Tuesday, June 10, 2014

This week in the High Court of Australia

The High court will hear argument in a number of cases this week.
Commencing on Tuesday, 10 June 2014 is Tajjour v State of New South Wales, which comprises three challenges brought to section 93X of the NSW Crimes Act 1900.  This section was introduced by the Crimes Amendment (Consorting and Organised Crime) Act 2012.  It provides that a person who “habitually consorts with convicted offenders” and who in fact consorts with those convicted offenders after being given an official warning in relation to each of those convicted offenders, is guilty of an offence.  Consorting may occur in person, or by any other form of communication, including electronically.  A “convicted offender” is any person convicted of any indictable offence.  There are various defences available where a Court is satisfied that the consorting was reasonable in the circumstances, such as consorting with family members, or in the course of employment, or training and education, or in the provision of health or legal services. The plaintiffs in the three sets of proceedings challenge the laws on the grounds that they impermissibly burden the implied freedom of communication on governmental and political matters contrary to the Commonwealth Constitution.  They also raise the question of whether the Constitution contains an implied freedom of association, independently of the implied freedom of communication.  A challenge is also made on the independent ground that the provisions contravene the International Covenant on Civil and Political Rights. which, so it is alleged, places a limitation upon the legislative power of the State of New South Wales.
On Thursday, 12 June 2014 the Court will hear argument in Honeysett v The Queen.  In this case the accused was convicted of armed robbery. The Crown adduced evidence from a “forensic anatomist” who compared images of the offender taken from CCTV footage of the robbery with police photographs of the accused.  The expert gave an anatomical description of the offender based on the CCTV by reference to eight features, including that he had a slim body build, a well-bent small of the back, sort hair and a head that was somewhat elongated rather than round.  The expert also gave evidence that the accused also shared the eight anatomical features identified in the offender.  He also gave evidence that he was unable to discern any differences between the accused and the offender.  At issue in the appeal is the admissibility of that evidence as “expert opinion” in accordance with section 79 of the Evidence Act 1995.

On Friday, 13 June 2014 the Court will hear argument in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY.  This case arises out of an administrative error made by the registry of the Refugee Review Tribunal.  The respondent had applied for a protection visa, but had been unsuccessful.  An appeal to the RRT was also unsuccessful, although the RRT’s decision was later set aside by consent in the federal court and remitted to the RRT for further consideration.  That further consideration was also unsuccessful and on 12 March 2012 the RRT affirmed the original delegate’s decision refusing the protection visa.  The RRT sent a copy of its decision to the Secretary of the Department, and to the respondent.  Unfortunately, the respondent’s copy was inadvertently sent to an old address, and not to the address that had last been notified to the RRT by the respondent.  A copy was sent to the correct address on 28 May 2012.  In between those dates, however, a new complementary protection regime came into force in Australia, which provided protection for person who did not meet the definition of a refugee but who nonetheless faced a risk of harm if they were deported from Australia.  This regime was available to persons who had applied for a protection visa, but only if their application had not been finally determined before 24 March 2012.  The question for determination by the High court, therefore, is whether or not the notification of the RRT’s decision to the respondent is necessary before the application is “finally determined”.

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