Thursday, April 4, 2013

This week in the High Court of Australia

Apologies for being late with this update…the Easter break has left me a little behind.
Yesterday, 3 April 2013 the High Court heard argument in Director of Public Prosecutions (Cth) v Keating.  In this case Keating was charged with obtaining a financial advantage in breach of section 135.2 of the Commonwealth Criminal Code.  This financial advantage was said to be the overpayment of certain social security benefits, totalling the princely sum of $6,292.79.  The overpayments occurred because Keating failed to inform Centrelink of changes to her income, which fluctuated fortnightly.  At the time of the overpayments, there was no obligation on Keating to inform Centrelink of the changes to her income.  Indeed, this was still the case at the time Keating was charged.  This situation was remedied in 2011 with the introduction of section 66A of the Social Security (Administration) Act 1999.  The main issue that arises for determination in the High Court is whether or not the Commonwealth has the power to retroactively impose the duty to inform Centrelink so as to now criminalise her past conduct, and if it has such a power whether section 66A in fact achieves that result.
Today the High Court hears argument in Kakavas v Crown Melbourne Limited, a case involving a chronic gambler seeking to recover $20.5 million from the operator of Melbourne’s Crown Casino.  The appellant was suffering from a psychiatric condition known as pathologic gambling.  He was also subject to an exclusion order from Star City Casino in Sydney (issued by the NSW Police) as a result of which he was also prohibited from entering the Crown Casino in Melbourne and any winnings payable to him from gambling were forfeited to the State of Victoria.  It is apparent Crown Casino was aware of the appellant’s gambling habits and financial difficulties over a long period of time, but nonetheless the appellant was provided with various inducements to return to the casino and to gamble.  At issue in the High Court is whether the Casino acted unconscionably within the meaning of section 51AA of the Trade Practices Act 1974 by inducing him to gamble when it knew or ought to have known that he was suffering from a “special disadvantage”, namely pathological gambling.  Also at issue is whether or not the Casino acted unconscionably in inducing him to gamble in circumstances where it knew or ought to have known that by reason of the interstate exclusion order he was unable to retain any winnings from gambling at the Crown Casino.  

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