Wednesday, January 25, 2012

In the High Court - first appeal hearings for 2012

Next week sees the commencement of the 2012 Law Term for the High Court of Australia.

Tuesday, 31 January 2012 kicks off with the Australian Education Union v General Manager Fair Work Australia.  This is essentially a demarcation dispute between two unions, the Australian Principals Federation and the Australian Education Union, which raises an issue of statutory construction (whether section 26A of the Fair Work (Registered Organisations) Act 2009 operates to validate the registration of the APF in circumstances where the Full Federal Court had already determined that the registration was not valid) and an issue of constitutional law (whether, assuming section 26A had that effect, it was an invalid usurpation of or interference with the judicial power of the Commonwealth).  Truly, one for the law nerds.

Wednesday, 1 February 2012 is a taxation case, with the hearing of Commissioner of Taxation of the Commonwealth of Australia v Bargwanna.  The question in this case is whether, in determining an application by a charitable trust for endorsement as an income tax exempt entity, the fact that the application of some of the trust funds is for purposes other than public charitable purposes results in the trust not being entitled to tax exempt status. A related question is what are the factors to be considered in determining an entitlement to that status.

Thursday, 2 February 2012 sees the appeal in ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue, raising issues relating to the operation of the NSW Duties Act 1997, and whether or not a Deed of Consent an Assignment constituted an assignment of the benefit of a contract for the sale of land, or a novation of that contract.

Finally, on Friday 3 February 2012 an interesting appeal in Harbour Radio Pty Ltd v Trad.  This defamation case arises out of a rally in Hyde Park following the Cronulla riots in December 2005.  Keysar Trad addressed the rally in the course of which he made various allegations against Radio 2GB including of whipping up fears, that it was racist, that it was a predominant cause of the suffering of many of Australia’s Muslims, and that it ought to have sedition laws applied against it.  This provoked a response by Jason Morrison on Radio 2GB the following day, in a broadcast that a jury found conveyed various defamatory imputations about Trad, including that he incited people to commit acts of violence and to have racist attitudes, he was a disgraceful and dangerous individual, was widely perceived as a pest, and deliberately gave out false information about the Islamic community.  Radio 2GB then relied on various defences, including truth, contextual truth, the “response to attack” qualified privilege at common law, and comment.  They relied upon comments publish by Trad in relation to homosexuality (including that it was analogous to cancer, that homosexuals were no more civilised than dogs and were sub-human, and that lesbianism was little different to shared masturbation), his endorsement of anti-Semitic websites, his defence of comments by Sheikh Hilali suggesting women were responsible for sexual violence by likening them to “uncovered meat”.  It is the upholding of those defences by McLelland J (and their reversal by the Court of Appeal) that gives rise to the appeal.

Further details are available on the High Court’s website.

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