Further High Court judgments to be delivered this week

The High Court has now listed a further case for delivery of judgment this week, so the (now) three judgments to be delivered are as follows:

On Wednesday, 7 March 2012 at 10:15am is the decision in Strong v Woolworths Ltd.  This is either an important case about the law of causation in negligence cases following the enactment of the Civil Liability Act 2002, or a mundane fizzer about what inferences can be drawn as to whether or not an adequate cleaning system would have prevented the plaintiff’s crutches from slipping on a potato chip on the floor of a shopping centre.  

On Thursday, 8 March 2012 at 10am is the decision in ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue.  This case was only heard a few weeks ago, and addresses issues relating to the operation of the NSW Duties Act 1997, and whether or not a Deed of Consent an Assignment constituted an assignment of the benefit of a contract for the sale of land, or a novation of that contract.

On Thursday at 2:15pm is the decision in Equuscorp Pty Ltd (formerly Equus Financial Services Ltd) v. Haxton, in which the consequences of a failure to comply with the prescribed investment scheme requirements of the old Companies Code.  All you crazy restitution enthusiasts may be in for a little treat.

New identification requirements for affidavits and statutory declarations

The Identification Legislation Amendment Act 2011 (NSW) amends the Oaths Act 1900 (NSW) to require a witness to identify a deponent prior to witnessing an affidavit, and to certify on the affidavit that this has occurred. These requirements commence on 30 April 2012.  In this post, references to sections are to the Oaths Act 1900 as amended, and references to regulations are to the Oaths Regulation 2011.  Although couched in terms of affidavits, the same requirements apply in relation to statutory declarations.

A witness must either “know” the person who makes an affidavit or confirm their identity by sighting an identification document before witnessing the affidavit: section 34(1)(b). A person is deemed not to be known to a witness unless the witness has “known” the deponent for a period of at least 12 months: regulation 5.

The words “know” and “known” are not defined in the legislation.  However, analogous caselaw indicates that the degree of familiarity to satisfy the test for knowledge need only be slight and need not be based on a pre-existing personal acquaintance with the deponent (see, for example, Ratcliffe v Watters (1969) 89 WN (Pt 1) (NSW) 497 and Grgic v ANZ Banking Group (1994) 33 NSWLR 202).  Regardless, a prudent approach would be for a witness to require identification if there is any doubt as to whether they have “known” the deponent for a period of at least 12 months.

If an identification document is required, it must be one prescribed by the regulations: section 34(1)(b).  The following are acceptable forms of identification documents (what follows is a combination of the provisions of the Oaths Regulation 2011, and incorporated provisions of the Real Property Regulation 2008):

Australian passports: an Australian passport that is either current or has been expired for less than 2 years.

Non-Australian passports: a current passport issued by a foreign government or the UN for the purposes of international travel that contains a photograph and the signature of the person in whose name the document is issued.

Driver’s licences: a current licence or permit issued under a law of a State or Territory or equivalent authority of a foreign country for the purpose of driving a vehicle that contains a photograph of the person in whose name the licence or permit is issued.

Entitlement cards: current Medicare cards, pensioner concession cards, Department of Veterans’ Affairs entitlement cards or other entitlement cards issued by the Commonwealth or a State Government.

Photo cards or national identity cards as follows:

a Photo Card issued under the Photo Card Act 2005 (NSW);

a card issued under a law of the Commonwealth or another State or Territory for the purpose of proving the person’s age which contains a photograph of the person in whose name the card is issued; or

a national identity card issued for the purpose of identification that is issued by a foreign government, the United Nations or an agency of the United Nations and contains a photograph and the signature of the person in whose name the document is issued. 

Birth certificates and citizenship certificates as follows:

a birth certificate or birth extract issued by a State or Territory;

a birth certificate issued by a foreign government, the United Nations or an agency of the United Nations;

a citizenship certificate issued by the Commonwealth or by a foreign government.

Credit card or account passbook from a bank, building society or credit union (or a credit card or statement of account less than 1 year old).

Electoral enrolment card that is less than 2 years old.

Student identity card, or a certificate or statement of enrolment, from an educational institution that is less than 2 years old.

Except in the case of a Driver’s Licence, a document in a language other than English, must be accompanied by a document purporting to contain an English translation of the document.

In every case the identification document sighted must be the original document or a certified copy (which may only be certified by someone authorised to take and receive statutory declarations, and may not be the authorised witness), and must not have been cancelled or expired (other than an Australia Passport which may be up to 2 years past expiry).

Where verification of identity is required this must be done before the affidavit is witnessed: regulation 6(1).

You must see the face of the deponent making the affidavit: section 34(1)(a).  In this context “face” is defined to be the deponent’s face from the top of the forehead to the bottom of the chin and between (but not including) the ears (section 3 of the Law Enforcement (Powers and Responsibilities) Act 2002).

If the deponent has a “face covering” (which means “an item of clothing, helmet, mask or any other thing that is worn by a person and prevents the person’s face from being seen (whether wholly or partly)”) you may ask them to remove it.  Curiously, although you must not take and receive an affidavit if they do not remove a face covering, the failure to comply with the section does not affect the validity of the affidavit: section 34(4).

A witness is exempted from the requirement to see the person’s face if and only if the witness is satisfied that the deponent has a legitimate medical reason for not removing the face covering (this is the effect of the combination of regulations 3 and 4, and section 19B of the Law Enforcement (Powers and Responsibilities) Act 2002).

The affidavit must include a certificate that certifies the following:

• that the authorised witness either saw the face of the person, or did not see the face of the person because of a face covering, but is satisfied that the person had a special justification for not removing the covering;
• that the authorised witness either knows the person, or does not know the person, but has confirmed the person’s identity based on an identification document presented to the authorised witness;
• if the authorised witness has relied on an identification document to confirm the identity of the person—that the document that the authorised witness relied on is the document that is specified by the authorised witness in the certificate.

Finally, a big shout-out for the brains behind highheelsdaily.com for his assistance in the preparation of this post (follow on Twitter @highheelsdaily).

Next week in the High Court of Australia

Next week the High Court will deliver judgments in two cases in which it is currently reserved.

The first, to be delivered on Wednesday, 7 March 2012 is the decision in Strong v Woolworths Ltd.  This is either an important case about the law of causation in negligence cases following the enactment of the Civil Liability Act 2002, or a mundane fizzer about what inferences can be drawn as to whether or not an adequate cleaning system would have prevented the plaintiff’s crutches from slipping on a potato chip on the floor of a shopping centre.  

The second, to be delivered on Thursday, 8 March 2012 is the decision in ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue.  This case was only heard a few weeks ago, and addresses issues relating to the operation of the NSW Duties Act 1997, and whether or not a Deed of Consent an Assignment constituted an assignment of the benefit of a contract for the sale of land, or a novation of that contract.

Argument next week commences on Monday, 5 March 2012 with the further submissions in Harbour Radio Pty Ltd v Trad, which was adjourned after the original estimate proved to be insufficient.

On Tuesday and Wednesday, 6 and 7 March 2012 the Court will hear argument in a series of related cases that will either be reported as National Competition Council v Hamersley Iron Pty Ltd or as Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal.  This case involves Part IIIA of the Competition and Consumer Act 2010.  Part IIIA provides a regime whereby certain pieces of privately-owned infrastructure that cannot be economically duplicated can be “declared”, with the consequence that they must be made available for use by competitors. Upon an application by Fortescue Metals Group, privately-owned railway facilities in the Pilbara used by Hamersley Iron and Robe River Mining to transport iron ore were declared for a period of 20 years.  At issue in this appeal is which of two different methods (the “social cost approach” or the “private profitability approach”) should be used in determining whether or not “it would be uneconomical for anyone to develop another facility”.

Finally, on Thursday 8 March 2012, R v Getachew raises for consideration the burden of proof in relation to the mental element for the offence of rape where the complainant was asleep at the time of penetration, and the evidence is silent as to whether or not the accused knew the complainant was asleep, ought to have known the complainant was asleep, or thought the complainant was awake.

Reflections on Wotton v Queensland

Earlier today I posted a summary of the High Court’s decision in Wotton v Queensland in which the High Court upheld provisions of the Queensland Corrective Services Act that made it an offence to obtain an interview from a prisoner without the written approval of the chief executive officer of the Department of Corrective Services, and authorised the imposition of conditions upon a parolee, which conditions in the case of Mr Wotton also restricted his ability to speak to the media about matters which, it was accepted, related to political and governmental affairs.

Co-incidentally, today a journalist was charged with contravening a similar provision in the NT following an interview with Bradley Murdoch (convicted of murdering Peter Falconio) conducted without the necessary approval.

Through the course of the day following further reflection and discussions with various people about the case, and reports of the case in the media, it is apparent there are a number of unfortunate aspects about the case.

To begin with, there is something unsatisfactory about the way the case reached the High Court.  The adoption of the Special Case procedure enabled the High Court to rule on the constitutionality of the legislative provisions, and leave to one side whether the powers being exercised could properly be exercised consistently with the constitutional freedom of communication.  This arose in two ways. 

Firstly, in respect of the interview offence, the Court was able to say that that provision was valid because it was always open to obtain the written approval of the chief executive officer.  For the purposes of the Special Case, no such application for approval had been made and refused, and the High Court was therefore not required to rule on whether any such refusal would itself have amounted to an impermissible burden on Mr Wotton’s freedom of political communication.  This is an issue that would be addressed separately, by way of judicial review of the chief executive officer’s decision, if such an application were made and refused.

Secondly, in respect of the parole conditions imposed, the challenge was to the validity of the legislation which authorised the imposition of parole conditions, and not to the parole conditions themselves.  Again, the High Court considered that this gave rise to a question of constitutionality of the provision, and not whether the conditions themselves impermissibly burdened the freedom of political communication. Again, this is an issue that would arise in the context of a challenge to the validity of the parole orders on administrative law grounds, not on constitutional grounds.

Another unsatisfactory aspect of the decision appears in the judgment of Kiefel J, who goes some way towards providing a justification for refusing to permit interviews and imposing conditions upon the parole restricting access to the media.  Her Honour notes that there might be some utility in terms of maintaining discipline in preventing prisoners becoming figureheads in the prison population as a result of their media profile.  An illustration of this is provided in the US Supreme Court case of Pell v Procunier.  However, this teaser aside, there is no discussion of the extent to which such conditions could appropriately serve a legitimate end in respect of parolees.  Nor is there any discussion of what factors might legitimately be called in aid by the State of Queensland to justify the particular conditions imposed upon Mr Wotton.

Apart from what can be gleaned from Kiefel J’s judgment, there is nothing in the judgment that provides any guidance as to whether or not the particular conditions imposed upon Mr Wotton do or do not impermissibly burden his freedom of political communication, and if so (or if not) why?

Wotton v Queensland

The High Court this morning delivered judgment in Wotton v Queensland in which a prisoner sought to challenge certain conditions imposed upon him as a parolee, as being impermissible burdens on his freedom of political communication.

Mr Wotton is an Aboriginal person, born on Palm Island, and who has been an active participant in public life in Palm Island and a leader in the Palm Island Aboriginal community.  He has been, and wishes to continue to be, an active participant in public discussion on political and social issues affecting Aboriginal persons on Palm Island, and more generally throughout Australia.  He also wishes to participate in public discussion on issues relating to the prison system (about which he became aware during his incarceration).

In November 2008 Mr Wotton was sentenced to six years’ imprisonment for his part in the Palm Island Riots on 26 November 2004, which followed the controversial death of Mulrunji whilst in police custody the week before.  He was eligible for, and released on, parole in July 2010.  The Parole Board released Mr Wotton pursuant to an order made under section 200(2) of the Corrective Services Act 2006.  The parole order imposed a number of conditions on Mr Wotton, including that he:

• Not attend public meetings on Palm Island without the prior approval of the corrective services officer;
• Be prohibited from speaking to and having any interaction whatsoever with the media;
• Receive no direct or indirect payment or benefit to him, or through any members of his family, through any agent, through any spokesperson or through any person or entity negotiation or dealing on his behalf with the media.

The parole order imposed on Mr Wotton is due to expire on 18 July 2014.

By way of Special Case in the High Court of Australia, Mr Wotton seeks declarations to the effect that the relevant provisions of the Corrective Services Act 2006 (Qld) are invalid because they impermissibly burden, or authorise the imposition of parole orders that so burden, Mr Wotton’s freedom of communication about government and political matters contrary to the Commonwealth Constitution.  The challenged provisions included section 132(1)(a) which made it an offence in certain circumstances for a person to interview, or obtain a written or recorded statement from, a prisoner without the written approval of the chief executive of the Dept of Corrective Services.  Prisoner was defined to include a parolee such as Mr Wotton. 

In its judgment delivered on 29 February 2012, the High Court of Australia unanimously dismissed the challenge. 

The majority (French CJ, Gummow, Hayne, Crennan and Bell JJ, and Keifel J in separate reasons) held that the challenged sections of the Corrective Services Act 2006 effectively burden freedom of communication about government or political matters (a matter conceded by the Commonwealth intervening, but denied by the State of Queensland).  The relevant burden imposed by section 132(1)(a) is the obligation to seek and obtain the written approval under section 132(1)(d) of the chief executive to interview a parolee, such as Mr Wotton. The relevant burden imposed by section 200(2) is the observance of conditions the Parole Board reasonably considers necessary to ensure good conduct of the parolee and to stop the parolee committing an offence. 

Nonetheless, the majority held, the sections were reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government.  The legitimate end of section 132 (1)(a) was to be found in the statutory purposes set out in section 3(1) of the Act, which expresses the need to consider community protection and crime prevention through humane containment, supervision and rehabilitation of offenders.  It is not apparent from the plurality judgment how that end is in any way furthered by the restriction imposed by section 132(1)(a).  Keifel J however explains it by reference to the need to maintain order and discipline within the prison, something that may be compromised by public statements made by parolees upon release, which may have repercussions for other prisoners and the prison system.  Her Honour notes that in Pell v Procunier press attention to a small number of prisoners had resulted in them becoming “public figures” within the prison society, gaining a degree of notoriety and influence with other prisoners and becoming the source of severe disciplinary problems. 

Importantly, the Court noted that it would be incumbent upon the chief executive in exercising the power of approval under section 132(2)(d) to have regard to the restraint upon legislative power identified by Brennan J in Miller v TCN Channel Nine Pty Ltd  in the following terms:  “where a discretion, though granted in general terms, can lawfully be exercised only if certain limits are observed, the grant of the discretionary power is construed as confining the exercise of the discretion within those limits.”  There had not been an application under section 132(2)(d) in respect of Mr Wotton.  If there were such an application made, then the majority seems to e suggest that in determining that application the discretion will be limited so as not to impermissibly burden Mr Wotton’s freedom of political communication.

The legitimate end of section 200(2) was the imposition of conditions the Parole Board considers reasonably necessary to ensure good conduct to stop the parolee committing an offence.  The question of the validity of the parole orders therefore depended not upon the validity of section 200(2) itself, but on whether or not in imposing them the Parole Board had exceeded the power conferred by section 200(2).  That was not a question that arose in the proceedings.  The majority noted that if, on its proper construction, the statute complies with the constitutional limitation, any complaint respecting the exercise of power in any given case does not raise a constitutional question, but instead raises a question of the exercise of statutory power, which is capable of being challenged in separate judicial review proceedings.

Heydon J held that the provisions (and the parole order made under section 200) did not threaten his freedom of communication about political or governmental affairs:  a limitation on the place at which a communication may be made does not prevent the substance of what he wants to communicate from being communicated.  Similarly, a ban on payment for making communications about political or governmental matters does not prevent the making of unpaid communications about those matters.  And in relation to section 132, it does not burden communication because it prohibits only the obtaining by a third party, and not the publishing, of a statement by the prisoner.