Next week in the High Court of Australia

Next week the High Court of Australia will hear argument in four cases.

First up on Tuesday, 27 March 2012 is Crump v State of NSW which will address the validity of section 154A of the Crimes (Administration of Sentences) Act 1999.  In 1974 Crump and a co-offender were sentenced to life imprisonment for murdering Ian Lamb, and for conspiring to murder Virginia Morse.  Justice Taylor recommended that Crump never be released.  As a result of subsequent amendments to the sentencing regime in NSW Crump applied for, and eventually succeeded in obtaining, a re-determination of his sentence so that he was required to serve a minimum sentence of 30 years in prison and thereafter became eligible for parole.  Following that re-determination, however, section 154A was enacted.  This section provides the Parole Authority with the power to release a prisoner the subject of a not for release recommendation, but only if the prisoner lacks the physical ability to harm any person, or is in imminent danger of dying, and in addition poses no risk to the community.  Crump does not satisfy these conditions.  Whereas according to the re-determination of his sentence he was now eligible for parole, section 154A had the effect that he could not be released, except in limited circumstances that did not apply to him.  At issue is whether the Parliament of a State has the power to pass a law such as section 154A that has the effect of varying or altering the operation of judgment of the Supreme Court of that State.  It therefore raises, yet again, an opportunity for the High Court to opine on the operation and limits of the so-called Kable doctrine.

The next case is The Honourable Brendan O'Connor Commonwealth Minister for Home Affairs v Zentai, to be heard on Wednesday, 28 March 2012.  This is yet another step in protracted attempts to extradite Charles Zentai to Hungary in order to face trial in respect of alleged war crimes.  At issue in the proceedings is whether or not extradition is precluded where the specific offence for which extradition is sought  was not an offence under Hungarian law at the relevant time (the conduct having occurred in 1944, and the war crime offence not having been enacted until 1945), even though the conduct constituted another offence (ie murder) at the relevant time.

On Thursday, 29 March 2012 the Court will hear argument in Board of Bendigo Regional Institute of Technical and Further Education v Barclay.  Barclay is a senior teacher employed by BRIT, and is also the sub-branch president at BRIT of the Australian Education Union. Barclay, in his AEU capacity, forwarded an email to AEU members employed at BRIT, in relation to an upcoming re-accreditation audit, in which he said he was aware of reports of misconduct by unnamed persons in BRIT.  The CEO of BRIT wrote to Barclay requiring him to show cause why he should not be disciplined for failing to report the misconduct alleged in his email to senior managers. Barclay was suspended on full pay, had his internet access suspended and was not required to attend BRIT during the suspension period.  At issue is whether or not the “adverse action” taken against Barclay by the CEO was taken because of a “proscribed reason” (in this case because of his membership of, or role in, the AEU or because he had been engaged in industrial activity).  Importantly, the case raises the question of whether, in answering that question, one is applying a subjective test and inquiring into the decision-maker’s actual state of mind, or whether one is applying an objective test so that it is sufficient to establish contravention that Barclay’s conduct was undertaken in his capacity as a union official, and that conduct has resulted in the adverse action taken.

Finally, on Friday 30 March 2012 the High Court will hear the continuation of argument in Forrest v Australian Securities and Investments Commission.