Monday, October 8, 2012

Grants of Special Leave to Appeal to the High Court

In the Special Leave lists on Friday, 5 October 2012 the High Court granted Special Leave to Appeal in three cases, referred a fourth to the Full Court, and granted an Application for Removal into the High Court.
The first grant of Special Leave is in Wallace v Kam, an interesting failure to warn case.  The plaintiff suffered from a temporary condition known as bilateral femoral neuropraxia following spinal surgery.  This was caused by lying prone for an extended period during surgery, and was not a result of the procedure itself.  The plaintiff had not been warned of the risk of this condition, but the trial judge held that had he been warned he would have gone ahead with the surgery nonetheless.  However, the plaintiff also claimed that he had not been warned of the risk of paralysis as a result of damage to the spinal nerves from the surgery itself.  Had he been warned of that risk, he would not have proceeded with the surgery.  The trial judge and the Court of Appeal held that this risk was irrelevant, as it was not the risk that materialised, and the plaintiff was not entitled to recover damages for the risk that did materialise, because he was prepared to accept that risk.
The second grant of Special Leave is in Akiba v Commonwealth, an appeal from a decision of the Full Federal Court in which that Court held that Commonwealth and Queensland licensing regimes for commercial fishing extinguished the native title right to take fish and other marine life for commercial or trading purposes.
The third grant of Special Leave is in Maloney v The Queen, an appeal from a decision of the Queensland Court of Appeal upholding the validity of certain provisions of the Liquor Act 1992 (Qld) prohibiting the possession of alcohol on Palm Island as not being inconsistent with the Racial Discrimination Act 1975 (Cth).
The application for Special Leave to Appeal in Beckett v State of New South Wales was referred to the Full Court for hearing as if on appeal.  This case raises the question of whether, in a claim for malicious prosecution, the plaintiff (formerly known as Roseanne Catt) who was convicted but whose convictions were set aside following which the DPP decided not to proceed to a retrial, is required to plead (and prove) that she is innocent of the charges originally laid.
In the successful Application for Removal brought by the Queensland Chapter of the Finks in Pompano v Assistant Commissioner Condon, the High Court will consider the constitutional validity of the anti-gang laws enacted as part of the Criminal Organisation Act 2009 in Queensland.
* Links are to the decision appealed from.

Friday, October 5, 2012

Today's High Court decision in Plaintiff M47

Today’s decision in Plaintiff M47/2012 v Director-General of Security is somewhat dense, lengthy, and consists of seven separate judgments.  What follows is an attempt, in the short time available this afternoon, to summarise the key finding of the majority that the public interest criterion, applied by the Commonwealth in denying the plaintiff a visa, was invalid.  The essence of the decision seems to be as follows.
The Migration Act establishes a scheme by which Australia gives effect to its protection obligations under the Refugees Convention.  The relevant provisions of that Convention are as follows:
  • Article 1A – which provides the definition of a “refugee” – it was not in dispute that the plaintiff in this case satisfied that definition
  • Article 1F – which qualifies the application of protection obligations to persons who have committed crimes against peace, war crimes, crimes against humanity or serious non-political crimes outside the country of refuge, or have been guilty of acts contrary to the purposes and principles of the United Nations.  This Article was not relied on, and was conceded by the Commonwealth to have no application to the plaintiff.
  • Article 32 – by which Contracting States agree not to expel a refugee lawfully in their territory save on grounds of national security or public order, which expulsion may only be in pursuance of a decision reached in accordance with due process of law (which includes the ability of the asylum seeker to submit evidence to clear their name).
  • Article 33 – which provides that a Contracting State may not expel or return a refugee to a country where his life or freedom would be threatened on a Convention ground. This protection, however, does not apply to  a refugee where there are reasonable grounds for regarding the refugee as a danger to the security of the country in he seeks asylum (or having been convicted of a particularly serious crime constitutes a danger to the community of that country).

Section 36(1) of the Migration Act establishes a class of visa called a “protection visa”.  Section 36(2) then prescribes as “a criterion” for the grant of a protection visa, relevantly, that the person is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention.
Section 65 provides that after considering a valid application for a visa the Minister, if satisfied that the criteria for the grant of a visa are satisfied, and that the grant is not otherwise prevented by various sections of the Act, then the Minister is to grant the visa. If not so satisfied, the Minister is to refuse the visa. The provisions by which the Minister may decline to grant a protection visa include section 501, which provides for a “character test”.
In addition to the criterion established by section 36(1) of the Migration Act, the Migration Regulations establish various additional criteria for the grant of a protection visa.  These include that the applicant for the visa satisfy the so-called “public interest criteria”.  These include PIC 4001 (in effect a character test of the kind provided for by section 501) and PIC 4002 – that the applicant has not been assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the ASIOC Act.
The statutory framework provided by the Migration Act provides for review of various decision made by the Minister.  Importantly, section 500 provides for review by the Administrative Appeals Tribunal of a determination that a person does not satisfy the character test provided for by section 501.  It also provides for review by the Administrative Appeals Tribunal of a determination to refuse to grant a visa by relying on Articles 1F, 32 or 33 of the Refugees Convention.
In effect, what the majority of the High Court seems to have decided is that PIC 4002 effectively invests in the Director-General of Security the power to determine, in a manner that is not reviewable by any Court or Tribunal, whether or not the applicant for a visa poses a risk to the security of Australia or the Australian community.  If the regulations were valid, this would have the practical effect that in the plaintiff’s case the decision to refuse to grant a protection visa was made on security grounds by the Director-General of Security (the adverse security assessment thereby denying the Minister any power to grant the visa) and was not reviewable by a Court or Tribunal.  
This scheme established by the regulations, the majority of the High Court held, was inconsistent with the scheme established by the Act, which vested the power to determine the extent of Australia’s protection obligations to persons who posed security threats in the Minister, whose decision based upon such adverse assessments were reviewable under section 500 by the Administrative Appeals Tribunal.  Because that review mechanism (in part an implementation of the obligations under Article 33 of the Refugees Convention) was circumvented by the Commonwealth relying upon PIC 4001 and 4002 rather than the provisions of the Act itself, to that extent the regulation (and in particular PIC 4002) was invalid.
Ironically, perhaps, this had the effect that there has been no determination according to law of the plaintiff’s visa application, and so the plaintiff’s detention continues to be authorised by the Act until such a decision is made.

Monday, October 1, 2012

Judgments this week in the High Court of Australia

On Tuesday, 2 October 2012 the High Court will deliver judgment in a number of reserved cases at 10:15am.
First cab off the rank, and probably least interesting, is a judgment in relation to costs following the delivery of judgment in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 on 7 September 2012.
Twiggy Forrest will be hoping for two out of two when judgment is delivered in in Forrest v ASIC, an appeal against the Full Federal Court’s decision upholding an application by ASIC for civil penalties to be imposed on Forrest and Fortescue Metals.  The proceedings related to alleged misrepresentations about to contracts entered into with a number of Chinese companies for the construction of certain railway infrastructure for Fortescue Metal’s Pilbara iron ore project.  At first instance ASIC’s application was dismissed in one of its many spectacular failures in the courts in recent years.  At issue will be the extent to which, and the circumstances in which, a statement of opinion (and in particular an opinion as to the effect of a contract) will be held to be misleading.
A potentially significant judgment will be delivered in Barclay v Penberthy.  This case arose out of an aircraft accident in Western Australia on 11 August 2003.  Penberthy was the pilot of the aircraft, which had been chartered by Nautronix Holdings to conduct surveillance and aerial work in connection with marine technology it was developing.  Two passengers died and three were injured: all were employees of Nautronix.  At trial, it was held that the cause of the accident was a failure of an engine during takeoff, and the negligent handling of the aircraft in response to that failure.  The engine failure was caused by a faulty sleeve bearing.  The bearing was not the original bearing but a substitute that had been designed by Barclay, an aeronautical engineer.  As a result of the loss of the death and injury to Nautronix’s employees, its capacity to develop and commercially exploit the marine technology was inhibited, leading to a claim by Nautronix for pure economic loss.  At issue in the case is whether or not Penberthy and/or Barclay owed Nautronix a duty to exercise reasonable care to prevent it from suffering pure economic loss.  Determining that issue will involve an examination of the action by an employer for loss of services of its employees (per quod servitium amisit), and its interaction with the rule on Baker v Bolton (which held that at common law the death of a person causes solely emotional and pure economic loss to their dependants, neither of which sounds in damages – this case resulted in the enactment of Lord Campbell’s Act).
Finally, judgment will be delivered in Commissioner of Taxation v Qantas Airways Ltd.  This case raises the question of what is the taxable supply, if any, where a passenger has paid the fare for a flight but either cancels the reservation [see Seinfeld reference] or does not present themselves for carriage, and no refund is available or claimed: is it the reservation or the failed flight?
The 70th birthday (aka the Constitutional age of senility) of Gummow J next Tuesday, 9 October 2012 means there is less than a week for judgments to be delivered in the remaining cases on which Gummow J sat, including: