Judgments next week in the High Court of Australia

On Wednesday, 7 August 2013 the High Court will deliver judgment in two outstanding cases.

The first is judgment in Leo Akiba (on behalf of the Torres Strait Regional Sea Claims Group) v Commonwealth of Australia.  These proceedings arise out of a native title determination application filed on behalf of the Torres Strait Regional Seas Claim Group.  The application was opposed by the Commonwealth, the State of Queensland, a large group of people and companies collectively described as “The Commercial Fishing Parties” and a small number of parties from Papua New Guinea.  The application sought a determination of native title rights and interests in a large part of the sea area of the Torres Strait.  The occupation of the region by the Seas Claim Group and their ancestors was of an essentially maritime character.  The sea is an integral presence in the lives and livelihood of the Islander communities that comprise the Seas Claim Group. At issue is whether or not there is a single Torres Strait Island society for the purposes of the Native Title Act 1993, whether rights held under traditional laws and customs on the basis of a ‘reciprocal relationship’ with a holder of ‘occupation based rights’ are native title rights or interests for the purposes of the Act, and whether or not the laws of The Commonwealth and the State of Queensland governing fishing rights had extinguished such native title as the plaintiff’s might otherwise have held.

The second is judgment in Fortescue Metals Group Limited v Commonwealth of Australia, the challenge by Andrew Forrest to the Commonwealth’s Mineral Resources Rent Tax, more common known as the Mining Tax.

Next week in the High Court of Australia

The High Court of Australia returns from its July recess next week, and will hear argument in 5 appeals.

The first two appeals, to be heard on 6 August 2013, are Munda v State of Western Australia and Bugmy v The Queen. In addition to raising general issues as to the proper approach to be taken in determining a Crown appeal against sentence on the grounds of “manifest inadequacy”.  The appeals also give rise to more specific issues relating to the sentencing of aboriginal offenders, and the relevance of the social deprivation and systemic alcohol abuse and other forms of disadvantage experienced by aboriginal offenders.

On 7 August 2013 the Court will hear argument in Comcare v PVYW.  This appeal raises a relatively narrow question of the meaning of the phrase “in the course of employment” commonly used in workers compensation statutes.  The case itself has gained a degree of notoriety because of the particular facts of the case. The worker was required to travel to a country town by her employer.  She arranged to meet a male friend for dinner, following which they returned to her hotel room and had sex.  In doing so, a light fitting mounted above the bed was pulled from the wall and fell on the worker’s face, resulting in physical and psychological injury. The question for determination is whether or not her injury arose in the course of her employment.

On 8 August 2013 the Court will hear argument in Diehm v Director of Public Prosecutions (Nauru).  This is an appeal from the Supreme Court of Nauru in which the appellants challenge their convictions in relation to a sexual assault on the grounds that the failure by the prosecution to call certain witnesses (and the trial judge’s failure to call those witnesses).

On 9 August 2013 the Court will hear argument in Willmott Growers Group Inc v Willmott Forests Ltd.  In this case the Court will consider the long-standing power of a liquidator to disclaim onerous property.  The liquidators of the respondent company seek to disclaim leases issued by it in favour of members of various forestry investment schemes.  This is to enable land owned by the respondent company (its only significant asset) to be sold, which commercially can only occur if the land is unencumbered by the leases.  The appellant growers wish to continue to conduct the forestry investment schemes on the land, having already invested between 18 and 23 years in the schemes.

Judgments to be delivered this week in the High Court of Australia

This week the High Court will deliver judgment in four cases.

On Wednesday, 26 June 2013 the Court will deliver judgment in 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.

On Thursday, 27 June 2013 judgment will be delivered in three cases.  First in the list is Director of Public Prosecutions v JM, an appeal from the Victorian Court of Appeal in a share market manipulation case.  In essence the question for consideration is whether the meaning of the phrase “artificial price” within the meaning of section 1041 of the Corporations Act 2001 is to be informed by the US jurisprudence relating to “cornering” and “squeezing”, concepts derived from trading in the futures markets that have no practical application in the equities market with which the prosecution of the respondent was concerned.  More generally, the cases raises important issues in relation to statutory construction, and in particular the use, and utility, or extrinsic material.

Judgment will also be delivered in Nguyenv The Queen, an appeal by Dang Khoa Nguyen in criminal proceedings that have already made their way to the High Court on a previous occasion (see R v Nguyen (2010) 242 CLR 491, an appeal involving Dang Khoa Nguyen’s co-accused, Dang Quang Nguyen).  At issue is whether the trial judge ought to have left for consideration by the jury an alternative charge of manslaughter (by acting in concert, by extended common purpose, or by aiding and abetting) where the perpetrator had been conceited of murder.  A further issue of more general importance is the extent to which a trial judge is entitled to have regard to the manner in which an accused has conducted the defence in determining whether or not to leave an alternative charge for the jury’s consideration.  This judgment is being delivered only 3 weeks after the hearing.

Finally, the Court will deliver judgment in Issa v The Queen and Elias v The Queen, in which the Court will consider the extent of the principle in R v Liang & Li, whereby a sentencing court imposing a penalty for a State offence is required to have regard to the fact that the accused could have been charged with a different offence under State law that carried a lesser penalty.  At issue in the appeal is whether or not in sentencing a person for a State offence, the principle in R v Liang & Li requires a court to take into account that the person could have been charged with a similar offence for the same conduct under a Commonwealth law which carried a lesser maximum penalty. Again, this judgment is being delivered relatively quickly, with the argument have been heard on 30 May 2013.

High Court upholds Queensland liquor laws on Palm Island

In today’s decision in Maloney v The Queen the High Court of Australia unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland which held that a law restricting possession of alcohol on Palm Island was not invalid by reason of inconsistency with section 10 of the Racial Discrimination Act 1975 (Cth).

Ms Maloney is an Indigenous resident of Palm Island in Queensland.  She was convicted of the offence of being in possession of more than a prescribed quantity of liquor in a restricted area on Palm Island contrary to section 168B of the Liquor Act 1992 (Qld).  Schedule 1R of the Liquor Regulation, made under the Act, has the effect of restricting the nature and quantity of liquor which people may have in their possession in public areas on Palm Island.  The Palm Island community is composed almost entirely of Indigenous people.

Ms Maloney challenged her conviction, arguing that Schedule 1R of the Liquor Regulation contravened the Racial Discrimination Act.  By section 10 of that Act, where a law has the effect that persons of a particular race enjoy a right to a more limited extent than persons of another race, the persons adversely affected shall enjoy that right to the same extent as the persons of that other race.  Ms Maloney argued that the Liquor Regulation affected her enjoyment of three rights:  the right to equal treatment before courts and tribunals; the right to own property; and the right to access places and services intended for use by the general public.  This was disputed by the State of Queensland.

The State of Queensland also argued that the Liquor Regulation is a “special measure” taken for the sole purpose of securing the adequate advancement of a racial group requiring such protection as may be necessary to ensure that group’s equal enjoyment or exercise of human rights and fundamental freedoms.  If so, then section 10 did not apply.

The six-member bench of the High Court unanimously held that the Liquor Regulation constituted a “special measure” within the meaning of the Act.  In doing so, the Court rejected the proposition that a necessary prerequisite for a “special measure” was that there had been consultation (much less “adequate consultation”) with the Indigenous community.  They also rejected the proposition that the Liquor Regulation was not a “special measure” because there were less restrictive means of achieving the undisputed aim of addressing alcohol-related violence on Palm Island.

Their Honours differed in relation to whether or not the Liquor Act resulted in a “right” being enjoyed “to a more limited extent”.  Kiefel J held that none of the three rights identified by Ms Maloney was affected by the Liquor Regulation.  Of the remaining judges:

• French CJ and Gageler J rejected the proposition that Ms Maloney’s right to equal treatment before courts and tribunals had been affected (holding, in effect, that this right was directed towards procedural laws and not substantive laws).  Hayne J (with whom Crennan J agreed) doubted that this right had been affected but did not need to decide the question, and Bell J considered it unnecessary and therefore inappropriate to decide;
• French CJ, Hayne J (with whom CrennanJ agreed), Bell J and Gageler J held that Ms Maloney’s right to own property had been affected;
• French CJ rejected the proposition that the Liquor regulation affected Ms Maloney’s right of access to a place or service intended for use by the general public.  Hayne J (with whom Crennan J agreed) doubted that this right had been affected but did not need to decide the question.  Bell J and Gageler J held that this right was affected.

Beyond the specific determination of the validity of the Liquor Regulation, the decision provides a detailed and important examination by the High Court of a number of issues.   These include:

• the proper approach to identifying the “rights” referred to in section 10, and the extent to which they are “limited” by a particular legislative provision;
• the proper function of the courts in determining whether or not a particular law is a “special measure”, and the deference to be given to the legislative and executive arms of government in that determination;
• the relevance (or not) of determinations by international bodies in giving content to the term “special measures”;
• the relevance of prior consultation with affected communities in determining whether or not a law was a “special measure”;
• more generally, the proper approach of the courts in finding “constitutional facts” for the purposes of ruling upon invalidity of legislation;
• the relevance of “proportionality” in determining whether there has been a contravention of section 10, and in determining whether or not a law is a “special measure”.

The judgment (in which each of the six members of the Court wrote separately, running to 141 pages) will require careful and detailed reading in order to ascertain precisely what has been held in relation to these broader issues, in particular the first issue as to the identification of the relevant rights and their limitation in order to ascertain whether section 10 is engaged.

Grants of Special Leave to Appeal to the High Court of Australia

Last week the High Court of Australia granted special leave to appeal in five cases.

The case of Munda v State of Western Australia is a sentencing appeal in which the Court will be called upon to consider similar issues to the case of Bugmy v The Queen which is currently listed for hearing on 6 August 2013.  The cases raise two issues of general importance.  The first is the application of the principles articulated in R v Fernando (1992) 76 A Crim R 58, in which Wood J considered the relevance of Aboriginality in sentencing.  The second is the exercise of the residual discretion of an intermediate appellate court not to interfere with the sentence in a Crown appeal even where the sentence is erroneously lenient (the principles were recently discussed in Green v The Queen [2011] HCA 49).

In PEB v The Queen the appellant was convicted on charges of indecently dealing with a child.  The appellant, the complainant’s step-grandfather, mounted a positive case at trial to the effect that the incidents could not have occurred on the occasions alleged.  One ground of appeal to the Qld Court of Appeal was that the verdicts were unsafe and satisfactory.  It is well-established that such an appeal requires the Court of Appeal to make an independent assessment of the whole of the evidence to determine whether the verdicts could be supported.  This was done in a mere 13 paragraphs that described the evidence and the cases of the prosecution and the defence, and a further five short paragraphs in which that evidence was assessed.  At issue in the High Court is the adequacy of the reasons given by the Qld Court of Appeal in determining that the verdicts were not shown to be unsafe and unsatisfactory.

In Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited the High Court will consider the principles to be applied in determining whether or not legal professional privilege is waived by the accidental production of privileged documents in the course of discovery in civil proceedings.

In Daly v Thiering the High Court will consider the question of whether or not the Lifetime Care and Support Authority established under the NSW Motor Accidents legislation and/or a Compulsory Third Party insurer is liable to pay for gratuitous care and assistance provided to an injured person.  The answer to that question has subsequently been made clear by statutory amendment, but the amendment has no retrospective effect so that the case is still worth $40 million to the motor accidents insurance industry.

Finally, Magaming v The Queen will consider the constitutionality of the mandatory minimum sentences of five years (for a first offence) imposed by the Migration Act 1958 (Cth) for offences relating to people smuggling.  The NSW Court of Criminal Appeal unanimously upheld the validity of the provisions, but Allsop P (in comments with which Bathurst CJ specifically agreed) provided a withering attack on the humanity of the sentences when applied (as they were in this case) to the conviction of “an illiterate and indigent deckhand”.  It was also an attack on the humanity of the decision to prosecute on the particular people-smuggling charge, instead of a lesser charge in which the individual circumstances of the defendant could have been taken into consideration in sentencing.