It's the end of 2024, which means it's time for another ‘High Court cases we missed’ edition of Common(wealth) Knowledge.
Normally, this article covers 3 constitutional cases from the year. But this time, before moving on to 2 immigration and constitutional law cases from November and December, we’re going to take a look at a few other cases we wouldn’t normally cover.
Obian v The King: the court upheld Victorian legislation that allowed the prosecution to, having wrapped up their case, reopen it and introduce new evidence if the defendant brought evidence that was not “reasonably [to] have been foreseen by the prosecution.” This was not a ‘substantial miscarriage of justice’ because the prosecution must ask the judge for permission first.
Redland City Council v Kozik: Redland City Council unlawfully charged residents special rates for the maintenance and cleaning of waterways and rivers. The Council had a statutory obligation to do so, so could not charge special rates, and the residents received no actual benefit from the works.
Cessnock City Council v 123 259 932 Ltd Pty: A private aircraft company was given a contract to build a new aircraft hanger, spending over $3 million on it. The local government failed to register the subdivision, so the company’s money was wasted. The company was allowed to recover the wasted money.
This was a continuation of NZYQ v Minister for Immigration from last year, where the High Court unanimously ruled that the Australian government cannot indefinitely detain people in immigration detention; if there is no reasonable chance of them being deported, they cannot be held indefinitely.
After NZYQ, Parliament passed the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth). Individuals who were to be released until there was a reasonable chance of deportation were given a special visa, which imposed strict curfews and ankle monitors. YBFZ challenged that.
The joint judgment of Chief Justice Gageler and Justices Gordon, Gleeson and Jagot, with Justice Edelman concurring, found that this violated the separation of powers. These limitations were punitive, which is (generally) a power the judiciary can only use.
There was an eight-hour curfew, between 10pm and 6am, that required them to stay in one place. The High Court said that this limited a person to their own home or that of a loved one, which was an unacceptable infringement of “personal liberty.” This of course meant that, without special permission, they couldn’t travel very far during the day.
Australian courts have never liked ankle monitors. They are a form of trespass (trespass to the person), which is a common law right. It should not be infringed lightly.
Ankle monitors are a “degradation of autonomy” and create social isolation, which in turn creates mental health issues.
They rejected the government’s justification of “protection of any part of the Australian community,” ruling that it “does not identify the nature, degree, or extent of the harm sought to be protected against.” It was far too broad for the court’s liking, as for a breach of the separation of powers to have any chance at lawfulness, it needs to be very narrow and targeted.
Finally, the fact that they had to appeal to the Minister for an exception, and the standard that the Minister must be “satisfied that it is not reasonably necessary” creates a presumption of guilt, which is a further breach of the rule of law.
The Australian government had effectively replaced one form of punishment with another.
The author would like to point out that last year he predicted that if any judge would dissent in NZYQ it would be Justice Steward. He was wrong there, but was right here. Justices Steward and Beech-Jones gave separate dissenting judgments
In this series of cases, the High Court overturned several decisions by the Federal Court that sought to limit the government’s power to strip visa holders of their visas if they committed criminal offences.
Under the Migration Act 1958 (Cth), a non-citizen is automatically stripped of their visa if they are “sentenced to a term of imprisonment of 12 months or more.” Without a visa, they are an unlawful resident, and so can be taken into immigration detention pending deportation. They can appeal to the Minister for Immigration for reinstatement of their visa.
The Federal Court narrowed the scope of that power by saying that ‘a’ is singular. An ‘aggregate sentence,’ where a person is given one bulk sentence for multiple offences doesn’t count as a singular term, if none of those offences have a maximum sentence of 12 months.
Criminals serving multiple sentences that add up to 12 months are covered separately.
The High Court unanimously rejected that argument. Firstly, they pointed to the Acts Interpretation Act 1901 (Cth), which says that absent anything to the contrary, a singular word is also taken to mean its plural form.
The court also held that the purpose of this provision is about offenders with a “substantial criminal record.” It’s about the seriousness of the offences, not their length. The length just reflects the seriousness of the offence.
Pearson herself was given a single aggregate sentence of 4 years and 3 months for 10 offences. The court said that she shouldn’t be allowed to avoid the legislation just because the judge didn’t decide to give individual sentences for each of the 10 offences (if the judge did, it would be valid because of the other provision about multiple sentences adding up to 12 months).
An additional case was brought challenging the power of the executive to consider a sentence set by the judiciary, in the same vein as NZYQ. Given the above, the court found this unnecessary to answer.
Still to come next year is the High Court appeal of Commonwealth v Yunupingu (2023), a native title and territory rights case that we mentioned this time last year, and which is still awaiting a verdict.
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