Monday, August 8, 2011

This week in the High Court of Australia

Obviously, of most interest is today's hearing before Justice Hayne in which 16 plaintiffs will argue for an extension of an interim injunction made last night by Justice Hayne, and which expires today at 4:15pm.  It would seem to be a difficult ask for the Commonwealth, who would effectively need to argue that the various bases of challenge made by the plaintiffs are simply unarguable.  The Commonwealth's arguments about balance of convenience are essentially financial, and given the law's interest in protecting liberty, I can't see a single judge of the High Court finding in its favour.  But stranger things have happened.

Liberty also gets a guernsey this week on Wednesday when the High Court hands down its judgment in the related appeals in Haskins v Commonwealth and Nicholas v Commonwealth.  In these cases the plaintiffs challenge the Military Justice (Interim Measures) Act (No 2) 2009.  This legislation was enacted by the Commonwealth after the High Court declared provisions of the Defence Force Discipline Act 1982 establishing Australian Military Court in Lane v Morrison (2009) 239 CLR 230.  The Interim Measures Act purports to retrospectively validate the plaintiffs' detention following sentences imposed by the Australian Military Court prior to the declaration of invalidity.

The High Court will also deliver judgment in the appeals in Boland v Dillon and Cush v Dillon, in which the High Court will rule on whether a statement made by a director of a statutory body to its chairman that published the existence of a rumour as a fact and conveyed defamatory meanings could be the subject of qualified privilege at common law.  The statement was: "It is common knowledge among people in the [Border Rivers-Gwydir Catchment Management Authority] that Les [Les Boland, than a 61 year old director of the CMA, married] and Amanda [Amanda Cush, the CMA's 36 year old General Manager, single] are having an affair."  At the time the statement was made Ms Dillon, a fellow director of the CMA, neither believed that the two were having an affair, nor that it was common knowledge that they were doing so.  In fact, they were not.  However, Ms Dillon seeks to justify the publication of the statement to the Chairman on the grounds that the rumours as to the affair had been raised as a matter of concern with her, in her capacity as a director, by a regional director of the relevant Government Department.

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