Friday, November 2, 2012

Next week in the High Court of Australia

Apart from the delivery of judgments referred to in the previous post, the High Court of Australia will hear argument in three cases next week, commencing on Tuesday, 6 November 2012.
First up is TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the FederalCourt of Australia, a challenge to the power of the Federal Court to enforce arbitral awards made in accordance with the UNCITRAL Model Law on International Commercial Arbitration and pursuant to the International Arbitration Act 1974 (Cth).  In a nutshell, the argument is that by requiring the Federal Court to enforce an award notwithstanding the errors of law apparent on the face of the award and notwithstanding limitations placed on the parties’ arbitration agreement. By excluding the court’s traditional supervisory jurisdiction with respect to arbitral awards, the amendments made to the International Arbitration Act 1974 (Cth) in 2010 are said to substantially impair the institutional integrity of the Federal Court and impermissibly vest Commonwealth judicial power in arbitral tribunals by making their awards binding and conclusive.
Next is X7 v Australian Crime Commission.  This case is a challenge to the power of the Australia Crime Commission to conduct an examination of a person charged with an indictable offence where the examination concerns the subject matter of the offence so charged.  The challenge is mounted firstly as a question of the proper construction of the Australian Crime Commission Act 2002 (Cth), and if properly construed the Act does authorise such an examination whether the Act itself is, to that extent, invalid on the basis that it impermissibly interferes with the administration of justice in the exercise of Commonwealth judicial power and/or is contrary to section 80 of the Constitution.
Finally, the High Court will hear argument in Baini v The Queen.  This case considers whether the approach of the High Court in Weiss v The Queen to the application of the “proviso” in dismissing a criminal appeal in Victoria survives the introduction of section 276 of the Criminal Procedure Act 2009 (Vic).

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