Friday, March 8, 2013

Forthcoming judgments in the High Court of Australia

The High Court of Australia will deliver four outstanding (ie reserved, not necessarily spectacular) judgments next week.
On Wednesday, 13 March 2013 two judgments will be delivered.  The first is the judgment in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court 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. 
The second is the judgment in Huynh v The Queen, a series of three appeals arising out of a murder by stabbing in the course of a brawl at the end of an 18th birthday party.  The appeals raise for consideration the extent to which a jury must be directed as to the element of “participation” in a joint enterprise liability for murder (ie where the accused is not alleged to have been the stabber, but was a party to an arrangement or understanding to kill the victim).
Then, on Thursday, 14 March 2013 a further two judgments will be delivered.  The first is in Assistant Commissioner Michael James Condon v Pompano Pty Ltd, in which the Court will consider the constitutional validity of the Queensland  Criminal Organisation Act 2009 in an application by Queensland Police for a declaration that the Finks Motorcycle Club was a “criminal organisation” and that the respondent company Pompano Pty Ltd was a “part” of that organisation. 
The second is the judgment in Yates v The Queen, an application for special leave heard as if on an appeal, in which the appellant challenges the imposition of an indeterminate prison sentence under section 662 of the Western Australia Criminal Code following his conviction in 1987 of deprivation of liberty and aggravated sexual assault on a 13 year old girl when he was aged 25.  This “deviant behaviour” is said to be a result of various factors unlikely ever to change, including including brain damage, effectively rendering his sentence a lifetime of imprisonment.  

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