because  of the possibility that the defence may nevertheless be bungled in a way that convinces the court of the accused’s guilt. But that rule is roundly rejected nowadays as inconsistent with the accused’s right to remain silent.  Another view, taken in England, is that trial judges can stop a trial if the prosecution case is really weak because of bad, vague or inconsistent evidence. In 1990, the High Court (following earlier Australian courts, including South Australia’s in the Prasad case) rejected that view. The only situation where an Australian trial judge can stop a jury trial early is ‘if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’ Accordingly, it dismissed an appeal by a drug trafficking accused whose trial continued despite the main prosecution witness admitting to repeated lies to the police.

Australia’s rule allows some very flawed trials to continue through to the end. A startling recent example is a murder trial where the main evidence that the accused killed the victim at an isolated rural property was from a man who had moved in with the pair six weeks earlier. As he testified about discovering the accused standing over the victim’s bruised body, the accused shouted from the dock ‘it’s not true’, prompting the following statements by the witness (with Justice Richard Button intervening):

Who said that, how do you know it’s not fucking true I was there. Just a moment, sir. Just answer the questions that the prosecutor asks and then we’ll get through the process. It’s fucking true, Gary.  Just a moment. It’s so fucking true, you gronk. Just a moment, sir. We can’t have people yelling out in court, neither you nor him, otherwise we are not going to get through the process. Fucking murdering cunt. Take a moment and then we’ll– I should have fucking killed you too you cunt.

Now, it’s not every trial where the main prosecution witness seemingly admits to being the actual murderer in open court. And this was just one of numerous bad moments for the prosecution, including Button throwing out all the admissions the accused allegedly made to the police. Button later declared: ‘Since an early stage of the Crown case, I have considered that there is a significant possibility that an innocent man has been arrested, charged, incarcerated for almost exactly 4 years, and ultimately arraigned’.

And yet, consistently with the High Court’s ruling in 1990, he observed: ‘there is certainly some evidence implicating the accused in the death of the deceased; it is no doubt for that reason that no application was made for a verdict by direction by defence counsel’. Instead, the judge – who was deciding the facts without a jury after the accused was found unfit to stand trial – gave himself a Prasad invitation and acquitted the accused, declaring that the ‘continuation of this state of affairs is not to be countenanced’.

And yet, consistently with the High Court’s ruling last month, if the trial had happened just one year later, that state of affairs would have had to continue until the trial ended or the prosecution gave up. In urging the High Court to ban the Prasad process, Victoria’s Director of Public Prosecutions suggested that problematic cases could instead be dealt with by the judge urging the prosecutor to withdraw the case. She added that ‘such circumstances will be rare and should only occur where the issue as to sufficiency of evidence is glaringly obvious’.

Dr Rogers. There’s nothing before the jury about what precisely happened in the unit on the night of the 18th of July 2015. I agree. And in my submission that’s the short answer about why a Prasad direction should be resisted by Your Honour. As Your Honour pleases.

The case that led to the High Court banning the Prasad process is a less rare type of trial where the flaws of the prosecution case are less glaringly obvious: domestic homicide trials where the evidence reveals the deceased’s violence towards the accused.

In July 2015, Gayle Dunlop called the police to report that her long-term partner, John Reid, was bleeding from a fall. In fact, she had struck him with a timber footstool and he died a few days later. The prosecution led evidence of events leading up to Reid’s death that made it clear that Dunlop was the victim of domestic abuse. Her sister and daughter described seeing her bruises and being told ‘It’s none of your business and you know what goes on’. Another witness told of her explaining in front of Reid, a few weeks before he died, that she’d had a fall but later confiding: ‘I think he’s going to kill me’. Two police officers described being called to the couple’s house not long after to remove him at her request. On the night Reid was injured, neighbours heard a heated argument where Reid called Dunlop ‘you whore’. After her emergency call, forensics found her blood at the scene. When she was arrested that night, police initially ignored her requests to speak to her sister. When she finally did, she told her ‘You don’t know what I’ve been through’.

When Dunlop’s barrister Shane Gardner asked for a Prasad invitation at the close of the prosecution’s case, Supreme Court Justice Lex Lasry was initially dubious. He pointed out how such cases often cause public controversy, mentioning  a 1979 Victorian case where the reigning Miss Australia and her son were acquitted of the shooting murder of their husband and father, William Krope, after testifying about his violence and perversions. He noted that Victoria’s current law on the issue was complex and he would need to tell the jury about the fault elements of both murder and manslaughter and the recently amended law on self-defence. Gardner observed that Lasry himself had given a jury a Prasad direction in a complex (but different) homicide case a decade earlier, but the judge reflected on how he had experienced the ‘pitfalls’ of such directions as both judge and counsel, perhaps referring to how the jury in the earlier case ultimately convicted the accused of manslaughter.

Last year, New South Wales’s Justice Richard Button (two months before he gave himself a Prasad direction to end the domestic homicide trial described above) declined to give a Prasad direction to a jury in a still more extreme domestic homicide trial. Not only did the prosecution present multiple witnesses who testified to the deceased’s violence in several relationships and his extensive criminal record, but their case was that the accused fatally stabbed the deceased at the same time as he fractured her skull with a domestic clothes iron. Button’s reasons for declining to use Prasad were similar to those raised by Lasry eighteen months earlier: the complexity of the directions and the fact that self-defence raises not only factual but ‘normative’ considerations about what actions are reasonable:

As I remarked to counsel in discussing the application, such a question perhaps raises all sorts of “sub-questions” about the availability of alternative ways of protecting oneself; about how life is in an outback town as opposed to an urban centre; about possible alternative ways of getting help within an extended relationship marred by domestic violence; and countless other social matters. In short, I felt uncomfortable, with regard to that evaluative judgment, about providing even a “hint” to the jury as to how it should be determined; and, no matter how one expresses it, in my experience that is always how a Prasad invitation is received by a jury.

But the trial soon collapsed completely. Immediately after Button’s decision, the prosecution conceded that the murder charge – brought despite a magistrate refusing to commit her for that crime –  was never sustainable. Then, after several defence expert and character witnesses testified, the prosecution responded to a renewed request for a Prasad direction on the remaining manslaughter charge not only by supporting it, but urging the judge to simply tell the jury to acquit the accused. A flabbergasted Button complied and later ordered the prosecutor to pay the accused’s costs for the trial.

Ultimately, Lasry opted to give Dunlop’s jury a Prasad direction, noting that Victorian law now includes a lengthy provision requiring jurors to fully consider evidence of family violence. After his direction, the jury deliberated for an hour and then returned to say: ‘We would like to hear more evidence.’ Lasry responded: ‘It’s not a now or never. The choice that I offered you this morning is a choice that you can make at any time before the trial concludes’.

Bearing in mind your very economic submission, it is the fact that after the close of the prosecution case the jury has a right to acquit. Yes, Your Honour. What we’re discussing is whether they should be informed of it…

For decades, Canadian judges believed that they could never stop a jury trial themselves. Rather, their practice in cases where the prosecution evidence was inadequate was to tell the jury: ‘Since the accused have been placed in your hands, it is not for me to acquit them.  It is for you to do so’, before directing them that the accused is legally entitled to an acquittal. This lasted until a case reached the Supreme Court of Canada where a juror replied: ‘I don’t think all of us think that it’s not guilty.  Sorry.  Some of us still believe a guilty verdict should go through.’ The juror explained that some of them felt it wrong that they spent four weeks on a case without making a decision. After the judge told them he was happy to discuss the issue, but it had nothing to do with the verdict, the jury acquitted the accused. The Supreme Court responded by modifying the practice so that judges would enter the not guilty verdict themselves.

But what about the opposite situation? In a 1903 English trial, after the prosecution case had closed and the defence started calling its witnesses, the jury stopped the hearing and returned a verdict of ‘Not guilty’. The prosecutor said he wanted to address the jury but the judge told him ‘Your case is finished, and, that being so, the jury are entitled to exercise their right at any moment afterwards to say whether the case has been made out or not.’ Unsurprisingly, an identical practice to the Prasad direction – albeit without the catchy name – has long been and remains part of English law. In 1987, Hong Kong’s Court of Appeal, in response to a prosecutor’s reference, ruled: ‘Yes, there is a right in a jury to acquit an accused at any time after the close of the Crown’s case on the whole or any of the counts in the indictment.’ Citing Prasad itself, the Court of Appeal concluded that a judge has a duty to end a case in some circumstances and power to inform the jury of its right to do so in others, albeit ‘only in the rarest cases and after receiving submissions from counsel.’

The right to acquit ‘at any time’ has affinities to two other better established, albeit sometimes controversial, parts of court practice. One is the High Court’s own recurrent practice of stopping hearing a case after one side concludes its arguments. The Court exercised that power the same week it ended the Prasad direction, telling the parties to a constitutional challenge that it no longer wanted to hear arguments on part of that challenge.  The second is what Americans call the jury’s right of ‘nullification’ and English courts call a ‘perverse verdict’, where jurors acquit in face of the evidence and the law. A famous Australian example occurred in Adelaide several years after Prasad’s trial. In a murder case, where the accused killed her sleeping husband with an axe after discovering that he had been raping their daughters for years, the jury were told that their options were to convict the accused of either murder or manslaughter. They returned and asked how to acquit the accused completely. Two hours later, they did so, to widespread public approval.

Whatever the current status of those rights in Australia (and, indeed, the right of judges deciding alone to give themselves a Prasad direction), the High Court ruled last month that Australian common law ‘does not recognise that the jury empanelled to try a criminal case on indictment have a right to return a verdict of not guilty of their own motion’. The Court dismissed the early English cases on such a right as historical relics and more recent ones as sloppy references to a mere right to act on a trial judge’s invitation. (The justices were seemingly unaware of the Hong Kong ruling.) Rather, the Court held:

It cannot be that the jury possess a personal right to acquit at the close of the prosecution case regardless of the issues that arise for their determination. In cases of legal or factual complexity, a jury may not be able to return a “true verdict”, consistently with the oaths taken by each juror, without the assistance of addresses and the judge’s instruction on the applicable law.

The High Court identified a further problem in trials such as Dunlop’s where more than twelve jurors are empanelled to allow for attrition during the trial. It deemed Lasry J’s decision to ballot off the extra juror while the jury considered the Prasad direction and then having the extra juror rejoin the jury to be ‘a serious departure from the proper conduct of the trial’, apparently because of the possibility that returning juror might hear what the other twelve discussed in private. The Court made no reference to proposals by the NSW Law Reform Commission to put the process Lasry J improvised on a statutory basis or by the Victorian Law Reform Commission to allow enlarged panels of jurors to deliberate on the verdict.

Yes. I meant the important thing is whether or not the original judgment of Chief Justice King in Prasad remains the law and as far as I’m aware it does. Yes, Your Honour.

Dunlop’s defence called two witnesses, a family violence expert (whose testimony was pre-recorded) and Dunlop herself. After the defence case closed, Lasry told the jury that they would now be addressed in turn by the prosecutor, Nanette Rogers, the defence lawyer, Shane Gardner and then himself; however, he also reminded them that their earlier option to acquit at any time stood. The foreman promptly asked for ‘ten minutes’ and (after a juror was again balloted off) the rest returned twenty-two minutes later with a not guilty verdict. The trial – and Gayle Dunlop’s trials – was over.

But Victorian law means that prosecutors can – and did – ask the Court of Appeal to rule on questions of law after a person is acquitted. And that case could – and did – proceed to the High Court because of the Mason Court’s overruling of the Dixon Court’s ban on the High Court getting involved in such matters, over Brennan J’s lone dissent that allowing the Court’s jurisdiction to be invoked in this way:

enhances the influence of the Executive Government on the development of the law and thus diminishes the characteristic capacity of the courts to give an unprejudiced ruling to determine the rights and liabilities of subjects in controversy with Government. To compromise the courts in the discharge of that role is to diminish the guarantee of a free society. In my opinion, so serious a tampering with a constitutional safeguard is not to be justified by pragmatic considerations favouring the declaration of points of law that have been misunderstood.

(The correctness of the Mason Court’s ruling, and its compatibility with the later doctrine barring courts being given powers that compromise their institutional integrity, was not raised before – or by – the Kiefel Court.) In contrast to Hong Kong’s Court of Appeal in 1987, which upheld the Prasad practice in that country but criticised its particular application in the court below, the High Court (at the DPP’s urging)  made a blanket ruling that the entire practice ‘contrary to law’ while barely considering Lasry J’s own decision.

Having held that jurors do not have a right to acquit at any time but only when invited to do so, the Court’s reasons simply balanced the pros and cons of the practice of giving the such an invitation mid-trial. According to the Court, the cons are many:

In summary, the jury are deprived of the benefit of addresses by counsel and the judge’s summing-up; provisional views about the acceptance of a witness’s evidence may be hard to displace; juries are often keen to register their independence and may react against perceived pressure to acquit; the practice is inherently more dangerous in a complex case or one with multiple accused; the prosecution or defence may not have the opportunity to correct a mistaken understanding of their case; and there is a danger, in a case in which the defence is contemplating not calling evidence, of asking the jury if they want to hear more.

The pros, on the other hand, are few: ‘The saving of time and costs, and restoring the accused to his or her liberty at the earliest opportunity’, which the Court deemed minor in straightforward trials. Accordingly, the Court announced the practice ‘contrary to law’ (at least in jury trials.)

Like the pronouncements of jurors and legislatures, the reasons for blanket rulings by the High Court – ones whose terms don’t allow them to be distinguished in future cases – don’t really matter now.  It certainly doesn’t matter that the Court made no mention of (and may well be wholly unaware of): Dawson J’s and Gleeson CJ’s earlier (uncritical) observations on Prasad invitations; the mid-trial practices of any common law country beyond England and Australia (including the contrary ruling by Hong Kong’s Court of Appeal); the recommendations from two Australian law reform bodes on how to manage oversized jury panels in such contexts; or the seemingly lingering issue of whether and when trial judges acting without a jury can stop a trial early. It is unlikely that any of these matters would have changed the Court’s mind, had the justices been aware of them. Nor does it much matter that the Court made no mention at all of the ‘accusatorial’ nature of Australian criminal justice, a staple of its past decisions, or dwelt on how the abolition of Prasad directions would mean that more accused people will be judged (as Prasad himself was) by a jury after they have just witnessed the accused exercise his right to decline to testify.

But I do think it extraordinary that, in 2019, Australia’s apex court can rule on a trial practice that was applied to the benefit of a victim of extreme domestic violence in a homicide trial without any significant consideration of the impact of its ruling in such trials. If the Court had been interested in doing so, the key facts were all there for the justices to see.

The railing up there, then you can see concrete, that’s what you walk on, but there’s a little bit of concrete that protrudes past that fence on the outside. So when he’s done that I’ve managed to grab onto the concrete and hold on. Thank you Ms Dunlop. That completes your evidence, you can go back to the dock. Thank you. 

The appeal book – the book of materials placed before the justices for their consideration –  contains extracts of the trial that prompted the DPP’s request for the High Court to ban the Prasad direction. It shows how Shane Gardner pointedly told Lex Lasry that he sought a Prasad direction at the ‘instruction’ of his client. It reveals that, after the jury opted to hear more of the case, Gardner immediately told Lasry that his client ‘asked me to raise with you’ her concern about having to testify over two days rather than one given the evidence ‘involves a number of deep sensitivities’ (prompting Lasry to wave the usual trial order and let the defence present their lone expert witness first.) While the appeal book skips nearly all of Gayle Dunlop’s testimony, it includes the very last piece of evidence the jury heard before they acquitted her: Gardner asking her to mark a photograph of the flat she shared with Reid so that the jury could see exactly where she hung from a first-floor balcony after her de facto threw her over the edge.

Had any or all of the Court’s seven justices read this material, I find it hard to believe that they would have described the sole or even main benefits of the Prasad process as ‘saving of time and costs, and restoring the accused to his or her liberty’.  Gayle Dunlop didn’t ask her lawyer to seek a Prasad direction to save the Supreme Court money and I think it unlikely that her concern was to end her 497 day stay in prison a day or two early. Rather, her goal was surely to avoid having to relive the horrors of life with her abusive partner on the witness stand.

Likewise, had the justices contemplated this sequence of events for more than a moment, I doubt that they would have been willing to dismiss jurors who seek to acquit early as disregarding their oaths by acting ‘without the assistance of addresses and the judge’s instruction on the applicable law.’ Rather, it is clear that the jury, having heard Dunlop’s testimony, were strongly motivated not to keep her waiting a moment longer to learn her fate. Can anyone doubt that they already knew at that stage that three more speeches from lawyers and a judge would never overcome what they had just heard from her mouth.

Speculation aside, what we know for sure is that Justice Lex Lasry saw fit to give the jury this option to do so in this particular case, despite his full awareness of the difficulties and even risks of the practice. He would surely be horrified to learn that his compassion and care for a victim of years of abuse would prompt a less careful and compassionate non-trial court to forever bar that option for future Australian judges.

But I am sure that he would have no regrets. Marking Lasry’s retirement last year, John Silvester wrote:

If you want to make Lasry cry, there is a simple way. Put on the iconic Al Pacino speech in Scent of a Woman, the final scene in Dead Poets Society or the climax of 12 Angry Men. “No matter how many times I see [them], they always get me.”

I suspect he also cried a little as he gave Dunlop’s jury his final direction:

Members of the jury, the only thing that remains for me to do now is to thank you for your service. We’ve been together now for over a week and and I’m sure you, if you didn’t already know, I’m sure you now clearly understand what an important responsibility jury service is. So on behalf of the community and in particular on behalf of the court can I thank you for your commitment to the case. It’s not been an easy case for all the reasons that are obvious, I don’t need to recount them. If I may say so, and I say this extremely rarely, in my opinion your verdict was a most appropriate verdict and brings this awful saga obviously to a conclusion.

Six special leave grants this quarter

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

News: Vexatious litigants and the High Court

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

News: The Court and the Conferences

Last week, the High Court spent the better part of four days on a single case, a challenge to Queensland’s ban on political donations by property developers. Such lengthy hearings no doubt impose all manner of burdens on the many judges and lawyers involved — all seven High Court justices and eight of Australia’s nine Solicitors-General (with only the Northern Territory’s Sonia Brownhill absent) together with the challenger’s counsel, Jeremy Kirk, not to mention the various associates, juniors and solicitors tending to each of them. Chief Justice Kiefel repeatedly indicated that ‘the Court would be assisted if it concluded around lunchtime on Friday.’ Her timetable was met, in no small part, because of her statement to Queensland’s Solicitor-General on the case’s third day:

Mr Solicitor, the Court will not require further submissions on whether the basis for or justification for the Queensland legislation is distinguishable from that in McCloy.

Half an hour later, he checked her meaning: ‘I take it your Honours want no submissions — your Honours are not looking for any submissions on the implied freedom at all?’ ‘That is correct’, Kiefel CJ confirmed. The argument that the political donations law breached the Constitution’s free speech rule was over, but the other arguments that the law breached the Constitution’s federalism rules remained.

When the law breaks so slow or so fast, spare a thought for the organisers of Australia’s constitutional law conferences. Continue reading

Northern Territory v Griffiths (Deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples

The High Court has allowed two appeals in part and dismissed one appeal from a decision of the Full Federal Court on compensation payable for the extinguishment of native title rights and interests.

Between 1980 and 1996, NT was responsible for 53 acts of granting tenures and constructing public works in the town of Timber Creek that were held to have impaired or extinguished native title rights and interests held by the Indigenous townspeople (the Claim Group). Pursuant to s 51 of the Native Title Act 1993 (Cth), the Claim Group’s compensation claim was framed as including: first, compensation for economic loss of native title rights to be determined as if each act were equivalent to the NT compulsorily acquiring a freehold estate in the land; secondly, compound interest on that loss from the date of assessment until judgment; and thirdly, compensation for loss or diminution of connection or traditional attachment to land, and the intangible disadvantages from lost rights to live on and gain spiritual and material sustenance from the land, as assessed at the time of trial (see at [11]). Mansfield J, at trial, assessed the compensation amount at $3.3 mil: $512,000 as 80 percent of the total freehold estate value, $1.4 million in simple interest, and a cultural loss of $1.3 million. The Full Court reduced the economic loss factor from 80 percent to 65 percent, but otherwise affirmed Mansfield J’s conclusions.

Before the High Court, the NT and Commonwealth contended that the FCAFC erred in assessing the economic loss at any more than 50 percent of the freehold value and erred in upholding the $1.3 million cultural loss (see [16], [17]). The Claim Group contended that the FCAFC erred in further reducing the freehold value to 65 per cent, that the economic loss should be the freehold value without any reduction at all, and that the Full Court also erred in upholding the interest on a simple, rather than compound, basis (at [15]).

The High Court unanimously allowed in part the NT and Commonwealth’s appeals, holding that the economic loss compensation should be reduced to 50 per cent of the freehold value of the land. The Court rejected the appellants’ arguments against the cultural loss amount, upholding the trial judge’s original determination of $1.3 million. The Court also dismissed the Claim Group’s arguments against any reduction, and on compound rather than simple interest. Continue reading

News: High Court protects Lawyer X’s children

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

News: Many Australians say they ‘don’t know’ whether or not Australia’s High Court freed OJ Simpson

“[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

News: High Court joins Twitter

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

News: Honours for Their Honours

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

Goodwill and Valuations: Commissioner of State Revenue v Placer Dome Inc

By Barry Diamond

How is a mining company valued? Does it have goodwill? How does the goodwill analysis impact the valuation of the company’s land? What role do the facts, evidence and relevant taxing statute (the context) have to play in the analysis? These were the key questions to be answered by the High Court  in Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59. The decision arose from a Western Australian stamp duty dispute, but it has implications far beyond stamp duty. It is significant for what it says about approaches to valuation methodology and evidence, the nature of goodwill and the contexts in which each of these things are  considered. Placer Dome Inc was a substantial gold mining company with land and mining tenements around the world, including in WA. Barrick Gold Corporation was one of the largest gold mining companies in the world. Barrick led a hostile takeover of Placer. The acquisition was the largest of its kind in the gold industry. The amalgamated entity was to become the world’s largest gold mining business.

The decision concerned the ‘land rich’ rules in the former Stamp Act 1921 (WA) (and which have since been replaced with ‘landholder’ rules). Under these rules, a corporation was land rich if 60 per cent or more of the corporation’s total property (by value) comprised land (situated anywhere in the world). The land rich ratio was therefore total land (the numerator) divided by total property (less certain property excluded by the Stamp Act) (the denominator). If a person acquired a controlling interest in a land rich corporation, stamp duty was payable on the value of the corporation’s landholdings in WA.

Was Placer Dome ‘land rich’?

The Commissioner of State Revenue assessed Barrick’s acquisition for duty of $55 million on the basis Placer was a land rich corporation. Was this correct?  The answer to this question required a closer examination of the numerator and denominator of the land rich ratio. Was the land (numerator) correctly valued? Was the total property (denominator) correctly identified and valued, and, in particular, was there goodwill (of substantial value) which could be included as property in the denominator? Continue reading

Australian Securities and Investments Commission v Lewski

The High Court has allowed in part an appeal against a decision of the Full Federal Court regarding civil penalty proceedings by the Australian Securities & Investments Commission (“ASIC”) against five directors of a failed aged care and retirement trust, concerning whether they breached their duties when they amended the trust’s constitution. It was held that the Full Federal Court erred when it held that certain amendments had “interim validity” unless and until they were set aside, and that the directors had been entitled to act in accordance with their honest belief the amendments were valid. Consequently, the directors had breached various provisions of the Corporations Act 2001 (Cth) to take reasonable care, to be loyal to members of the trust, to not use their position improperly, and to comply with the legal requirements for amendment. However the Full Federal Court was correct to conclude the directors were not “involved in” a contravention of s 208 of the Corporations Act.

Continue reading

News: Five new special leave grants bring the yearly total to 35

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

The Travesty in the Background to AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym): JB v The Queen

By Edward Elliot

On 3 December 2018 the High Court of Australia made public its decision in AB (a psuedonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58 which in effect revealed that a Victorian barrister had been operating as a police informant, including providing information against her clients’ interests. The identity of the barrister remains suppressed until 5 February 2019, giving her time to enter the witness protection program and take steps to ensure the safety of herself and her children.

Since the High Court’s decision, there has been considerable concern expressed as to how it was police could have considered it appropriate to use a defence barrister as an informant and whether the integrity of the criminal justice system has been called into doubt. Responding to such concerns, the Government of Victoria has announced a Royal Commission to examine the circumstances of the affair, although its scope has not yet been determined.

Jeremy Gans has recently posted his take on the case, along with his hope that the Victorian courts will in due course reflect on their role in the matter. In this post, I will outline the tale of JB, a minor convicted of murder in NSW and ultimately acquitted. The history of litigation in JB reveals the vulnerability of the courts to being caught up as innocent agents in hidden injustices. This is particularly so where the Crown — and perhaps more so the police — dictate if and when information about informant status is disclosed. Finally, at the end of the post I will consider what mechanisms might be available to defendants who are affected by the AB decision and consider how the courts might deal with any resultant appeals.

The Crown against JB

In April 2008, JB, then aged 15, was caught up in a brawl between two groups of youths in Granville, an outer suburb of Sydney. During the brawl, one participant who had withdrawn and become a bystander was stabbed and later died. The police assembled a circumstantial case against JB, including CCTV of the initial of the brawl (but not the stabbing) and witness statements, before arresting him. Continue reading

News: The Court reveals a legal scandal

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

News: Putting names to pseudonyms

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

The Penultimate Peril: Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors

“Here are your blindfolds,” said one of the managers, opening the door and handing the children three pieces of black cloth. The Baudelaires suspected he was Ernest, as he hadn’t bothered to say ‘Hello.’ “Blindfolds?” Violet asked. “Everyone wears blindfolds at a High Court trial,” the manager replied, “except the judges, of course. Haven’t you heard the expression ‘Justice is blind’?”

Tony Strickland, according to Wikipedia, is a former Californian legislator who twice failed to make the jump to the US Congress. Strickland’s fellow High Court appellant, Donald Galloway, has a longer entry in the Internet’s encyclopaedia thanks to his prominent roles in 1960s procedural Ironside and 1980s soap General HospitalThe third man arrested alongside them on Friday 1 July 2011 doesn’t satisfy Wikipedia’s significance criterion; however, Google reveals that one Edmund Hodges is seeking a female penpal willing to overlook his imprisonment for a dramatic Chicago bank heist. Joining Strickland, Galloway and Hodges at the apex court is Rick Tucker, who was charged nearly two years after the others and whose name appears alongside Buddy Holly’s and Roy Orbison’s on various YouTube clips.

The only thing that the ex-legislator, ex-actor, ex-heister and ex-singer actually have in common is that their names were generated by one of the following websites:

Victoria’s Court of Appeal uses these sites ‘to comply with the state’s ubiquitous suppression laws, while avoiding the ‘alphabet soup’ problem posed by using initials instead. As Gageler J explains in Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors [2018] HCA 53, the quartet’s pseudonyms are courtesy of ‘orders of the Supreme Court of Victoria, unchallenged in the appeals and made for reasons not revealed in the appellate record.’

All we really know about the four appellants is that they are either managers or employees of two companies that were given the (soupy) pseudonyms XYZ Ltd and QRS Ltd, presumably to the chagrin of a colour management company in Clayton South and a third party support company in Worcestershire. While all four men have appeared twice in Victoria Court of Appeal judgments in 2014 and 2017, the High Court judgment is the first time we learnt what they were actually arrested for in 2011 and 2013; Gageler J and Edelman J reveal that all four were charged with the federal offence of conspiracy to bribe a foreign public official and that three (excluding Tucker) were also charged with the Victorian offence of dishonestly falsifying a document for an accounting purpose. Each offence carries a maximum penalty of ten years in prison.

Well, there are two more things we now know. Justice Edelman quotes Strickland’s own counsel as admitting that the four were ‘”sharks”, not “minnows”‘. And a majority of the High Court has ruled that none of these sharks can ever be tried for their alleged crimes. Continue reading

News: Court’s workload in March and April 2019 is ‘extraordinarily large’

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

News: Two cases beat the odds on special leave

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

Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors

The High Court has allowed appeals by four criminal defendants, upholding a trial judge’s stay of their prosecutions. The defendants were employees or managers of a company whose suspected criminal activity was first reported to the Australian Crime Commission in December 2008. Five months later, the ACC decided not to investigate the company but instead referred its alleged crimes to the Australian Federal Police. In 2010, pursuant to an agreement between the ACC and the AFP, an ACC examiner questioned the four defendants. In each case, the defendants first declined a request to participate in interviews under caution with the AFP and then were required to answer the examiners questions under threat of criminal punishment. The examiner, despite being aware that all four were criminal suspects, allowed between six and nine AFP officers to secretly watch the examinations from an adjoining room and made directions that permitted the examination recordings and transcripts to be made available to the AFP investigators and the staff of the Commonwealth Director of Public Prosecutions. The defendants were later charged with the federal offence of bribing a foreign official and the Victorian offence of false accounting. The trial judge found that the examinations were authorised by the ACC Act, but ordered a permanent stay of the prosecutions. Victoria’s Court of Appeal unanimously reached the opposite conclusions, holding that the examinations were illegal, but overturning the stay. At both the trial and (over the defendants’ objections) the appeal, the ACC was given leave to intervene.

A 5-2 majority of the High Court (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ, Gageler and Gordon JJ dissenting) allowed the defendants’ appeal to the High Court and dismissed the Cth DPP’s appeal to the Court of Appeal. Citing suppression orders made in other courts, the Court temporarily barred the public release of the full, unredacted reasons for judgment until 10am on 14th November 2018. As noted by Gageler J at [116], ‘[b]y orders of the Supreme Court of Victoria, unchallenged in the appeals and made for reasons not revealed in the appellate record, the appellant in each appeal has been assigned a pseudonym. The appellants are referred to as Mr Strickland, Mr Galloway, Mr Hodges and Mr Tucker. The company for which all of them once worked has been assigned the pseudonym XYZ Ltd.’

Legality of the examinations

The Court unanimously upheld the Court of Appeal’s finding that the ACC examiner’s questioning of the four defendants  was unlawful. Continue reading

Comptroller General of Customs v Zappia

The High Court has allowed an appeal against a decision of the Full Federal Court on the definition of persons who ‘has, or has been entrusted with, the possession, custody or control’ of goods on which customs duty is payable. Zappia worked for his father and his father’s company, Zaps Transport (Aust) Pty Ltd, as its warehouse and general manager and, as notified to the Australian Taxation Office, Zappia was one of the people who participated in management and control of the warehouse. Following the theft of tobacco products from the warehouse, the ATO served a notice of demand under s 35A(1) of the Customs Act 1901 (Cth) to Zappia, his father and Zaps. Section 35A(1) provides that

Where a person who has, or has been entrusted with, the possession, custody or control of dutiable goods which are subject to customs control:

(a) fails to keep those goods safely; or

(b) when so requested by a Collector, does not account for those goods to the satisfaction of a Collector in accordance with section 37;

that person shall, on demand in writing made by a Collector, pay to the Commonwealth an amount equal to the amount of the duty of Customs which would have been payable on those goods if they had been entered for home consumption on the day on which the demand was made.

The ATO notices stated that each failed to keep the goods that were stolen safe, and demanded the payment of the customs duty that would have been payable on the tobacco products. The Administrative Appeals Tribunal affirmed each ATO notice, finding that the products were not safely kept, and that Zappia, his father, and Zaps each exercised control over the products (at [18]). Continue reading

SAS Trustee Corporation v Miles

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on pension entitlements for disabled members of the police force. The respondent Miles was injured on duty and medically discharged from the police force in 2003. He was certified under s 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) as being ‘incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer’ on the basis of four orthopaedic injuries, and, in accordance with s 10(1A)(a) of that Act, was entitled to a superannuation allowance equal to 72.75 per cent of his salary (at [12]). Under s 10(1A)(b)(ii), a disabled police officer is, subject to some conditions, entitled to an additional amount that is ‘commensurate, in the opinion of [the appellant, the SAS Trustee Corporation], with the member’s incapacity for work outside the police force’. From 2004 onwards, Miles made a number of applications under s 10(1A)(b) to increase his superannuation allowance, including to recognise a diagnosis of post-traumatic stress disorder in 2009 (see at [13]ff). A majority of the NSWCA held that ‘incapacity for work outside the police force’ meant an incapacity for work, whatever the cause, rather than an incapacity for work caused by being hurt on duty while a police officer (the view taken by Schmidt J in dissent, and Judge Neilson at the NSWDC).

The High Court unanimously allowed the appeal. The joint judges (Kiefel CJ, Bell and Nettle JJ) held that the phrase ‘member’s incapacity for work outside the police force’ means an incapacity from a specific physical or mental infirmity determined to have been caused by the member being hurt while on duty as a police officer. The joint judges began by recounting the statutory provisions and facts ([2]ff), before reiterating that s 10(1A)(b)(ii) allows for a constructional choice between the additional amount being paid for incapacity regardless of the cause of injury (the respondent’s contention) and paid only for the incapacity caused by being hurt on duty as a police officer (the appellant’s contention) (see [17][19]).

Noting that the starting point for statutory construction is the text of the provision in light of its context and purpose, the joint judges held that textual and contextual indicators in surrounding provisions operated to limit s 10(1A)(b)(ii) (at [20]). Section 7 suggested, or at least was consistent with, the legislative intention that no allowance be paid on work incapacities not caused by being hurt on duty (at [21]). The use of cognate phrases like ‘incapacity’ in nearby sections (see [22], [23], [26]), the additional amount being commensurate with ‘abnormal risks’ that the member was exposed to (at [24]), the unlikelihood that additional amounts by reference to risk extended to risks unconnected to police work (at [25]), and that no allowance is payable for members who resign or retire due to an injury that has not been determined under s 10B(3) (at [27]) together suggest that incapacity means one caused by being hurt on duty. The joint judges also rejected the  NSWCA majority and respondent’s suggestion that the power to vary an additional amount ‘at any time’ do not run counter to the section applying only to incapacities relating to on duty injuries (at [28]), and the respondent’s argument that recent case law supported their contentions (at [30]ff). Finally, the joint judges held that the appellant’s construction was consistent with the Act’s legislative history and extrinsic materials (see [33]ff), and rejected the respondent’s final contention that inconsistent requirements for SAS to seek medical advice at some points in the process suggested the respondent’s construction was correct: these points did nothing to lessen the force of the joint judges’ earlier considerations in favour of the appellant’s view (at [38ff]).

Gageler J agreed with the orders of the joint judges, endorsing the conclusions of Schmidt J on the NSWCA. For Gageler J, the ‘elaborate structure’ of determining the additional  allowance under s 10(1A)(b) or (c) works coherently if, and only if, the incapacity for each is the same incapacity, and that it is determined to have been caused by the member being hurt on duty (at [53]). The alternative construction of s 10(1A)(b)(ii) taken up by the NSWCA, that it refers to incapacity regardless of the source of incapacity, is textually available, but would distort the complementary operation of sub-ss (b) and (c) (at [56]).

Edelman J also agreed with the orders of the joint judges. Edelman J noted that the respondent’s argument encounters a textual difficulty where s 10(1A) is read with the definitions in the Act: the allowance is ‘for’ both a person and a purpose, where the person must be a police officer and the purpose must be to provide for an incapacity ultimately caused by the member being hurt on duty (at [62]). The ordinary meaning of s 10(1A) requires the allowance to be confined to that purpose (at [63]), and the wider context and purpose aligns with and reinforces that natural meaning (at [65]).

High Court Judgment [2018] HCA 55 14 November 2018
Result Appeal allowed
High Court Documents SAS v Miles
Full Court Hearing [2018] HCATrans 147 16 August 2018
Special Leave Hearing [2017] HCATrans 208 20 October 2017
Appeal from NSWCA [2017] NSWCA 86 4 May 2017
Trial Judgment
[2016] NSWDC 56 11 April 2016

News: Court restricts publication of its reasons for ending a criminal prosecution

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

McPhillamy v The Queen

The High Court has allowed an appeal against a conviction for child sexual abuse. The defendant, an acolyte at St Michael’s and St John’s Cathedral in Bathurst, was accused of sexually assaulting “A”, an altar boy under his supervision, on two occasions in 1995-1996 in the public toilets of the church. At the trial, the prosecution was permitted to call evidence from “B” and “C”, two students boarding at St Stanislaus’ College in Bathurst, that the defendant, their boarding master, assaulted them in school bedrooms while purporting to comfort them in 1985. The trial judge directed the jury that “If you find that [the appellant] had a sexual interest in male children in their early teenage years, who were under his supervision, and that he had such an interest in ‘A’, it may indicate that the particular allegations are true.” The jury convicted the defendant of the charges relating to “A” and a majority of the NSW Court of Criminal Appeal dismissed his appeal.

The Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) allowed the defendant’s appeal at the end of the oral hearing. Continue reading

Republic of Nauru v WET040 [No 1] and [No 2]

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on testing the credibility of refugee claim evidence and the obligation for the Nauru Refugee Status Review Tribunal to give reasons for its decision.

On 7 November 2018, the Court (Gageler, Nettle and Edelman JJ) held that Nauru’s October 2017 invocation of the High Court’s jurisdiction under s 5 of the Nauru (High Court Appeals) Act 1976 (Cth) was valid. While the Agreement underpinning that statute was terminated on 12 December 2017, with effect from 13 March 2018, the agreement to terminate provided that it would not affect proceedings instituted before the date of termination (at [8]). Once the proceedings were instituted by filing the notice of appeal, the procedure applicable to them was governed entirely by the High Court Rules, not the termination agreement, and thus the Court still has the power to determine the appeal (at [10]ff).

The respondent is an Iranian national who applied for refugee status on the basis that, following the breakdown of his marriage, he began to receive violent threats from his family in-law and what he claimed were false allegations of domestic abuse against his wife, and that, if returned to Iran, he feared that his father-in-law would use his connections within the state to have him imprisoned or killed (see [5]ff).

After the Nauruan Secretary rejected his claim, the respondent claimed that he fled Iran on the basis of political and religious opinion, and that his in-laws were Islamic fundamentalists and, in the case of the father-in-law, a member of a fundamentalist state security organisation (see [12]ff). The Tribunal responded to each of these ‘shifting set of explanations’, rejecting the respondent’s account (at [16]ff). On appeal, the Supreme Court of Nauru (Crulci J) held that the Tribunal’s findings against the credibility of the respondent’s account were unsound and that it had not given full reasons for its decision: in dealing with credibility, an event was only ‘implausible’ if it was ‘inherently unlikely’ or involved ‘basic inconsistencies’ in the evidence or country information (at [25]), and the Tribunal had not follow that standard.

The Court (Gageler, Nettle and Edelman JJ) held that that Crucli J had erred. Her Honour’s reasoning was based on a judgment that was later overtuned on appeal, misemphasised the observations of the FCAFC majority in another case, and, most importantly, mischaracterised the Tribunal’s implausibility findings as speculative, conjecture or unsupported by basic inconsistencies (at [26]). The Tribunal had soundly reasoned that the respondent had changed his evidence and given an improbable account of events, in each case making rational inferences from doubts about his account (see at [27]ff). Regrading the appellant’s argument that, even if the Tribunal had not given full reasons for its findings of implausibility, the reasons it did give would have satisfied the statutory requirements (at [37ff]), the High Court held that the adequacy of reasons ultimately turns on the facts and circumstances of each case, and that the Tribunal’s extensive reasons clearly met that standard (at [39]).

The Court ordered that the judgment of the Supreme Court of Nauru be set aside and in its place an order that the appeal to that Court be dismissed.

High Court Judgment [2018] HCA 60 5 December 2018
Result Appeal allowed
High Court Documents WET040
Order Extending Appeal [2018] HCA 56 7 November 2018
Full Court Hearing [2018] HCATrans 230 7 November 2018
Appeal from NRSC [2017] NRSC 79 28 September 2017

Wehbe v Minister for Home Affairs

The High Court has dismissed an application to extend the time limit on an application to the Court for judicial review under the Migration Act 1958 (Cth), and also dismissed the plaintiff’s application for an order to show cause. The plaintiff’s migration agent made a series of errors on her application for a partnership visa, including a misstatement made to the Minister’s delegate. That misstatement regarded the plaintiff’s marriage status: she had been married in Iran in 2014, that relationship came to an end in 2015, but she did not have an official divorce decree, and the certificate of her second marriage to an Australian citizen in 2017 described her as ‘Never Validly Married’ (see [3]ff). The delegate refused the application on the basis that the applicant had provided ‘a bogus document or information that is false or misleading’, namely the ‘Never Validly Married’ marriage certificate, the statement in the application that she had been previously married, and the agent’s response that the divorce was still in progress (see [9]ff). Despite the agent emailing the delegate to attempt to explain the misstatement, the delegate stated that no information had been received to consider a waiver of the condition, and that the decision would stand (at [12]ff). The agent also Continue reading

News: Special leave grants lowest in a decade

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

WET052 v Republic of Nauru

The High Court has dismissed an appeal from the Supreme Court of Nauru on applicant credibility in the evaluation of a claim for refugee status. The appellant fled Iran, arrived on Christmas Island and was transferred by the Australian Government to the Republic of Nauru in 2014. In the course of his transfer interview, he stated that he had been subject to multiple instances of domestic violence from his alcoholic and drug-addicted father, who forced the appellant to work to support his addictions, and whom he feared would kill him if he was returned to Iran (at [2]). The appellant claimed refugee status on the basis that, if returned to Iran, he would be persecuted by the government due to his association with and financial support for his father, whose alcohol and drug-addictions were contrary to Sharia law, and further that his father had connections with the police and paramilitary groups which he might use to find and harm the appellant (at [5]ff).

The Secretary of the Department of Justice and Border Control determined that the appellant was not a refugee and not owed complementary protection: the Secretary did not accept that the appellant’s father was a Continue reading

ETA067 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on the assessment of evidence and procedural fairness in refugee determination processing. The appellant claimed refugee status on the basis of his affiliation with the Bangladesh Nationalist Party (BNP) and his actual or imputed opposition to the Awami League, claiming that, after leaving the BNP for several reasons, including the ‘anarchy’ of violent clashes, he came under pressure from the Awami League to join them (at [2]–[3]). In March 2015, the Nauruan Secretary of the Department of Justice and Border Control rejected his claim for protection, and on review the Refugee Status Review Tribunal affirmed that decision, finding that the appellant had not suffered harm amounting to persecution, and that his fear of future persecution was not well founded, and, even if it were, that threat would be localised to the suburb of Dhaka from which he fled (at [4]).

After the NRSC affirmed that decision, the appellant appealed to the High Court, contending that the NRSC erred in failing to find that the Tribunal failed to assess the relevant evidence of assaults by the Awami League against people who refused to join them, and failed to give the appellant the opportunity to ascertain or comment on whether he was a formal member of the BNP, contrary to the principles of natural justice (at [5]). Continue reading

Johnson v The Queen

The High Court has dismissed an appeal concerning evidence of other misconduct in a historic child sexual abuse prosecution. The accused, aged 58, was convicted of three sexual offences against his younger sister (by two years and ten months): carnal knowledge when the accused was 17 and the complainant was 14; rape when the accused was 28 and the complainant was 25 and a second rape when the accused was 29 and the complainant was 26. At the trial, the prosecution also presented evidence of other sexual incidents, including in a bathtub when the accused was 6 and the complainant was 3; in an implement shed when the accused was 8 and the complainant was 5; in a bedroom when the accused was 9 and the complainant was 6; in a shearing shed when the accused was around 10 and the complainant was around 7; and persistent sexual offending when the accused was aged 18 to 20 and the complainant was aged 15 to 17. The accused was originally convicted of offences in relation to the shearing shed and the persistent sexual offending, but these were quashed by the Full Court of the South Australian Supreme Court on the grounds that the accused was too young to be criminally responsible for the shearing shed incident and the evidence of the persistent sexual offending was too imprecise to support a conviction for that offence. The Full Court nevertheless upheld the accused’s convictions for carnal knowledge and two rapes.

The High Court (Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ) unanimously dismissed the accused’s argument that he should be retried on the remaining convictions because the prosecution offered evidence of the other uncharged (or charged, but incapable of sustaining a guilty verdict) incidents. The joint judgment noted (at [17]) that the Court’s recent ruling in Bauer v The Queen means that evidence of uncharged acts involving the complainant and the accused ‘will commonly have very high probative value as circumstantial evidence of the accused’s propensity to act on his or her sexual attraction to the complainant’; however, despite originally asking to use the evidence in this way, the prosecution in this case did not use the evidence for that purpose at the trial. The probative value of such ‘non-propensity’ evidence – to place otherwise inexplicable evidence in context; or to explain the complainant’s or accused’s conduct – ‘lies in its capacity to assist in evaluating the evidence of the offence’, while its prejudicial effect ‘is concerned is the risk that the jury will make some improper use of the evidence’ ([19]). There is seldom such a risk when the evidence is sourced from the complainant, especially where the jury is carefully directed on use ([20]) and there is no logical reason why the length of time since the alleged events will increase this risk ([21]).

The joint judgment held that the evidence offered to support the count of persistent sexual abuse, although inadequate for that purpose, was important to the evaluation of the two counts of rape. Continue reading

Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd

The High Court has dismissed an appeal against a decision of the Full Federal Court of Australia regarding the principles governing the causal link required for the imposition and calculation of an account of profits where profits were made by a knowing participant in a dishonest and fraudulent breach of fiduciary duty, and has allowed a cross-appeal by a majority, holding that there was no reason to restrict the profits recoverable to five years. Consequently a knowing assistant of a dishonest and fraudulent breach of fiduciary duty was required to disgorge the total capital value of the business it acquired by reason of the breach.

Continue reading

Rodi v Western Australia

The High Court has allowed an appeal against a conviction for possessing cannabis with intent to supply. After executing a search warrant at the accused’s home in the Perth suburb of Madeley, police found almost a kilogram of cannabis head material inside the home and three cannabis plants behind the house. The accused’s case was that the cannabis was for personal use and was harvested from two of the three plants. Anticipating that evidence, the prosecution called Detective Sergeant Andrew Coen, who testified that a cannabis plant typically yields 100 to 400 grams of cannabis and that ‘head material’ at the upper range is rare. Following his conviction, the accused appealed, relying on new information that Coen had testified in two earlier trials that cannabis plants typically yield 300 to 600 grams of cannabis head material. After hearing evidence from Coen as to why he had changed his view prior to the accused’s trial, a majority of Western Australia’s Court of Appeal dismissed the appeal.

The High Court (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ) unanimously allowed the appeal. The joint judgment held (at [30])  the factors relied on by the Court of Appeal to dismiss the appeal – that the accused bore the onus of proof on the question of intent, and that the accused had not called his own expert testimony, or objected the Coen’s trial testimony, or that the prosecution’s non-disclosure of Coen’s testimony were understandable – were ‘irrelevant to whether there was a significant possibility of a different verdict if the new evidence had been before the jury’. Nothing turns on whether only Coen’s earlier testimony or also Coen’s testimony at trial is treated as fresh evidence ([31]); either way, Coen’s earlier testimony was ‘distinctly apt’ to improve the accused’s prospects of a favourable verdict. Continue reading

News: The High Court’s birthday pinch

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

Pipikos v Trayans

The High Court has dismissed an appeal against a decision of the Supreme Court of South Australia regarding the principles governing the doctrine of part performance (namely, when an otherwise unenforceable oral contract over land can be recognised by the court because of acts of part performance of the agreement, so as to support an award of specific performance). The question raised was whether the requirements of the doctrine of part performance should be relaxed, although it was not suggested that the test should be quite as liberal as the test proposed by the House of Lords in Steadman v Steadman [1976] AC 536, which merely required that the acts pointed on the balance of probabilities to the formation of a contract. The Australian test has hitherto reflected that expressed in Maddison v Alderson (1883) 8 App Cas 467, which requires the acts of part performance to be unequivocally referable to some such contract as alleged. The High Court confirmed that the Australian position remains the same, and declined to adopt Steadman v Steadman or to relax the test in any way.

Continue reading

The Queen v Dennis Bauer (a pseudonym)

The High Court has allowed a Crown appeal against a decision of Victoria’s Court of Appeal that had quashed the defendant’s convictions on 18 counts of sexual offences. When he was first tried in 2014, the defendant was charged with 37 counts against five complainants related to events between 1967 and 1998 and convicted of 33 of those. However, the Court of Appeal quashed those convictions in 2015, criticising the prosecution for overloading the indictment. The defendant then faced a series of separate (and in five instances aborted) trials relating to the three of the complainants and was acquitted in relation to two of them. The High Court appeal concerns the defendant’s 18 convictions a 2016 trial in relation to the third complainant, his foster daughter, for alleged sexual offending between 1988 and 1998, when she was aged between 4 and 15 and the defendant was between 42 and 53.

In 2017, the Court of Appeal quashed the defendant’s convictions for the second time and ordered a new trial, on three broad grounds. First, that the jury should not have been shown a recording of the complainant’s evidence at a previous trial, because her expressed strong preference not to testify was not sufficient to justify such a step. Second, that the jury should not have been told of evidence of uncharged sexual offences by the defendant against the complainant, because such evidence did not satisfy the requirement of ‘significant probative value’. Third, that the jury should not have been told that the complainant described the accused’s offending to a school friend in 1998, as there was no evidence that the events were ‘fresh in her memory’ when she described them and her description was too generic to have any probative value.

The High Court (Kiefel CJ,  Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ) unanimously allowed the Crown’s appeal, rejecting all three grounds of appeal relied upon by the Court of Appeal. Continue reading

News: The Court unites on child sexual abuse prosecutions

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, 20062008, 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

News: A gap in the Court’s revised October list

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

News: Challenge to Murray/Darling Royal Commission dropped

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

HFM043 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the construction of derivative refugee status provisions. In September 2014 the Secretary of the Department of Justice and Border Control denied the appellant’s application for refugee status. In March 2015, the Nauruan Refugee Status Review Tribunal affirmed that decision, and the appellant appealed to the Supreme Court. In April 2016. the appellant married a man who had been recognised as a refugee. The appellant’s lawyers made an application for derivative refugee status on the basis of her dependency on her husband’s status, which was granted in August 2016, and for which she was granted a ‘Refugee Determination Record’ stating that the Secretary had determined the appellant was ‘recognised as a refugee’ (at [7]–[8]). In December 2016, the process for acquiring derivative status was changed, including s 31(5), which was deemed to have commenced in May 2014, and provided that ‘[a]n application made by a person under section 31(1)(a), that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time’.

In June 2017, the Supreme Court held that the Tribunal had made an error of law in failing to adjourn its hearing to allow the appellant to Continue reading

Hossain v Minister for Immigration and Border Protection

The High Court has dismissed an appeal against a decision of the Full Federal Court on jurisdictional error and errors of law in the context of partner visa applications. Hossain, a Bangladeshi citizen, was refused a partner visa on the basis that the criteria in the Migration Regulations 1994 (Cth) had not been met. The Administrative Appeals Tribunal affirmed that decision on its merits, ruling that Hossain had not met the requirements of submitting an application within 28 days of ceasing to hold a previous visa, unless the Minister was ‘satisfied that there are compelling reasons for not applying’ this requirement, and that he did not have outstanding debts to the Commonwealth. Hossain then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision (by which time he had met the debt payment criteria) on the basis of jurisdictional error. In those proceedings, the Minister conceded that the Tribunal had erred in addressing whether there were compelling reasons not to apply the timing criterion as at the time of the application for the visa: it should have examined whether those compelling reasons existed at the time of its own decision. The FCCA rejected the Minister’s contention that this was nonetheless not a jurisdictional error because the public debt criterion had still not been met. The FCAFC majority (Flick and Farrell JJ) agreed with the FCCA that the error was jurisdictional, but ultimately agreed with the Minister that this error had not removed the Tribunal’s authority to affirm the delegate’s decision (at [13]). Mortimer J, in dissent, also held that the error was jurisdictional, but concluded that because Hossain had repaid the debt, the public interest criterion would no longer be an issue for the Tribunal, and the relief he sought could be granted (see [14]ff).

The High Court (Kiefel CJ, Gageler and Keane JJ, Nettle J, Edelman J) unanimously dismissed the appeal. The joint judges held that the Tribunal’s error in relation to timing did not rise to the level of jurisdictional error. Edelman J (with whom Nettle J agreed), also held that the error was not jurisdictional because it was neither a fundamental error nor one that could have affected the Tribunal’s decision: the ‘lack of materiality’ meant the error was not jurisdictional.

After reviewing the facts and decisions below, the joint judges turned first to conceptual debates about the term ‘jurisdiction’ (see [17]–[19]), noting that the High Court in Kirk v Industrial Court (NSW) [2010] HCA 1 had picked up Jaffe’s emphasis on jurisdiction goes to the gravity of an organisational procedural error when it ‘express[ed] the constitutionally entrenched minimum content of the Continue reading

DL v The Queen (NSW)

The High Court has allowed an appeal involving an appellate court differing with findings of fact made by a sentencing judge. DL was convicted in 2008 of a 2005 murder involving the repeated stabbing of a teenager for no apparent motive. At his sentencing in 2008, the trial judge found that ‘there was much irrationality about what occurred’, that it was not established that DL intended to kill the teen and that he was probably acting under the influence of psychosis. Holding that the offence was less serious than the median range murder and that NSW law provided that 25 years was the standard non-parole period for a mid-range murder, he sentenced DL to a 17 year sentence with a 12 year non-parole period. At his appeal against sentence in 2016, all parties agreed that a subsequent High Court judgment disapproving of this use of standard non-parole periods meant that the Court of Criminal Appeal needed to resentence him, that subsequent sentencing law changes meant that the standard non-parole period no longer applied to him and that the Court’s resentencing could take account of new facts since the sentence. A majority of the Court of Criminal Appeal, observing that all parties had been given an opportunity to be heard on all aspects of the resentencing and finding that DL was not affected by psychosis and did intend to kill, dismissed the appeal, holding that no lesser sentence was warranted.

The joint judgment (Bell, Keane, Nettle, Gordon and Edelman JJ) unanimously allowed the appeal. The joint judgment (at [33]ff) held that the majority’s holding that all parties had been given the opportunity to be heard on resentencing was the result of two ‘misconceptions’: Continue reading

The Queen v Falzon

The High Court has allowed a Crown appeal concerning the prosecution’s use of evidence of large amounts of cash found at the defendant’s premises to support charges of trafficking cannabis. The defendant was charged with possessing and cultivating cannabis for sale at two properties. His defence was that the cannabis was for his personal use or for gifts to others. The prosecution presented evidence of $120,000 in cash hidden at his home address. The jury convicted him of cultivating cannabis for sale at one of the properties and possessing it for sale at another. However, his appeal to Victoria’s Court of Appeal was allowed on the basis that the cash could not be properly used to convict him, because (a) ‘insofar as the evidence of the possession of the cash was admitted on the basis that it was evidence of past trafficking, it was irrelevant and therefore inadmissible’ (VSCA at [146]) and (b) if it is relevant, ‘such probative value must be low, in circumstances where the risk of the misuse of the evidence is undoubtedly high.’ (VSCA at [148]). On further appeal to the High Court, the Court unanimously allowed the Crown’s appeal at the conclusion of the hearing, with reasons to follow.

The joint judgment (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ) reviewed lower court rulings on the use of cash as evidence in drug trafficking prosecutions (at [34]-[39]), commencing with a 1989 ruling by the Northern Territory Court of Appeal. The joint judgment observed that that ruling by an Australian intermediate court was not followed by other Australian intermediate courts and instead it was the dissenting ruling in that case that ‘has ultimately prevailed in subsequent authority’ (at [34]). Turning to the relevance of the cash in the case before it, the the joint judgment held that the trial judge’s and dissenting judge’s rulings that the cash was admissible was ‘plainly correct’ (at [40]). Continue reading

News: Relief and reproach in the High Court

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

Federal Commissioner of Taxation v Thomas; Federal Commissioner of Taxation v Martin Andrew Pty Ltd; Federal Commissioner of Taxation v Thomas Nominees Pty Ltd; Federal Commissioner of Taxation v Thomas

The High Court has allowed one appeal, partly allowed a second appeal, and dismissed two appeals from a decision of the Full Federal Court on the taxation of franked distributions from trusts. In 2006 to 2008, the trustee (Thomas Nominees Pty Ltd) of a trust (the Thomas Investment Trust), received franked distributions within the meaning of div 207. Division 207 of pt 3-6 of the Income Tax Assessment Act 1997 (Cth) lays out the tax implications of trust income that includes franked distributions. In those years, the trustee passed resolutions that sought to distribute the franking credits between the trust’s beneficiaries separately from, and in different proportions to, the income that comprised the franked distributions (see details at [20]ff). The trustee referred to this as the ‘Bifurcation Assumption’, and lodged tax returns on the basis that this was legally effective under div 207. In 2010, the Queensland Supreme Court issued ‘directions’ to the Trustee that those resolutions did give effect to the Bifurcation Assumption, and that this was legally effective under div 207.

Two of the beneficiaries (the taxpayers) filed appeals in the Federal Court under pt IVC of the Taxation Administration Act 1953 (Cth), arguing that the Bifurcation Assumption was not legally effective under div 207 (see at [34]ff). The central issue before the High Court was whether the FCAFC was bound by the directions given by the QSC and its holding that the Bifurcation Assumption was in line with div 207, and, if the FCAFC was not so bound, how div 207 should apply to the trustee’s resolutions.

The High Court (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ, and Gageler J) unanimously held that the FCAFC erred in holding that it was bound to follow the QSC ruling. The FCAFC ‘misunderstood and misapplied’ the central case on directions, Continue reading

News: The Court of Disputed Returns Returns

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

Rozenblit v Vainer & Anor

The High Court has allowed an appeal from the Victorian Court of Appeal with regard to an order for costs arising from litigation between former business partners about a transfer of shares in a tyre recycling company, VR Tek Global Pty Ltd. The case concerned a stay of proceedings where the appellant was impecunious and his action would effectively be terminated by a stay.

Mr Rozenblit brought proceedings in the Supreme Court of Victoria in which he alleged that the first respondent, Michael Vainer, had fraudulently, and without his knowledge or consent, transferred shares owned by him to the second respondent, Alexander Vainer (the first respondent’s father) and that the now-liquidated company’s assets were subject to a trust in his favour. After pleadings had closed, Mr Rozenblit sought leave to amend his statement of claim in three separate summonses. While leave to amend pursuant to the third summons was granted, the judge stayed Mr Rozenblit’s claim pursuant to r 63.03(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) until the interlocutory costs orders with regard to the first and second (unsuccessful) summonses were paid. Rule 63.03(3) provided:

“Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so—

(a) if that party is the plaintiff, the proceeding shall be stayed or dismissed;

(b) if that party is a defendant, the defendant’s defence shall be struck out.”

Continue reading

Amaca Pty Ltd v Latz; Latz v Amaca Pty Ltd

The High Court has allowed an appeal in part from the Full Court of the Supreme Court of South Australia on the part of the appellant, Amaca Pty Ltd, and dismissed the cross-appeal of the respondent, Mr Latz. The case concerned an entitlement to damages reflecting the loss of an entitlement to a superannuation pension and an age pension as a result of a reduced life span.

Orders were pronounced on 11 May 2018, although reasons were published a month later on 13 June 2018, because of the parlous state of Mr Latz’s health. Mr Latz had contracted malignant mesothelioma at some time in 1976 or 1977 as a result of inhaling asbestos fibre while cutting and installing fencing which had been negligently manufactured by Amaca Pty Ltd. The mesothelioma did not become symptomatic until 2016. In October 2016, Mr Latz’s condition was diagnosed as terminal. He had retired from his job in the public service nine years earlier, and was receiving a superannuation pension under the Superannuation Act 1988 (SA) Part 5, and an age pension under the Social Security Act 1991 (Cth) Part 2.2. It was found that the mesothelioma had cut his life expectancy by 16 years. Mr Latz sought compensation for the reduction to his superannuation pension and age pension, which he would have continued to receive for a further 16 years but for the negligence of Amaca Pty Ltd.

Continue reading

Trkulja v Google Inc

Mitch Clarke, ‘Courting Communication Anachronisms: Trkulja v Google [2017] HCATrans’ (30 November 2017).

The High Court has allowed an appeal against a decision of the Victorian Court on Appeal on whether a search engine can be held liable for defamation from the results of a search. The appellant sued the respondent search engine company after results of searches such as ‘Melbourne criminal underworld photos’ showed images of him with various convicted Melbourne criminals, as well as articles and links which imputing he was associated with those criminals. Moreover, typing his name into the search bar led to autocomplete results that associated him with various criminal figures. The defendant sought to summarily dismiss the pleadings on the basis that (i) that it did not publish the images matter or the web matter; (ii) that the matters in issue were not defamatory of Mr Trkulja; and (iii) that Google was entitled to immunity from suit. The trial judge held that the appellant’s defamation proceeding should not be set aside. However, on appeal to the VSCA, it was held that the primary judge should have struck the case out on the second basis that the search results could not be defamatory because the results were produced by algorithm, and because a reasonable internet user would understand that the plaintiffs’ images appeared alongside other, clearly non-criminal, people.

The High Court set aside the VSCA’s findings. In a unanimous judgment, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ dealt with two issues: the question of whether Google was a publisher (and the relevance of defences in that determination), and the question of the test for whether the search results were capable of conveying the defamatory imputations.

Continue reading

DL v The Queen

The High Court has dismissed an appeal against a decision of the Full Court of the Supreme Court of South Australia concerning the adequacy of a judge’s reasons for convicting the accused of the offence of persistent sexual exploitation of a child. The complainant alleged that the accused, his uncle, abused him between the ages of 5 and 15, including showing him pornographic videos at the age of around 7, masturbation while the complainant used a computer in a bedroom, an oral sex at various locations (a shed and a property where he grew cannabis, a house owned by a woman the accused was having an affair with, and before the complainant rode the accused’s motorbike.) The uncle denied all the claims of sexual abuse and disputed some other details of the accused’s claims, including the location of the computer and when the complainant visited the shed and other locations. The accused was charged with the following offence:

An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.

Maximum penalty: Imprisonment for life.

The trial was before a judge without a jury. The judge said the complainant presented as ‘a man endeavouring to tell the truth’ and ‘described real events’, while he was ‘unimpressed with the [accused’s] presentation.’ He wrote:

I also accept [the complainant] as a reliable witness as to the core allegations. I have scrutinised his account very carefully. Some of his estimates of his age when events occurred were not reliable (for example, when he rode the motorbike or being ‘stoned’), but they were not sufficient to cause me to doubt either his truthfulness or reliability. Any exaggeration was not deliberate. As reflected in cross-examination, he had trouble remembering the process whereby statements were taken from him, who he told beforehand, who he was with and when he made particular allegations. My comments above should not be overlooked and it should not be forgotten that the conduct alleged took place many times over many years.

After further discussion, he concluded:

I have considered whether the attributes of [the complainant] as a person and the various criticisms of his evidence caused me to have a reasonable doubt and they do not. I reject the evidence of the [appellant] on substantive issues where he denied the alleged sexual conduct. I find that the [appellant] sexually assaulted [the complainant] on numerous occasions over a period of some years. The sexual assaults mainly took the form of indecent assaults and mutual oral sexual intercourse.

As Nettle J put it (at [115]), ‘That was it.’ The accused lost his appeal to the Court of Criminal Appeal, but made a new argument in the High Court of Australia that the trial judge’s reasons were inadequate in light of the requirement that the court find at least two acts of sexual abuse by the accused proved beyond reasonable doubt.

A 3-2 majority of the High Court (Kiefel CJ, Keane and Edelman JJ, with Bell J and Nettle J dissenting) held that the trial judge’s reasons were adequate. Continue reading

Lane v The Queen

The High Court has allowed an appeal against a conviction for manslaughter in a case concerning the proviso that permits an appeal court to dismiss a criminal appeal despite an error of law if there was no substantial miscarriage of justice. The defendant was charged with murder after an altercation outside a hotel in Casino, NSW left a man with head injuries, from which he died nine days later.  CCTV showed that the man fell twice: the ‘first fall’ after he approached the defendant and then retreated with the defendant in pursuit, falling backwards and striking his head; the ‘second fall’ after he rose and faced the defendant and then fell backwards again, leaving him unconscious. Although the Crown initially argued that the accused was responsible for the second fall, it changed its case – after its expert said that either fall could have caused the man’s death – to arguing that the accused was responsible for both falls. The accused did not seek to argue that the first fall both caused the man’s death and was not the accused’s responsibility. The jury acquitted the accused of murder but convicted him of manslaughter. He was sentenced to a minimum of six years four months imprisonment. On appeal, the NSW Court of Criminal Appeal unanimously held that the trial judge erred by failing to tell the jury that they needed to be unanimous not just on their verdict but on which act of the accused was the basis of his criminal liability. However, a majority nevertheless dismissed the appeal because the the evidence was insufficient to establish that the accused caused the first fall.

A unanimous High Court (Kiefel CJ, Bell, Keane & Edelman JJ, and Gageler J concurring) held that the appeal ought to have been allowed. Continue reading

Minogue v Victoria

The High Court has answered the questions in a special case on parole orders for prisoners who murdered a police officer, and its applicability to the plaintiff. The plaintiff was convicted of the murder of a police officer in a bombing in Russell St, Melbourne, and sentenced to a non-parole period of 28 years. After that non-parole period expired in September 2016, the plaintiff applied for parole, and that application proceeded through the parole review through October 2016. On 14 December 2016, s 74AAA was inserted into the Corrections Act 1986 (Vic), and provided new conditions for making parole orders for prisoners who murdered a police officer. It provides:

(1) The Board must not make a parole order under section 74 or 78 in respect of a prisoner convicted and sentenced (whether before, on or after this section comes into operation) to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless an application for the parole order is made to the Board by or on behalf of the prisoner.

Sub-section 3 provides that the Board ‘must have regard to the record of the court in relation to the offending, including the judgment and the reasons for sentence.’ Sub-section 6 defines ‘police officer’ to include an officer who was performing the duties or exercising the powers of a police officer at the time of the murder, or a murder that ‘arose from’ or ‘was connected’ with the officer’s role as a police officer, regardless of whether the officer was performing the duties or exercising the powers of a police officer at the time of the murder.

The plaintiff had commenced proceedings before the High Court in January 2017, seeking declarations that s 74AAA did not apply to him or his parole application (see [12]). In December 2017, s 127A was inserted into the Corrections Act, which purports to make s 74AAA applicable to Continue reading

News: The individual judges

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

CRI028 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the ‘internal relocation principle’ in refugee status determinations. The appellant, a Sunni Muslim from the ‘K District’ in the province of Punjab, moved to Karachi in 2004, departed Pakistan in 2013, and applied for asylum in Nauru in 2014. The appellant claimed he held a well-founded fear of persecution by the Muttahida Quami Movement (MQM) for the imputed political opinion of opposing MQM, and feared harm from them throughout Pakistan. The Secretary of the Department of Justice and Border Control refused the application. On appeal, the Nauruan Refugee Status Review Tribunal found that the appellant had a well-founded fear of persecution in Karachi, it affirmed the Secretary’s decision because the appellant could return to K District where he would not face a reasonable possibility of persecution. The NRSC upheld the Tribunal’s determination.

The High Court unanimously allowed the appeal. The joint judges (Gordon and Edelman JJ) held that the Tribunal fell into error in applying the principles on internal relocation, and hence the NRSC should have allowed the appeal. After laying out the provisions of the Refugees Act (at [18]ff), the joint judges turned to the internal relocation principle, reiterating that where a person claiming refugee status on the basis of a well-founded fear of persecution, and there is an area within their home country in which they would not have that fear, and the person could reasonably be expected to relocate there, then that person is not outside their home country due to a well-founded fear of persecution (see [24]). Continue reading

News: High Court plans to sit in Darwin in September

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

News: Eight special leave grants, but two are a secret

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

EMP144 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status and complementary protection. The appellant is a Nepali whose family were all members of the pro-royalist political group known as the RPP(N), which he joined in 2008 and in which he was active as an official. The appellant’s family had suspected that their brother had been disappeared by the Nepali Maoists (the NCP-M), and the appellant claimed that, from 2011 onwards, the NCP-M began to persecute him and both threatened and physically attacked him and his family in several separate incidents (at [6]ff). The Nauruan Refugee Status Review Tribunal found that the appellant had suffered serious harm amounting to persecution, but ruled that because the harm was ‘localised’, the appellant could reasonably be expected to relocate elsewhere in Nepal and live a normal life without hardship, and was thus neither a refugee nor entitled to complementary protection (at [12]). The NRSC upheld that ruling, holding that the Tribunal had not erred in applying a reasonable internal reloaction test, and had not failed to take into account all matters relevant to the appellant’ complementary protection claim, including the reasonably practicality of relocating within Nepal, and that the Tribunal had not failed to afford him procedural fairness (at [13]).

The Court (Kiefel CJ, Gageler and Nettle JJ) dismissed the appeal. Their Honours began by noting that the relevant statutory and treaty provisions are set out in CRI026 (at [16]). The Continue reading

DWN027 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status and complementary protection. The appellant was a Sunni Pashtun from who sought refugee status or complementary protection on the basis of a well-founded fear of persecution by the Taliban in Peshawar for his actual or imputed political beliefs, based on series of attacks against him and his family members by the Taliban, the most recent of which related to extortion and coercion attempts, which the appellant refused to submit to (see [4]ff). The Nauruan Refugee Status Review Tribunal found that the appellant faced a real threat of harm, but that he could also relocate to another area in Pakistan to avoid that harm, and consequently he was neither a refugee nor owed complementary protection by Nauru (at [7]). The NRSC upheld the Tribunal’s decision, holding that it had not erred in applying a reasonable internal relocation test, and did not fail to take into account the interests of the appellant’s children in finding that relocation was reasonable (at [8]).

The High Court (Kiefel CJ, Gageler and Nettle JJ) dismissed the appeal. Their Honours noted that the relevant statutory and treaty provisions were outlined in CRI026 (at [11]), and rejected DWN027’s arguments on ground one, on the relevance of the ability to relocate to the entitlement to complementary protection, as being ‘substantially the same’ as those given in CRI026, and rejected for the reasons given in that matter (at [12]).

Turning to Ground 2, that the Tribunal failed to take into account Nauru’s international obligation to give primary consideration to the best interests of the Continue reading

CRI026 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status, complementary protection obligations, and internal relocation. The appellant is a Pakistani national who had spent much of his life in Karachi, but also lived in a range of other districts in Pakistan. He arrived in Nauru and claimed refugee status on the basis of fears that he would be harmed by members of the Muttahida Quami Movement (MQM), whose leader he had injured at a cricket game in Karachi. He claimed that MQM viewed him as a political dissident, and could harm him anywhere in Pakistan, and that the government could not protect him due to its connections with and support for MQM. The Nauruan Refugee Status Review Tribunal accepted that there was a real possibility that he may be harmed if returned to Karachi, but only for reasons of personal revenge and not for his political beliefs, and that the appellant could avoid that harm by relocating to one of the areas in which he had family connections and where MQM had little support (see [6]ff, [16]). The Nauruan Supreme Court dismissed an appeal against that decision, holding that the Tribunal had not erred in applying a reasonable internal relocation test to the appellant’s claim (at [9]).

The High Court (Kiefel CJ, Gageler and Nettle JJ) unanimously dismissed the appeal. Their Honours briefly noted the Nauruan statutory provisions: that s 4 of the Refugees Act provides that Nauru must not return a refugee to the frontiers of territories where that person would be persecuted, or return any person to a frontier in breach of its international obligation; that Nauruan law incorporates the definition of refugee from the Refugees Convention; and that ‘complementary protection’ applies to people who are Continue reading

News: The cost of the High Court

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

Re Gallagher

The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the Senate on s 44(i) eligibility. Section 44(i) of the Australian Constitution provides that any person who is ‘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’. Senator Katy Gallagher (who first became a senator by filling a vacancy in 2015), lodged her nomination for the 2016 election on 31 May and was duly elected on 2 July 2016. At the date of nomination, she was a British citizen and thus was a citizen of a foreign power within the meaning of s 44(i). In August 2016, the UK Home Office acknowledged her renunciation of that citizenship. In December 2017, the Senate referred questions over Senator Gallagher’s eligibility to the Court of Disputed Returns.

The Court (Kiefel CJ, Bell, Keane, Nettle, and Gordon JJ, Gageler J, Edelman J) held that Gallagher was not eligible to be chosen by reason of s 44(i), and consequently there was a vacancy in the representation of the ACT which should be filled by a special count of the ballots.

The joint judges (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) first reiterated the principles laid down by the Court in Sykes v Cleary [1992] HCA 60 and Re Canavan [2017] HCA 45 (see [7]ff). Section 44(i) disqualifies foreign citizens from being chosen as a Senator or MP, and has this effect regardless of that person’s knowledge of that status or intention to act on the duty of allegiance to a foreign power. Foreign citizenship, and the ability to renounce that citizenship, is determined by reference to the laws of relevant country. In Re Canavan, the Court recognised an implicit qualification to s 44(i) arising from the ‘constitutional imperative’ underlying that section: that no Australian citizen could be ‘irremediably’ prevented by foreign law from participating in Australia’s representative government, and that, at least, this could be so where that person has taken all reasonable steps under the foreign law to renounce that citizenship (see [11]). Gallagher’s submission here was that British law should be read as operating in exactly this way (at [12]).

Turning to the details of British renunciation law, the joint judges noted that the British Nationality Act 1981 (UK) allows a person to renounce British citizenship, and on registration of that declaration by the Secretary of State, that person ceases to be a British citizen (at [14]). The renunciation must be made in a particular form, Form RN, documents proving British citizenship must be provided, and a fee must be paid (at [15]). Gallagher completed the form on 20 April 2016, provided her birth certificate and Australian passport, and credit card details, which was debited on 6 May 2016 (at [16ff]). But in July 2016 the Home Office requested documents showing that she was indeed a British citizen (here, her parents’ birth and marriage certificate), which she did: sometime before 30 August 2016, the Home Office advised Gallagher that the declaration had been registered (at [18]).

Before the Court of Disputed Returns, Gallagher contended that by 20 April 2016, or at the latest by 6 May 2016 (the date of debiting), she had taken all steps required under British law that were ‘within her power’ to renounce her citizenship: it was then for the Secretary of State to choose the time and manner to perform the duty under that law, and that discretion was an ‘irremediable impediment’ to Gallagher’s participation in the 2106 election (see [19]). The Commonwealth Attorney-General contended that it is not enough for a person to merely take steps to renounce, unless the foreign law provides an irremediable impediment to renunciation: British law does not do so as it does not make it impossible or not reasonably possible to renounce (at [21]).

The joint judges accepted the Commonwealth’s argument as clearly reflecting the law stated in Sykes v Cleary and Re Canavan (at [22]). The constitutional imperative is narrowly focused on foreign laws that prevent a person from ever ‘freeing’ himself or herself of the citizenship of that foreign country, thus preventing them from lifting the disqualification in s 44(i) (at [23]ff). Foreign laws that require particular steps be taken will not ‘irremediably prevent’ renunciation: it must rather be an insurmountable obstacle, or a process that was unreasonable for, for example, putting the renouncer at personal risk (at [27]ff). The joint judges also explicitly rejected Gallagher’s submission that it is not sufficient that a person only take all steps reasonably required for the exception to s 44(i) to apply: the foreign law must also itself ‘irremediably prevent’ renunciation (at [30]ff). The joint judges added that the requirement of taking all those steps, even where the law prevents renunciation, is required by s 44(i)’s concerns about the duty or allegiance to a foreign power: taking those steps is a manifestation that the person has done all they can (at [32]). Gallagher could not identify any aspect of British law that would constitute an irremediable impediment, and that a decision might not be made in time for a particular person’s nomination for an election does not constitute an irremediable impediment (see [37]ff).

Gageler J agreed with the responses given by the joint judges, and with their reasons, adding further reasons explaining his Honour’s view of the constitutional imperative. Gageler J emphasised that the implied exception avoids rigidly operating in a way that undermines the system of responsible and representative government that it aims to protect; namely, that arbitrary or intransigent foreign laws cannot frustrate the ability of Australian citizens to participate in Australian government (at [43]). Specifically, it aims at allowing Australian citizens who irremediable retains foreign citizenship; who have attempted to renounce but are prevented from doing so (at [44]). It is not engaged merely because a person has taken all reasonable steps and is awaiting the completion of that process: ‘Retention of foreign citizenship can hardly be said to be irremediable while it remains in the process of being remedied’ (at [45]). Instead, the implied exception can only be engaged if and when the process of renunciation turns out, for practical purposes, to be one that will not permit renunciation, ‘requiring if not that an impasse has actually occurred then at least that an impasse can be confidently predicted’ (at [45]). Gallagher remained a citizen of a foreign power (at [46]), and the precise timing of the 2016 election has no bearing on the disqualification requirements in s 44 (see at [47]ff).

Edelman J also agreed with the responses given by the joint judges, agreeing with ‘generally those [reasons given] in the joint judgment’ (at [69]), and offered his own reasons on the constitutional imperative and non-recognition of foreign laws. Edelman J first noted that foreign laws will generally not be recognised where they are inconsistent with local policy or the maintenance of local political institutions (at [52]). This rule has been applied to foreign laws on citizenship, notably by Brennan J in Sykes v Cleary, who used recognition as an ‘anterior question’ to be considered prior to the application of s 44(i): ‘that whether a person was a subject or citizen of a foreign power was a question for the law of that foreign power, subject to exceptions recognised by international law as well as exceptions sourced in public policy derived from both common law and the Constitution‘ (at [53]), such as a ‘mischievous’ foreign statute conferring citizenship on all Australians to disqualify them from their own Parliament (at [54]). Edelman J noted that it was unnecessary in this matter to consider if any further exceptions should exist: while Gallagher’s arguments suggested that parts of the British law should not be ‘recognised’ she did not focus on the anterior question and instead ‘correctly assumed that none of the existing, limited exceptions applied to prevent recognition of the foreign law’: at [55]).

Turning, then, to the implied constitutional qualification, Edelman J saw s 44(i) against the backdrop of other limitations on participation in government in the Constitution, and as focusing on preventing foreign laws from ‘stultify[ing] a persons’ qualified ability to participate’ (at [58]). The ‘irremediable’ aspect includes situations where the foreign law would make participation permanently impossible (at [59]), though it also extends to laws that have the practical effect of imposing unreasonable obstacles to renunciation (at [60]). Edelman J rejected Galalgher’s submission that the British law here involved unreasonable obstacles, specifically, the action of a foreign official: while some circumstances might involve foreign officials making unreasonable requests, or unreasonably refusing to exercise discretion, that is not clear in this situation (see at [64]ff, and [68]):

Ultimately, perhaps the most fundamental difficulty for Senator Gallagher’s submission that actions of foreign officials should be automatically excluded by the implication is that the submission shears the constitutional implication from its rationale of ensuring that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. The submission treats as an ‘unreasonable obstacle’ falling within the implication any foreign law that does not irremediably prevent participation, but which might have an arbitrary or discriminatory effect. This would require a different implication, one which is lacking in any textual or structural constitutional foundation.

Gallagher’s vacancy will be filled by a special count of the ballots. The directions needed to give effect to that count will be made by a single Justice (Answer to Question (b)).

High Court Judgment [2018] HCA 17 9 May 2018
Result Vacancy in the Senate for the representation of the ACT for which Gallagher was returned, to be filled by special count
High Court Documents Re Gallagher
Full Court Hearing [2018] HCATrans 46 14 March 2018
Hearings, Kiefel CJ [2018] HCATrans 14 12 February 2018
[2018] HCATrans 1 19 January 2018

ORDER

The questions referred to the Court of Disputed Returns by the Senate be answered as follows:

Question (a)

Whether, by reason of s 44(i) of the Constitution, there is a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which Katy Gallagher was returned?

Answer

Yes.

Question (b)

If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled?

Answer

The vacancy should be filled by a special count of the ballot papers. Any direction necessary to give effect to the conduct of the special count should be made by a single Justice.

Question (c)

What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference?

Answer

Unnecessary to answer.

Question (d)

What, if any, orders should be made as to the costs of these proceedings?

Answer

Unnecessary to answer.

Collins v The Queen

The High Court has allowed an appeal by a man convicted of four counts of sexual offences, including rape, alleged to have been committed in January 2000. The complainant, then aged 19, answered a newspaper ad for a nanny to accompany the accused, then aged 61, his partner and child on a sailing trip, After an initial interview, the complainant returned for a further interview a week later. According to the complainant, at around 11pm on the yacht, she had a shower and was then shaved and raped by the accused. The prosecution case included comments she made the next morning to a friend and her mother the next morning, and the results of a police search warrant on the yacht two weeks later that found a razor with her DNA on it. At the trial, the accused formally admitted that he and the complainant had had sex on the yacht that evening.

At the trial in 2014, the complainant’s mother testified that, on the morning after the alleged rape, the complainant ‘phoned me to tell me that she had been raped’. In cross-examination, she was given a transcript of evidence that she she gave at the accused’s committal in 2007, where she had said that the complainant had told her that morning that ‘I think I have been raped’ and that ‘I had some wine and I felt funny and I don’t remember every – anything after a certain time’. Asked if she agreed that she gave that evidence, she said that she did. This part of the cross-examination concluded:

When you gave evidence back on the 21st of September 2007, was better than it is now? Yes. I would say so, yes.
And when you gave that evidence, that was the best recollection you could give to the court of what she said to you? Yes. I would say so, yes.

The trial judge directed the jury on this exchange as follows:

That inconsistency between what the mother told the committal court seven years ago and what she told today, depending upon your view of it, impacts, potentially upon the mother’s credibility and reliability. But what the mother said to the committal court seven years ago is not evidence of the fact that the complainant said those things to her. It’s not evidence of the truth of the contents of the statement if you can follow that logic. It impacts upon the particular witness’s credibility who’s giving the evidence.

On appeal, the Queensland Court of Appeal accepted that the trial judge’s direction was incorrect, but dismissed the appeal on the ground that the misdirection caused no substantial miscarriage of justice to the accused.

The High Court (Kiefel CJ & Bell, Keane & Gordon JJ, Edelman J concurring) first considered whether or not the trial judge misdirected the jury. Continue reading

News: Kiefel CJ’s portrait among the Archibald Prize finalists

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

News: Agreement in the High Court

Image

Last week, the High Court published two unanimous judgments and announced a third, bringing its total of unanimous decisions so far this year to 15, out of 17 to date. At this early stage, the Court is tracking ahead of its past rates of unanimous assent in orders.* On my count of the last five years (since Gummow and Heydon JJ left the bench and Gageler and Keane JJ joined), the Court’s judges unanimously asesnted to the court’s orders in 75% (2013), 76% (2014), 81% (2015), 76% (2016) and 67% (2017) of three-or-more judge cases.This average unanimity rate of 76% over the past five years is – according to data compiled and generously supplied to me by regular blog commenter Matan Goldblatt – well ahead of earlier multi-year periods where unanimous orders made up 67% (2007-2012),  54% (2003-2007) and 61% (1998-2003) of High Court decisions. The backdrop (and possible explanation) of the current institutional unanimity rate is each judge’s personal rate of assenting to the Court’s order. From 2013, my count of those rates is: French CJ: 95.5%; Hayne J: 91.9%; Crennan J: 94.8%; Kiefel J/CJ: 97.7%; Bell J: 96.7%; Gageler J: 87.0%; Keane J: 97.1%; Nettle J: 91.1%; Gordon J: 90.0%; and Edelman J: 88.9%.

These figures show that the current court is characterised, not just by its lack of ‘Great Dissenters’ – Gageler J’s outlier of 87% is barely comparable to the likes of Kirby J (around 60%, dropping to 52% in 2006) and Heydon J (55% in his final year) – but perhaps especially by its run of ‘Great Assenters’ Continue reading

News: Leave granted in three criminal cases

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

Burns v Corbett; Burns v Gaynor; A-G (NSW) v Burns; A-G (NSW) v Burns [No 2]; NSW v Burns

The High Court has dismissed five appeals stemming from to a decision of the NSW Court of Appeal on anti-discrimination complaints made across State borders. Burns, a resident of NSW and an anti-discrimination campaigner, made complaints to the Anti-Discrimination Board of the NSW Civil and Administrative Tribunal about statements made by Corbett and Gaynor, who were, respectively, residents of Victoria and Queensland. At issue there was whether ss 28(2)(a) and (c), 29(1) and 32 of the Civil and Administrative Tribunal Act (NSW) (the NCAT Act), which lay out the general and appellate jurisdiction of NCAT, gave NCAT jurisdiction to hear cases between residents of different states (known as ‘diversity matters’). Hearing the various appeals stemming from these matters together, the NSWCA held that the NCAT had no diversity jurisdiction, and that only State courts, and not Tribunals, could hear such complaints under the High Court’s diversity jurisdiction.

The High Court unanimously dismissed the appeals. Four judges (Kiefel CJ, Bell and Keane JJ and Gageler J) held that the Constitution contains an implied limitation that prevents State parliaments from conferring diversity jurisdiction on State tribunals.

The Joint Judges (Kiefel CJ, Bell and Keane JJ)

Kiefel CJ, Bell and Keane JJ began by laying out the appeal as raising two issues: whether the Commonwealth Constitution precludes State parliaments from conferring jurisdiction in diversity matters on a tribunal that is not one of the ‘courts of the States’ referred to in s 77 (the ‘implication’ issue); and, if it does not, whether a State law purporting to do so is inoperative by virtue of s 109 of the Constitution, as inconsistent with a federal law covering the same issue, here, s 39 of the Judiciary Act 1903 (Cth) (the ‘inconsistency’ issue). The joint judges held held that the implication issue should be resolved affirmatively, and thus it was unnecessary to resolve the inconsistency issue (at [5], and see [4] on the distinctness of the issues). For the joint judges, the text, Continue reading

WET044 v Republic of Nauru

The High Court has dismissed an appeal from a decision of the Supreme Court of Nauru on the denial of procedural fairness and the consideration of country information in a refugee status determination. The appellant, an Iranian of Faili Kurdish ethnicity, arrived on Christmas Island in 2013 and was transferred to Nauru, where he applied for refugee status under Nauru’s Refugees Convention Act 2012 (Nr). The Secretary of the Department of Justice and Border Control refused that application: that decision was affirmed by the Refugee Status Review Tribunal. Before the High Court, the appellant contended that the Tribunal erred in failing to deal with the country information he provided, specifically, that if returned to Iran as a failed asylum seeker, he risked being imputed with political opinions for which he would be persecuted. The appellant also sough to amend his notice of appeal to include a second ground of denial of procedural unfairness in not putting to him the nature of the country information it did rely upon in considering whether he might suffer persecution on the grounds of ethnicity (at [7]: neither ground was raised before the NRSC).

The High Court rejected both grounds as being without merit and dismissed the appeal. Regarding the first ground, the Court noted that the Tribunal had received and considered the appellant’s information (at [10]), that it did not seem to have ignored it, but that, in any case, much of that information did not require the Tribunal’s comment: Continue reading

News: High Court’s Nauru jurisdiction silently disappears

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

Drug Law is Bad, M’Kay?: Kalbasi v Western Australia

So, first of all, smokin’s bad. You shouldn’t smoke. And uh, alcohol is bad, you shouldn’t drink alcohol. And as for drugs, well, drugs are bad, you shouldn’t do drugs. M’kay, that about wraps up my introduction, now are there any questions? Yes, Stan?

The many problems of drugs — and of the ‘war on drugs’ — are well known. This post concerns a less discussed drug problem: the criminal law of drugs. No-one has adequately solved the legal puzzle of how to prohibit the market in bags of powder — in particular, how to reliably and fairly connect identifiable people to those bags of powder,

The criminal law of drugs is bad. Even the simplest drug situations routinely raise vast problems for police, lawyers and judges. The common scenario of someone flying into an airport with a suitcase lined with drugs prompted Australia’s most important — and its most difficult — High Court case on the criminal law. A person’s criminal responsibility (or lack of responsibility) for what is in her luggage continues to be fine-tuned three decades later, including in two High Court cases last year.

Last month, the High Court’s judges split four to three on another, recurrent drug law puzzle: proving who is responsible for drugs sent unaccompanied in the mail. The complex appeal in Kalbasi v Western Australia [2018] HCA 7 is an object lesson, not only in how very difficult it is for police to net the biggest players, but also how Australian courts can punish someone for being a Mr Big without ever affording him a fair trial before a jury.
Continue reading

News: Three special leave grants, two on papers, one oral

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

Clone Pty Ltd v Players Pty Ltd (in liq, recs and mgrs apptd)

The High Court unanimously allowed an appeal from a decision of the Full Court of the South Australian Supreme Court regarding the power of a court to set aside one of its own perfected judgments on the basis of misconduct falling short of fraud. It was held that for the equitable power to set aside a judgment required actual fraud by the party who succeeded at trial, and such fraud had not been adequately proven or pleaded in this case. However, it was not necessary for the party seeking to set aside the judgment to exercise reasonable diligence to discover the fraud. Continue reading

Alley v Gillespie

The High Court has answered questions in a stated case brought by a common informer challenge to the capacity of a member of the House of Representatives elected at the July 2016 federal election. Section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) provides that any person who has sat in Parliament ‘while he or she was a person declared by the Constitution to be incapable of so sitting’ is liable to pay ‘any person who sues for it in the High Court’ a sum of money. The defendant was declared elected as a member of the House of Representatives on 20 July 2016. On 7 July 2017, the plaintiff commenced proceedings under the Common Informers Act, contending that the defendant was incapable of sitting as an MP because he holds shares in a company that leased premises to Australia Post, contrary to s 44(v) of the Constitution. After a query about whether the High Court has jurisdiction to decide the anterior question of the defendant’s eligibility to sit as an MP, Bell J formulated the questions for the Full Court as follows:

(1) Can and should the High Court decide [in this proceeding] whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the [Common Informers Act]?

(2) If the answer to question (1) is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff in his attempt to demonstrate that the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers Act?

The Court unanimously answered Question 1 ‘no’, and consequently it was not necessary to answer Question 2.

The joint judges (Kiefel CJ, Bell, Keane and Edelman JJ) held that whether the defendant is incapable of sitting as an MP is a question to be determined by the House of Representatives, unless it resolves to refer the matter to the Court of Disputed Returns. This answer to Question 1 is determined by ss 46 and 47, and their relation to s 44, of the Constitution. Section 46 Continue reading

Re Kakoschke-Moore

The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the Senate over the eligibility of two South Australian senate nominees. Skye Kakoschke-Moore and Timothy Storer who were third and fourth in the Nick Xenophon Team order of senate candidates for the 2016 federal election. Following that election, on 4 August, Kakoschke-Moore was returned as a senator for South Australia. On 3 November 2017, NXT resolved to expel Storer from the party, and by 6 November he purported to resign from the party. On 22 November, Kakoschke-Moore resigned as a senator after receiving confirmation from the United Kingdom Home Office that she was a British citizen. The Senate then resolved on 27 November to refer to the High Court the question of whether, by reason of s 44(i) of the Constitution, which provides that any person who is a subject or citizen of a foreign power shall be incapable of being chosen as a senator, there was a vacancy in the Senate for the place for which Kakoschke-Moore was returned. On 30 November, Kakoschke-Moore submitted the form to renounce her UK citizenship, and received confirmation on 6 December from the Home Office that her renunciation was effective on that date.

On 24 January 2018, Nettle J declared that Kakoschke-Moore was incapable of being chosen or sitting by reason of s 44(i). Nettle J also reserved three further questions for the Full Court’s determination, which the Court answered on 13 February (see order below), delivering its reasons on 21 March.

The Court unanimously held that the vacancy left by Kakoshcke-Moore should be filled by a special count of the votes cast on 2 July 2016; that Kakoschke-Moore’s renunciation of her British citizenship in December 2017 does not render her capable of now being chosen to fill the vacancy; and that Storer should not be excluded from the special count.

On questions one and two, the Court rejected Kakoschke-Moore’s contentions that the Court should declare her elected because she has now renounced her Continue reading

Craig v The Queen

The High Court has unanimously dismissed appeal against a decision of the Queensland Court of Appeal on a defendant’s decision not to testify in the context of a domestic violence murder conviction. Although he told his solicitors that the killing was an accident that occurred after the victim attacked him, his defence at trial instead relied on his police interview that described the killing as a deliberate attack that occurred in the heat of the moment. The defendant’s reasons for not testifying were evidenced in the following signed instructions he gave to his solicitor before the trial:

I am not relying on self defence or provocation as defence for tactical or legal reasons. Firstly, I did not raise these defences in my interview to police and secondly it would require me to give further evidence if such defences were to be raised. I have already given my preliminary view that I do not wish to give evidence as I do not want to be cross-examined about my previous criminal history.

On appeal, the defendant’s trial counsel explained that the advice was based on a number of contingencies that might arise during the defendant’s testimony – imputations against the police or the victim, assertions of his good character or the substance of his defence that the killing was an accident – which might allow the introduction of his earlier conviction for a home invasion where a person was fatally stabbed, but admitted that he had not told the defendant that the trial judge would have to give leave for that to occur. The QCA held that the trial counsel’s advice was incorrect, but dismissed the defendant’s appeal because the decision not to testify was a sound, forensic decision where the wrong advice was merely ‘an additional, but inaccurately expressed, reason’.

A unanimous High Court consisting of all seven judges rejected the defendant’s argument that he could not be held to a forensic decision that was informed by incorrect legal advice. Continue reading

Re Lambie

The High Court, sitting as the Court of Dispute Returns, has answered a question referred to it by the Senate on eligibility of being chosen under s 44 of the Constitution. The reference originally concerned then-Senator Jacqui Lambie’s eligibility under s 44(i), but following her resignation it focused on the eligibility of Steven Martin, another Senate candidate who, following a special count, was chosen to fill Lambie’s vacancy. The matter then focused on s 44(iv), which provides that ‘[a]ny person who … holds any office of profit under the Crown … shall be incapable of being chosen or of sitting as a senator’. Martin holds the office of mayor and councillor of Devonport City Council, a local government corporation established under the Local Government Act 1993 (Tas).

On 6 February 2018, the Court held that Martin was not incapable of being chosen or of sitting as a senator by reason of s 44(iv), and delivered its reasons for that answer on 14 March. The joint judges (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) first emphasised the importance of s 45(i), which provides that if a senator becomes subject to any of the disabilities in s 44, that senator’s place ‘shall thereupon become vacant’ (at [6]). The temporal relationship between ss 44 and 45 is the process of ‘being chosen’ in s 44 remains incomplete until a person not subject to a s 44 disability is validly returned as elected, whereas s 45 operates to vacate the place of a person validly returned who later becomes subject to a s 44 disability (see [7]). In this matter, there was no dispute that ‘the Crown’ refers to the executive government of a State, and no dispute that the offices of mayor and councillor in Tasmania are each an ‘office of profit’ (at [9]). The sole issue was whether those offices are ‘under’ the executive government of Tasmania (at [10]–[12]).

The joint judges then turned to the pre-Federation history of s 44(iv), noting that nothing in that history suggests it had a technical meaning at Federation, and that nothing in the drafting history suggests there was any significance for that choice of words (at [17]). Consequently, the joint judges saw pre-Federation history as ‘more enlightening as to the purpose of the disqualification’, Continue reading

Pike v Tighe

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on whether a local council can enforce planning conditions that were agreed by a previous land owner when the land was subdivided. Section 245 of the Sustainable Planning Act 2009 (Qld) provides that

(1) A development approval (a) attaches to the land the subject of the application to which the approval relates; and (b) binds the owner, the owner’s successors in title and any occupier of the land.

(2) To remove any doubt, it is declared that subsection (1) applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured

In 2009, the Townsville City Council approved a subdivision on the condition that the then-owner register an easement to allow pedestrian, vehicle and utilities access to the back-lot, which the owner never did. That decision was made under the Integrated Planning Act 1997 (Qld), s 3.5.28 of which is substantially reproduced in s 245. When the subdivision was registered and both lots later sold, the Queensland Planning and Environment Court granted the new back-lot owner an ‘enforcement order’ to prevent the new front-lot owner from committing a ‘development offence’ by not registering the utilities easement. The QCA unanimously quashed the order on the basis that the Council’s subdivision conditions did not attach to the land following the subdivision.

The High Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) unanimously allowed the appeal, holding that s 245 obliges a successor to title after a reconfiguartion to comply with the condition of the approval of that recondition even if it was not satisfied by the original owner, and that QPEC may make an enforcement order requiring the successor to fulfil that condition.

After reviewing the facts (at [3]ff), the statutory provisions (at [8]ff), and the decisions of the lower courts (at [15]ff), and the submissions of the parties (at [28]ff), the Court ruled that the appellants’ second submission — that even if the respondents were not a party to the development approval, that does not preclude an enforcement order from being made against them — Continue reading

Kalbasi v Western Australia

The High Court dismissed, by majority, an appeal against a decision of the Western Australian Court of Appeal on a conviction and sentencing for drug importation. The appellant was convicted for attempted possession of 5kg of methylamphetamine with intent to sell or supply them to another, after police intercepted the drug shipment in two tool cases, substituted salt for the drugs, and then surveilled a Perth man take the cases home and unpack them in front of the appellant. The trial judge directed:

I’m now going to deal with the fourth element upon the jury aid, that the accused intended to sell or supply the prohibited drug or any part of it to another. Members of the jury, you can give that element a tick. It is not an issue for you in this trial.

The WASCA dismissed the appeal, holding that, although this direction was incorrect (as a statutory presumption of intent to sell or supply did not apply to the offence of attempted possession), the so-called ‘proviso’ to Western Australia’s criminal appeal statute (that the Court ‘may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred’) applied.

The High Court formed a bench of seven judges to address the meaning of its 2005 precedent on the ‘proviso’, Weiss v The Queen, which held:

No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

The appellant argued that the WASCA’s approach that regards the ‘negative proposition’ as determining the application of the proviso unless there was a ‘fundamental’ error of ‘process’ either ‘misapplies the principles explained in Weiss or, if it does not, Weiss should be qualified or overruled.’ The Court unanimously declined to overrule Weiss, but divided on whether the ruling was correctly applied in this case. Continue reading

Irwin v The Queen

The High Court unanimously dismissed an appeal against a decision of the Queensland Court of Appeal on the defence of accident to a grievous bodily harm conviction. The appellant and his former business partner fell out over business dealings and an adultery claim, leading to a fight in a Gold Coast shopping mall. The jury convicted the appellant of grievous bodily harm for breaking the victim’s hip after shoving him over, but acquitted him of another charge that he kicked the victim while he was on the ground. The defence of accident in s23 of Queensland’s Crimninal Code states (emphasis added):

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

(b) an event that— (i) the person does not intend or foresee as a possible consequence; and (ii) an ordinary person would not reasonably foresee as a possible consequence.
Example: Parliament, in amending subsection (1) (b) by the Criminal Code and Other Legislation Amendment Act 2011 , did not intend to change the circumstances in which a person is criminally responsible.
(1A) However, under subsection (1) (b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.

The QCA rejected the appellant’s claim that the hip fracture fell within s23(1)(b) in the following terms (emphasis added):

A jury may well have considered that an ordinary person in the position of the appellant could not have reasonably foreseen the complainant would in those circumstances suffer a fractured hip. That, it seems, was the trial judge’s view. But that is not the test for this Court. It was equally open to the jury on the evidence to reach the contrary conclusion, that an ordinary person in the position of the appellant could have foreseen that the complainant might suffer a serious injury such as a fractured hip from such a forceful push. The resolution of the issue was a matter for the jury. They had the advantage of seeing the height and build of the 55 year old complainant and appellant. Assuming they were of average build and height, the appellant’s push of the complainant, necessarily on the medical evidence forceful, on a slight downward sloped tiled ramp, could foreseeably result in the complainant falling badly and seriously injuring himself, even breaking his hip. Such a result was not theoretical or remote.

After reviewing the whole of the evidence, I am satisfied that the jury verdict of guilty of grievous bodily harm was not unreasonable and against the weight of the evidence. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. It follows that I would dismiss the appeal against conviction.

The High Court (Kiefel CJ, Bell, Gageler, Nettle & Gordon JJ) held (at [44]) that s23(1)(b)’s reference to ‘would’ ‘involves a degree of probability, albeit that it need not be more likely than not, whereas’ the QCA’s referrence to ‘could’ ‘is a matter more akin to mere possibility’ and hence was ‘prone to lead to error in the application of s 23(1)(b)(ii)’ and ‘the practice should not be repeated’.However, the Court noted (at [45]) that the trial judge directed the jury in the correct terms and ‘there is no reason to doubt that the jury adhered to those directions, or cause to doubt the reasonableness of the verdict on that basis.’

The Court then turned to the particular reasoning of the QCA, Continue reading

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

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

Probuild and Maxcon Case Page

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

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

Back to the past for dodgy construction payment adjudications: Probuild and Maxcon

By Owen Hayford
Senior Fellow in the Melbourne Law Masters and Partner, PwC Legal

Probuild and Maxcon Case Page

Construction lawyers were very excited last week, when Australia’s highest court handed down two decisions on the rights of principals to construction contracts to seek judicial review of adjudications made under security of payment legislation — Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, and Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5.

Security of payment legislation has been enacted in every Australian state and territory to ensure that that construction contractors and sub-contractors are promptly paid for the work that they have performed. Although different in each state and territory, the legislation establishes a fast-track process for the interim resolution of progress payment disputes under construction contracts by an adjudicator. The two cases arose when decisions by adjudicators in relation to progress payments were sought to be challenged by principals for alleged errors of law.

The High Court answered the question of when an error by an adjudicator will entitle the principal to apply to the court to have the adjudication declared void and set aside. Numerous judges have provided different answers to this question since it was first considered in detail in the 2003 decision of Musico v Davenport [2003] NSWSC 977. The sad news, for those who have funded the intervening litigation, is that the High Court has basically taken us back to the position that was espoused in Musico almost 15 years ago.

Sadder still, the High Court hasn’t exhaustively determined when a court will be allowed to set aside a determination because the requirements of the security of payment legislation have not been satisfied. As such, further litigation on the grey areas can be expected. Continue reading

News: Secret men’s evidence in the High Court

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

News: Court may lose Nauru appellate role

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

Maxcon Constructions Pty Ltd v Vadasz; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd

Owen Hayford, ‘Back to the past for dodgy construction payment adjudications: Probuild and Maxcon‘ (23 February 2018)

Owen Hayford and Hannah Stewart-Weeks, ‘Construction contractors beware – common clauses may now be unenforceable after Maxcon Constructions v Vadasz (1 March 2018)

The High Court has dismissed two appeals against decisions of the South Australian Supreme Court (Maxcon) and the New South Wales Court of Appeal (Probuild) on when a court can review an adjudication decision about security of payments legislation. In both of these matters, the primary courts held that an adjudicator had made an error of law in adjudicating disputes over progress payments for construction projects. The NSWCA held that the security of payment legislation removed any judicial power to quash an arbitral decision for that error of law, and the SASCFC held that it was bound to follow the NSWCA ruling. These rulings were upheld by the High Court.

Continue reading

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

The High Court has remitted a proceeding concerning a civil breach of federal industrial relations law to the Full Court of the Federal Court of Australia to consider whether to order an individual defendant to pay the penalty personally. The defendants, a building industry union and an employee of that union, admitted to breaching s346 of the Fair Work Act 2009, which prohibits coercing someone into taking industrial activity, by organising a blockade of cement supplies to a government building site in order to put pressure on the builders to hire a representative of the union. In proceedings brought by the predecessor to the Australian Building and Construction Commission, the Federal Court imposed a civil penalty of $60,000 for the union and $18,000 for the employee. The amount of penalty was not disputed before the High Court.

The issue that went to the High Court was the ‘non-indemnification’ order that accompanied the civil penalty on the employee. Continue reading

News: Major commercial implications in latest leave grants

After rejecting twentyseven 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

News: State of play in the Court of Disputed Returns

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

Falzon v Minister for Immigration and Border Protection

The High Court has dismissed an application challenging the validity of s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) provides that the Minister of Immigration and Border Protection must cancel a visa held by a person if the Minister is satisfied that person does not pass the character test due to a substantial criminal record, which includes being sentenced to a term of imprisonment of at least 12 months. The plaintiff is a Maltese national who has lived in Australia since the age of three, but never became an Australian citizen, and instead held an Absorbed Person Visa and a Class BF Transitional (Permanent) Visa as a ‘lawful non-citizen’. In 2008, he was convicted of drug trafficking and sentenced to 11 years in prison. In March 2016 the Minister cancelled his Absorbed Person Visa, which meant that the Minister was taken to have cancelled the other visa. The plaintiff was taken into immigration detention, and sought revocation of the decision to cancel his visa. The Assistant Minister refused, and the plaintiff commenced proceedings in the High Court’s original jurisdiction. The plaintiff contended that s 501(3A) is invalid for conferring federal judicial power on the Minister, contrary to Ch III of the Constitution, because it empowers the Minister to punish him for offences he has committed.

The High Court unanimously dismissed the application. The joint judges (Kiefel CJ, Bell, Keane and Edelman JJ) held that s 501(3A) does not authorise or require detention, but merely requires that his visa be cancelled because of his criminal convictions: it changed his legal status from lawful non-citizen to unlawful non-citizen, and this change meant he was liable to removal from Australia, and detention to facilitate that removal.

After summarising the facts (at [1]ff) and the statutory scheme (at [9]ff), the joint judges turned to each of the plaintiff’s four propositions. The first, that the power to punish an offence against a Commonwealth law is exclusive to ch III courts was uncontroversial (at [14]–[17]). Continue reading

Commissioner of the Australian Federal Police v Hart; Commonwealth of Australia v Yak 3 Investments Pty Ltd; Commonwealth of Australia v Flying Fighters Pty Ltd

The High Court has allowed an appeal against a decision of the Court of Appeal of Queensland on the meaning and application of federal proceeds of crime legislation. The proceeds of crime proceedings follow a successful criminal prosecution of Steven Irvine Hart, the respondent in the one of the three High Court appeals, for his involvement in tax minimisation schemes. During that prosecution, the Commonwealth Director of Public Prosecutions obtained a restraining order on property under Hart’s ‘effective control’. When Hart was convicted in 2006, the restrained property became subject to automatic forfeiture under s 92 of the Proceeds of Crimes Act 2002 (Cth). The present proceedings involve two subsequent actions: first, an action by companies against the Commonwealth under s 102 of the Act claiming an interest in some of the forfeited properties (respondents in two of the three High Court Appeals) for their interests (or an equivalent value) to be transferred to them; second, an action by the Commonwealth DPP under s 141 of the Act seeking a declaration that any property the companies recover in this way be made available to pay any pecuniary penalty Hart was liable to pay. The companies generally succeeded in both actions at the trial in Queensland’s District Court in 2013 and following the Commonwealth’s appeal to Queensland’s Court of Appeal, with the Commonwealth ordered to pay the companies the value of their interests and denied the ability to use that money to pay a nearly $15M pecuniary penalty that Hart was ordered to pay to the Commonwealth in 2010.

The High Court (Kiefel CJ, Bell, Gageler and Edelman JJ, and Gordon J) unanimously allowed the Commonwealth’s appeal against the orders to pay the companies, but dismissed the Commonwealth’s appeal against the refusal to allow it to use the interests the company’s retained to pay off Hart’s pecuniary penalty. Justice Gordon’s judgment sets out the facts, background and orders. The plurality agreed with Gordon J (at [2]) on the facts, the orders and the dismissal of the Commonwealth’s appeal relating to offsetting the pecuniary penalty, but provided alternative reasons for allowing the Commonwealth’s appeal relating to order to restore the companies’ interests. Continue reading

News: Court may no longer expedite MP eligibility referrals

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

DWN042 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on procedural fairness and the conduct of appeals. The appellant, a Pakistani asylum seeker, was denied refugee status and complementary protection by the Nauruan Secretary of the Department of Justice and Border Control. On appealing that determination to the Nauruan Refugee Status Review Tribunal, the Tribunal affirmed the Secretary’s decision and concluded that the appellant’s submitted materials did not support his narrative that he had been targeted by the Taliban and would be targeted if returned to Pakistan. The appellant then appealed to the Supreme Court of Nauru, and gained legal representation only the day before his hearing.

On the morning of the hearing, he filed an amended notice of appeal that raised four grounds of appeal, including that the Tribunal acted contrary to the principles of natural justice in hearing his appeal while he was detained unlawfully in breach of the Nauruan Constitution (see details at [4]). Judge Khan struck out the two grounds relating to natural justice on the basis that his Honour lacked jurisdiction to consider them ‘apparently because (i) the two grounds involved the interpretation and effect of the Constitution of Nauru so that under s 45(a) of the Appeals Act 1972 (Nr) there could be no appeal to the High Court of Australia from his decision on these grounds, and (ii) the Refugees Act was Continue reading

Regional Express Holdings Ltd v Australian Federation of Air Pilots

The High Court has dismissed an appeal against a decision of the Full Federal Court on the standing of employee organisations to allege breaches of the Fair Work Act 2009 (Cth). Section 540(6)(b)(ii) provides that an industrial association can apply for an order relating to a breach if that association is ‘entitled to represent the industrial interests’ of the person affected by the breach. The appellant airline instructed its cadet pilots that if they insisted on their right to accommodation contained in the enterprise agreement they would not be given a position of command. The respondent association alleged that this breached various provisions of the Fair Work Act, and the appellant disputed the association’s status as representing the cadet pilots because none of those pilots were members. The FCAFC held that although the pilots were not in fact members, they were eligible for membership, and thus the respondent was ‘entitled to represent’ their industrial interests.

The High Court (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) unanimously dismissed the appeal, holding that where a person is eligible for membership of an industrial organisation, that organisation’s entitlement ‘to represent the industrial interests of the person’ can be sufficiently shown by its registration under the Fair Work (Registered Organisations) Act 2009 (Cth). After reviewing the legislative provisions, facts and proceedings below (at [2]ff), the Court noted that because the Continue reading

News: The High Court’s summer homework

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

Esso Australia Pty Ltd v Australian Workers’ Union; Australian Workers’ Union v Esso Australia Pty Ltd

The High Court has allowed an appeal and dismissed a second appeal against a decision of the Full Federal Court on protected industrial action and enterprise agreements. During negotiations over a new enterprise bargaining agreement between Esso and the AWU for employees of offshore gas platforms, onshore processing plants, and a marine terminal, AWU organised various forms of industrial action in support of its claims (at [13]ff). AWU claimed that each form of industrial action was protected under s 408(a) of the Fair Work Act (Cth), and Esso claimed some forms of purportedly protected action — relating to bans on equipment performance testing, air freeing and leak testing (which the AWU claimed was ‘de-isolation of equipment’) — were not protected. The Fair Work Commission granted Esso’s application for an order requiring the AWU to stop the organisation of bans on equipment testing, air freeing and leak testing, and in contravention of that order the AWU continued to organise that action. Section 413(5) provides that employees and bargaining representatives must not contravene any orders that apply to them and ‘relate to, or relate to industrial action relating to’ an agreement or a matter that arose during bargaining. Sections 343 and 348 prohibits the coercing others to exercise or not exercise workplace rights or engage in industrial action. Esso claimed the AWU had contravened s 413(5) in ignoring the order, and contravened ss 343 and 348 by organising action to coerce Esso to agree to the AWU’s terms. A majority of the FCAFC upheld the primary judge’s decision to not grant Esso’s s 413(5) declaration on the basis that s 413(5) must relate to an order that is current and operative at the time of protected industrial action. The majority also upheld the primary judge’s conclusion that the AWU had contravened ss 343 and 348, dismissing the AWU’s contention that it believed the action to be lawful and therefore could not be coercive.

A majority of High Court allowed Esso’s appeal (Kiefel CJ, Keane, Nettle and Edelman JJ, Gageler J dissenting) and the Court unanimously dismissed the AWU’s appeal. Dealing Esso’s appeal first, the majority first reviewed the lower court decisions (at [18]ff) and the parties’ contentions before the Court (at [23]ff), before turning to the construction of s 413. Because s 413(5) is ‘poorly drafted’, Continue reading