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Common(wealth) Knowledge #76: High Court farewells its first female Chief Justice

Final High Court judgments involving Chief Justice Susan Kiefel have been handed down.

With Chief Justice Susan Kiefel retiring from the High Court on 5 November, her final four judgments have been handed down by the High Court as part of its farewell to the first female Chief Justice.

Keeping true to form, Kiefel CJ’s final judgments saw Her Honour write a joint judgment with other judges on the bench. In all four, she was joined by her incoming replacement, Justice Gageler.

Kiefel CJ’s leadership on the High Court, from 2016 to 2023, will be remembered for its focus on collaborative judgments, promoting unity among the judges. Joint judgments make it easier to understand the court's reasoning than seven judges issuing seven opinions with seven different reasoning.

So, in honour of Kiefel CJ, who has led the court for the entirety of this series’ existence, for one last time we will take a look at her four decisions.

Kwementyaye Young was an Aboriginal woman in the Northern Territory who was a resident in public housing provided by the Territory government. As a result, she was in a tenant-landlord relationship with the Territory, represented by the CEO of Housing.

Ms Young appeared before the Northern Territory Civil and Administrative Tribunal, arguing that the failure of the CEO to provide a back door, or any other way to exit the house than through the front door, violated a provision of the tenancy agreement, which required the CEO to take ‘reasonable measures’ to provide ‘security devices.’

Furthermore, Ms Young claimed that its failure to do so over a five-year period entitled her to compensation for ‘distress and disappointment.’

Kiefel CJ, ruling with Justices Gageler and Gleeson, held that Section 122(1) of the Residential Tenancies Act 1999 (NT) allowed the NTACT to hear the question put forward by Ms Young.

However, the three judges overruled the NTACT, for failing to classify secondary exits, like a back door, as a ‘security device.’

They also ruled against the CEO, deciding that contract law principles about the breach of contract applied here, and that because there was a direct connection between the breach of contract and the loss suffered by Ms Young, she was entitled to compensation from the Northern Territory.

Law firm Slater and Gordon are now investigating bringing a class action lawsuit against Western Australia because of this judgment.

In an article earlier this year, 6 News discussed a Victorian decision that opened up churches whose priests and ministers had allegedly committed sexual offences. Now, the High Court has ruled that the Diocese of Lismore can also be taken to court over child sexual abuse allegations when the alleged offences took place decades ago.

Many cases have ‘limitation periods’ that prevent actions from being brought after a certain number of years, but the Royal Commission into Institutional Responses to Childhood Sexual Offences saw all Australian jurisdictions abolish limitation periods for child abuse cases.

In New South Wales, this is Section 6A of the Limitation Act 1969 (NSW).

The exception to this is when there is an abuse of process. The NSW Court of Appeal agreed with the Diocese that this case, which was based on alleged offences from 1968, was an abuse of process, as the priest in question was dead.

However, Kiefel CJ, joined by Gageler and Jagot JJ, pointed out that the very reason why Section 6A was brought in was that most child sexual abuse cases were heard over two decades past the date of the alleged offence, even though witnesses or the alleged offender may be dead. These cases are also very traumatic for the supposed victims, which is one reason for the delay.

Abdul Nacer Benbrika was an Algerian-Australia dual citizen who was convicted over his participation in a terrorist organisation in 2008.

In 2020, the Minister for Home Affairs, Peter Dutton, stripped him of his Australian citizenship, under Section 36D of the Australian Citizenship Act 2007 (Cth). Section 36D allows for citizenship to be stripped because of a terrorism conviction.

Kiefel CJ, joined by Gageler, Gleeson and Jagot JJ, overturned the revocation of his citizenship.

Relying on a long history of High Court rulings, including the Boilermakers’ Case (1956), they ruled that revoking citizenship based on a criminal conviction alone is unconstitutional. Chapter III of the Australian Constitution creates a strict separation of powers that prevents the legislative and executive branches of government from using powers reserved for the judiciary, and vice versa.

Stripping citizenship this way was an attempt to usurp judicial powers, violating Chapter III, as it was a non-judicial punishment for committing a crime, so Section 36D was unconstitutional.

In contrast, this case saw the same 4 judges find Section 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth), which also allowed the Minister for Home Affairs to strip someone of their citizenship, to be lawful.

In this case, Phyllip Jones was stripped of his citizenship because of a criminal conviction.

Section 34(2)(b)(ii) relies on Section 51(xix) of the Australian Constitution, which deals with ‘naturalization and aliens.’ Naturalisation is when a citizen of another country becomes a citizen of Australia.

The key difference between this case and the previous one is the date of the offence.

Section 34(2)(b)(ii) allows for citizenship to be revoked when the offence was committed at least 12 months before that person gained citizenship.

At that time, they were an ‘alien,’ not a citizen. Because Section 51(xix) grants Parliament a specific power over naturalization and aliens, if the offence was committed while they were not a citizen, and thus the offender fell under the scope of this power, it cannot be seen as violating the strict separation of power.

In all four of these cases, the joint judgment that involved Kiefel CJ involved a majority of the judges who heard that case, so it is relatively easy to determine the reasoning behind the court’s ruling.

As the High Court enters a new chapter, many will be looking on to see if this trend will continue under Chief Justice Gageler.

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Jones v Commonwealth [2023] HCA 34.


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