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”.

Judgments delivered today by the High Court of Australia

The High Court has today allowed two appeals.

In the first, MacarthurCook Fund Management Ltd v TFML Ltd the High Court unanimously allowed an appeal from a decision of the NSW Court of Appeal.  The High Court held that redemption of certain interests in a managed investment scheme did not constitute a withdrawal from that scheme within the meaning of Part 5C.6 of the Corporations Act 2001.

In the second, Gillard v The Queen, the High Court unanimously allowed an appeal from the ACT Court of Appeal against conviction for four sexual offences. The prosecution established that the appellant had abused a position of trust over the complainant which resulted in the complainant consenting to sexual intercourse. That abuse of trust had the result that the complainant’s consent was negatived by force of section 67 of the ACT Crimes Act 1900.  This was sufficient to satisfy the physical element of the offences charged (ie, sexual intercourse without consent).  The mental element for the offences required proof that the appellant knew the complainant was not consenting, or was reckless as to whether or not the complainant was not consenting.  The High Court held that merely being reckless as to the fact that the appellant was abusing his position, or reckless as to the fact that this abuse of position resulted in the complainant’s consent, was not sufficient to establish that the appellant was reckless as to the complainant’s consent.

Forthcoming judgments in the High Court of Australia

On Wednesday, 14 May 2014 the High Court will deliver judgment in two cases.

The first is Gillard v The Queen, in which the High Court has been asked to consider the role of recklessness in proving absence of consent in relation to various sexual assault offences under the ACT Crimes Act 1900.

The second is MacarthurCook Fund Management Ltd v TFML Limited, in which the High Court will consider whether the procedures set out in Part 5C.6 of the Corporations Act 2001 apply to all methods by which a member of a registered managed investment scheme ceases to be a member, or whether it only applies where the member voluntarily seeks the return of that member’s contribution to the scheme.

On Friday, 16 May 2014 another two judgments will be delivered by the High Court.

The first is Adco Constructions Pty Ltd v Goudappel which relates to the transitional operation of certain amendments to the Workers Compensation Act 1987, but more generally will consider the correct approach to the construction of provisions in an Act which authorize the making of regulations that have a transitional operation and which themselves amend the operation of the Act.

The second is Sidhu v Van Dyke.  In that case the plaintiff alleged she had acted to her detriment in reliance upon promises made by the defendant in relation to her interest in property, allegedly giving rise to a constructive trust in her favour.  The High Court will consider whether it is necessary for the plaintiff to establish that the promises were the sole cause for her acting to her detriment, and whether the appropriate measure of compensation was the detriment suffered by the plaintiff, or the value of the unfulfilled promises.

This week in the High Court of Australia

The High Court will hear argument in three cases this week.

Today sees the continuation of the argument in Plaintiff S156/2013 v Minister for Immigration and Border Protection, in which the plaintiff challenges amendments to the Migration Act 1958 purporting to authorise the removal of Unauthorised Maritime Arrivals to designated regional processing countries (in this particular case, Papua New Guinea).

On Wednesday the Court will hear argument in two related cases, Plaintiff S297/2013 v Minister for Immigration and Border Protection and Plaintiff M150/2013 v Minister for Immigration and Border Protection.  On 18 October 2013 the newly-elected Abbott Government made the Migration Amendment (Temporary Protection Visa) Regulation 2013.  This regulation inserted clause 866.222, which had the effect that “unauthorized maritime arrivals” could only obtain a temporary protection visa, not a permanent protection visa.  The 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 unauthorized maritime arrival.  The cases were originally listed for hearing by the High Court on 7 Mach 2014.  At that stage, the plaintiffs claimed that the second regulation was invalid, on the grounds that it was 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 claimed it was invalid because, to the extent it deprived them of eligibility for a protection visa, it was inconsistent with section 36(2) of the Migration Act 1958. 

On 6 March 2014, the day before the hearing was due to commence,  a motion was pending before the senate to disallow the second regulation.  Accordingly, the hearing was vacated because the issues raised by the case would become moot if the regulation were ultimately disallowed.  The Senate in fact disallowed the second regulation on 27 March 2014.  However, on 5 March 2014 the Minister purported to exercise his power under section 85 of the Migration Act 1958 which provides that the Minister may, by notice in the Gazette, determine the maximum number of the visas of a specified class that may be granted in a specified financial year.  The determination purported to limit the number of protections visas that could be granted in the 2013/4 financial year, a limit that was reached on 24 March 2014.  Accordingly, the present proceedings raise different issues to those raised when they were first commenced.

The plaintiffs collectively now raise a number of different challenges to their inability to be granted a Protection Visa because of the March 2014 Determination.  Firstly, it is asserted that as a matter of statutory construction the power under section 85 does not extend to protection visas.  This is because it is inconsistent with the operation of section 65A, which imposes a 90-day time limit for the making of a decision under section 65 to grant (or not to grant, as the case may be) a protection visa.  Secondly, it is asserted that the registration of the instrument by which the Minister made the March 2014 Determination (in the Federal Register of Legislative Instruments, pursuant to section 56(1) of the Legislative Instruments Act 2003) did not satisfy the requirement that the determination be by “notice in the Gazette”.  Thirdly, it is asserted that the March 2014 Determination was made for an improper purpose.

This week in the High Court of Australia

There are two cases being heard this week in the High Court of Australia.

The first, which commenced yesterday, is Williams v Commonwealth (No 2), a continuation of the battle between Ronald Williams and the Commonwealth Government over the public funding of school chaplaincy programs.  The first round is summarised in my previous post on the decision in Williams v Commonwealth (No 1).  The effect of that decision was (probably) that once the Commonwealth had appropriated moneys through an Appropriation Act, they could not spend that money without further legislative authority.  Following the decision in Williams (No 1), Parliament amended the Financial Management and Accountability Act 1997 and the Financial Management and Accountability Regulations 1997.  The Act was amended so as to include a new section 32B the effect of which is that if (apart from the section) the Commonwealth does not have power to make, vary or administer an arrangement under which public money is payable by the Commonwealth or a grant of financial assistance, but the arrangement or grant is specified in the regulations (individually or by reference to a class of such arrangements or grants) then the Commonwealth has the power to make, vary or administer the arrangement or grant.  The Regulations were amended so as to specify hundreds of Commonwealth funding programs that were in jeopardy as a result of the decision in Williams (No1), including the schools chaplaincy program.

A number of important issues fall for determination.  The first is the correctness of Williams (No 1) itself.  As will be recalled from my earlier post, the argument that succeeded in the first round was one that arose for the first time during the course of argument, and with limited opportunity for the Commonwealth to respond.  The composition of the Bench has changed (Gummow and Heydon JJ having retired), and one of their replacements (Gageler J) was the Commonwealth Solicitor General at the time and has recused himself from sitting.  The current Solicitor General will face an uphill battle and, if the terse language of the Commonwealth’s written submissions are anything to go by, one hopes he is fully armoured.  The second issue of significance relates to the invalidity of section 32B, essentially on the basis of its breadth and its conferral of discretion (through the regulation-making power) on the Commonwealth Executive to spend money on anything, whether or not it fall within one of the Commonwealth’s enumerated heads of responsibility.  The third issue of significance is the question of whether or not spending on the school chaplaincy program falls within a relevant head of Commonwealth legislative power (in particular placitum 51(xxiiiA)).

Ending the week the High Court will hear Plaintiff S156/2013 v Minister for Immigration and Border Protection, a challenge to the amendments to the Migration Act 1958 purporting to authorise the removal of Unauthorised Maritime Arrivals to designated regional processing countries (ie Nauru and Papua New Guinea).  The plaintiff challenges the amendments on a number of different rounds. One is that the amendments do not fall within the aliens power in the Constitution, because they are not an appropriate and adapted means to the legitimate ends of the aliens power, being the regulation of entry into and removal from Australia of aliens.  This raises an interesting constitutional question about the extent to which (if any) proportionality is relevant to the proper characterisation of a law as falling within a non-purposive power.  They are further challenged on the basis that they exceed the implied limits on Commonwealth legislative power to detain.  Removed persons are in practical terms subject to detention administered by the Commonwealth, with no temporal limitation and with no requirement that they in fact be processed to determine their status as refugees.  The plaintiff also seeks to challenge, by way of judicial review under section 75(v), the designation of Papua New Guinea as a regional processing country.