Friday, March 7, 2014

High Court protection visa challenge delayed until May

Today the High Court was due to hear argument in  two proceedings commenced in the Court’s original jurisdiction challenging the validity of regulations made by the Commonwealth with respect to protection visas.  The challenge arose in the following way.  On 18 October 2013 the newly-elected Abbott Government introduced a new subclass of protection visa, the Subclass 785 temporary protection visa.  The Migration Amendment (Temporary Protection Visa) Regulation 2013inserted clause 866.222 which had the effect that “unauthorised maritime arrivals” could only obtain a temporary protection visa, not a permanent protection visa.  This regulation was disallowed by the Senate on 2 December 2013.  On 16 December 2013 the Government made Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 which again inserted a clause 866.222 which had the effect that a permanent protection visa could not be granted to an unauthorised maritime arrival.  In each case the plaintiffs claim that the second regulation is invalid, on the grounds that it is substantially the same as the earlier regulation that had within the previous 6 months been disallowed by the Senate (thereby invalid under section 48 of the Legislative Instruments Act 2003). They also claim it is invalid because, to the extent it deprives them of eligibility for a protection visa, it is inconsistent with section 36(2) of the Migration Act 1958
Yesterday, the hearing of this challenge was vacated, in order to allow a further disallowance motion in the Senate to run its course.  There are three possible outcomes of that disallowance motion.  One is that the disallowance motion is defeated, and the present challenge will need to continue.  A second possibility is that the disallowance motion will succeed, and a third possibility is that the disallowance motion will not be disposed of within 15 sitting days and the challenged regulation will automatically be deemed to be disallowed (under section 42 of the Legislative Instruments Act 2003).  In either case, the challenge to the validity of the regulation under section 48 of the Legislative Instruments Act 2003 will become moot, but the inconsistency argument would remain, and the there would be an issue as to the ongoing or interim effect of the regulation in the period prior to its disallowance. 
Apart from the issue of the outcome of the Senate disallowance motion, the proceedings are to be amended to add an additional challenge to the cap imposed on Tuesday on the number of protection visas that may be granted in the 2013/14 financial year.  It is clear from the explanatory memorandum that the limit of 2,773 protection visas reflects the number of protection visas that have already been granted in this financial year, and that (if valid) no further visas will be granted until 1 July 2015. If valid, this cap would effectively prevent the present applicants from being granted a protection visa whatever may be the outcome of the challenge to the regulations.

Wednesday, March 5, 2014

Justice Gageler continues to dissent

The High Court has handed down two judgments this morning.  In each case, Gageler J was the sole dissentient.
The first case was James v The Queen.  Kahdr Sleiman suffered multiple injuries as a result of being struck by a motor vehicle being driven by James.  The prosecution case alleged that James deliberately struck Sleiman with the vehicle, intending to cause him serious injury.  The defence case was that Sleiman was struck accidentally while James manoeuvred his vehicle in reverse in order to get away from Sleiman, who was menacing him with a knife.  James was charged with the offence of intentionally causing serious injury to Sleiman.  He was also charged, in the alternative, with recklessly causing serious injury to Mr Sleiman.  It was necessary for the Crown to prove either that James intended to cause serious injury, or foresaw the probability that his act would cause serious injury.  It was not sufficient for the Crown to prove that James intended merely to cause some (not serious) injury, or foresaw the probability of causing some (not serious) injury.  After the jury had retired, it sought clarification of the distinction between the two offences charged.  In the course of that discussion, the prosecutor raised the question of whether the jury should be instructed of the availability of a further alternative verdict, namely that James intentionally caused Sleiman injury, as opposed to serious injury.  The trial judge refused to direct the jury in those terms, indicating that to leave the further alternative verdict at that stage of the trial would deprive James of the possibility of acquittal of the more serious charge. The jury returned a verdict of guilty on the charge of intentionally causing serious injury to Sleiman.
In dismissing an appeal by James, the majority of the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) held that the trial judge was correct to not leave the alternative verdict for the lesser offence to the jury.  The majority held that that the trial judge’s duty with respect to instructing a jury on alternative verdicts is properly understood as an aspect of the duty to secure the fair trial of an accused.  Whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court’s assessment of what justice to the accused required in the circumstances of the particular trial.  That assessment required the court to take into account the real issues at the trial, and the forensic choices of counsel. The court noted that not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by inviting the jury to consider the accused’s guilt of a lesser offence.  While the choices of defence counsel are not determinative, they may nonetheless be relevant to consideration of whether justice requires that an alternative verdict be left.  In the present case, the distinction between an intention to cause “serious injury” and “injury” had a degree of subtlety that was rightly characterised as artificial.  In addition, an instruction to the jury on the alternative verdict might have jeopardised James’ chances of outright acquittal, because the central issue at trial (whether the Crown had excluded the reasonable possibility that James struck Sleiman inadvertently) may have become blurred in a summing-up which introduced additional, uncharged, pathways to conviction.
Gageler J, in dissent, was careful to distinguish two questions: first, had the trial judge erred in failing to leave the alternative verdicts and second, had this failure resulted in a substantial miscarriage of justice.  In answering the first question, Gageler J held that the true principle to be applied was that it was the duty of a trial judge to give such direction to the jury as was necessary to enable them to understand the law as it related to the facts before them.  What is necessary for the jury to know is not determined exclusively by reference to the issues presented by trial counsel, but by reference to the evidence received at trial, and the legal principles which that evidence enlivens. Where there is evidence available to the jury by which the jury could be satisfied of the elements of an included offence, even though not satisfied of all of the elements of the offence charged, then the trial judge is required to instruct the jury in relation to such available alternative verdicts.  That instruction having not been given in this case, the trial judge had made an error of law.  The question then became whether that error had occasioned a substantial miscarriage of justice.  In the present case, it was reasonable to consider that the jury may have been less inclined to be satisfied that James intended to cause serious injury if presented with an available alternative (ie an intention to cause some (not serious) injury) and the conviction of the offence of intentionally causing serious injury could not be considered to be inevitable.
The second case is Electricity Generation Company v Woodside Energy Ltd.  This case involved the construction of a gas supply agreement (GSA) entered into between Verve and various gas suppliers in Western Australia (the Sellers).  Under clause 3.2 of the GSA the Sellers were obliged to make available for delivery to Verve a maximum daily quantity of gas (MDQ).  Under clause 3.3 of the GSA, the Sellers were additionally required to “use reasonable endeavours” to make additional gas available for delivery in excess of MDQ, up to an additional daily quantity specified as the supplemental maximum daily quantity (SMDQ).  In determining whether they were “able to supply SMDQ” on any particular day, the Sellers were entitled to take into account “all relevant commercial, economic and operational matters”.  During the currency of the GSA there was an explosion at a gas plant which had the effect of temporarily reducing the supply of natural gas to the Western Australian market by 30 to 35 per cent.  This resulted in a significant increase in the prevailing market price for gas.  The Sellers advised Verve that they would not receive the nominated SMDQ during the period of the interruption, but invited them to enter a tender process for the supply of additional gas.  Under protest, Verve entered into short term gas supply agreements with the Sellers, at prevailing market prices that were in excess of the price they would have been required to pay for SMDQ under the GSA.  In essence, the question for determination by the High Court was whether the Sellers were entitled to take into account the interruption to the supply of gas in the Western Australian market, and the consequent effect on market conditions, in determining whether or not they were “able” to supply SMDQ as nominated by Verve.
The majority (French CJ, Hayne, Crennan and Kiefel JJ) held that the Sellers’ relevant ability to supply was qualified by reference to the constraints imposed by the commercial and economic considerations bearing upon the Sellers’ business.  The effect of clause 3.3. was that the Sellers were not required to forgo or sacrifice their business interests when using reasonable endeavours to make SMDQ available for delivery.  The word “able” mean the ability of the Sellers, having regards to their capacity and their business interests, to supply SMDQ. Accordingly, the Sellers were entitled to act as they had.

Gageler J (again, the sole dissentient) held that this construction rendered the obligation to use “best endeavours” elusive, if not illusory.  The effect of that construction was that the price fixed by the GSA for the supply of gas operated as a floor price at which the Sellers might choose to supply gas to Verve up to SMDQ only if and when the Sellers considered selling at the price to be in their commercial interests.  There is then no apparent reason to include clause 3.3 at all. Instead, Gageler J held that better construction was that the reference to “able” is a reference to the objective ability and capacity to make gas available to Verve.  This was consistent with the use of “reasonable endeavours” which was acknowledged to be a reference to objectively reasonable endeavours. The relevant “commercial” and “economic” matters which the Sellers were entitled to take into account included such matters as bore upon the objective ability or capacity of the Sellers to make gas available for delivery at the price fixed by the GSA.  The Sellers were not, therefore, obliged to make gas available for delivery at a loss.  However, the relevant “commercial” and “economic” matters did not include the opportunity cost to the Sellers of making gas available under the GSA to Verve rather than having that same gas available to sell more profitably to others. That opportunity cost would not render them objectively “unable” to make the gas available, just reluctant or unwilling to do so.