The latest from the High Court: December 2017

Constitutional law

Appropriations – statutory construction

In Wilkie v the Commonwealth; Australian Marriage Equality v Cormann [2017] HCA 40 (28 September 2017), the High Court upheld the validity of the appropriation made to allow the Marriage Equality postal plebiscite to be carried out.

On 9 August 2017, the Finance Minister Matthias Cormann announced that the government would proceed with a postal plebiscite to ask electors whether the law should be changed to allow for same-sex marriage. The Minister also announced that he had made a determination, under s 10 of the Appropriation Act (No 1) 2017-2018 (Cth), providing for an advance of $122 million to go to the Australian Bureau of Statistics to conduct the plebiscite. On the same day, the Treasurer gave a direction to the Australian Statistician to collect the data from the plebiscite. The plaintiffs argued that the appropriation under s 10 was constitutionally invalid; that s 10 should not be construed to allow for the actions taken; that the Finance Minister’s Determination and the Direction to the Australian Statistician were invalid; and that the Australian Electoral Commission (‘AEC’) had no authority to assist in the plebiscite.

In relation to validity of the appropriation, the Court held that it was actually s 12 of the Act that made the appropriation. The Determination under s 10 is an allocation of funds already appropriated under s 12. The degree of specificity of purpose for the appropriation is a matter for the parliament. In this case, the appropriation was for an amount for a purpose that the parliament had lawfully decided could be carried out. In respect of the preconditions of s 10, it was required that the Minister be satisfied the expenditure was urgent, not provided for and unforeseen.

The Court held that it was not necessary for the need giving rise to the expenditure to arise from a source external to government. Further, whether expenditure was urgent and unforeseen was a matter for the Minister’s satisfaction. The Minister had formed the necessary satisfaction in this case. Urgency and whether the expenditure was unforeseen had been dealt with separately and sufficiently. There was no error of law in the Minister’s reasons or conclusion.

The Court further held that the direction to the Australian Statistician was valid, as the information to be collected was ‘statistical information’, collected in relation to matters prescribed in the Census and Statistics Regulation 2016 (Cth). There was nothing in the Act to prevent the Treasurer specifying from whom information was to be collected. Lastly, the Court held that the AEC was authorised to assist in the plebiscite.

The Court did not address arguments on standing as it was unnecessary and inappropriate given that the substance of the matter had been fully argued and the Court had decided the grounds had no substance. Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ jointly. Answers to Special Case given.

Criminal Law

Sentencing – current sentencing practices

In Director of Public Prosecutions v Charlie Dalgliesh (a pseudonym) [2017] HCA 41 (11 October 2017), the respondent was charged with incest and sexual penetration of a child under 16 against complainant A, and incest and indecent assault against complainant B. The respondent’s act of incest against A also caused her to fall pregnant, which pregnancy was later terminated. In respect of the charge of incest against complainant A, the respondent was sentenced to three and a half years imprisonment. The DPP appealed, arguing that the sentence was manifestly inadequate.

In the Court of Appeal, at the Court’s request, the parties made submissions on the adequacy of sentencing practices, to which the Court is required to have regard under the Sentencing Act 1991 (Vic). The Court reviewed the sentencing information and concluded that current sentencing practice did not reflect the gravity of the offence or moral culpability of the offender. However, the Court held that the sentence in this case, although very lenient, was not outside the permissible range as demonstrated by the current sentencing practices. The High Court held that the Court of Appeal was correct to find that the current sentencing practices were manifestly out of step with the gravity of offending and moral culpability. But having done so, the Court should have corrected the effect of the error of principle it recognised. Further, current sentencing practices are just one of the matters for the Court to take into consideration – it is not the controlling factor. Kiefel CJ, Bell and Keane JJ jointly; Gageler and Gordon JJ jointly agreeing. Appeal from the Court of Appeal (Vic) allowed.

Criminal law

Murder and manslaughter – intention and wilful acts

In Koani v The Queen [2017] HCA 42 (18 October 2017), the deceased was killed by a single shot from a shotgun that had been loaded by the appellant, given to the deceased and almost fully cocked. The gun was modified such that it could go off when not fully cocked. The trial judge did not leave murder to the jury because he considered that the ‘act’ causing death in a firearm case must be a deliberate act. The judge left the alternative case to the jury, namely that the accused would be guilty of murder if the accused failed to use reasonable care in the management of the gun at a time when he intended to kill or inflict grievous bodily harm. The appellant was found guilty.

The High Court held that it was an error to leave the alternative case to the jury, because the act causing death and the required intention must coincide. On the alternative case, the intention occurred at a different time to the omission (the failure to use reasonable care) that caused the deceased’s death. The Court also held that it would be open to a jury to conclude that the loading of the gun, presenting it and pulling back the hammer were all connected, willed acts that caused the deceased’s death. The primary case could have been left to the jury. Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ jointly. Appeal from the Court of Appeal (Qld) allowed.

Constitutional law

Implied freedom of political communication

In Brown v State of Tasmania [2017] HCA 43 (18 October 2017) the High Court held invalid sections of the Workplaces (Protection from Protesters) Act 2014 (Tas). The Act prohibited ‘protesters’ from engaging in conduct on ‘business premises’. Those premises relevantly included ‘forestry land’, including land on which ‘forestry operations’ were being carried out. The conduct was also prohibited in ‘business access areas’, being areas reasonably necessary to enter or exit business premises. Under the Act, police officers had power to direct people away from business premises or business access areas. It was an offence to return to the land after being directed away or not to comply with a direction to leave, in certain circumstances. Police had power to arrest or impose criminal penalties on persons who refused to leave such areas or who returned to such areas after being directed away.

Former Senator Bob Brown and others were protesting in the Lapoinya Forest in North West Tasmania when forestry operations were underway. They were arrested and charged under the Act, but charges were later dropped. They argued that provisions of the Act impermissibly burdened the freedom of political communication implied by the Constitution.

A majority of the High Court upheld that argument. Kiefel CJ, Bell and Keane JJ jointly held that the Act burdened the freedom. It also pursued a legitimate purpose, but the provisions were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government. They were therefore invalid. Gageler J, writing separately, took a different view of the test to be applied, but ultimately agreed in the orders of the majority. Nettle J, also writing separately, also agreed with the orders of the majority, but for separate reasons. Gordon J held that one of the impugned sections was invalid, but dissented in respect of the others found to be invalid by the majority. Edelman J dissented in respect of all the impugned sections. Questions to special case answered. Kiefel CJ, Bell, Gageler, Keane, Nettle, and Edelman JJ jointly. Appeal from the Court of Appeal (Vic) allowed.

Administrative law

Appeal from Supreme Court of Nauru – migration

In BRF038 v The Republic of Nauru [2017] HCA 44 (18 October 2017), the High Court held that the Supreme Court of Nauru failed to accord the appellant procedural fairness.

The appellant applied for refugee status in Nauru. The application was refused by the Secretary of the Department of Justice and Border Control of Nauru. An appeal to the Refugee Status Review Tribunal (‘RSRT’) was dismissed. An appeal to the Supreme Court was also dismissed. The appellant argued that the RSRT had erred by applying the wrong test for persecution, by requiring a total deprivation of human rights; and by failing to accord procedural fairness, by failing to put to him country information about the tribal make-up of the police force in his home country.

Procedurally, the High Court held that the Supreme Court was exercising original jurisdiction, meaning that an appeal to the High Court lay as of right. The Court rejected the wrong test argument, holding that the RSRT was not articulating an exhaustive test. However, the information about the police was integral to the reasons for refusing the application, and a failure to bring it to the appellant’s attention was a breach of procedural fairness. The decision was quashed and sent back to the RSRT for reconsideration. Keane, Nettle and Edelman JJ jointly. Appeal from the Supreme Court (Nauru) allowed.

Andrew Yuile is a barrister at Owen Dixon Chambers West in Melbourne.