Australian High Court Research Articles

Subjective or Objective Legislative Intention: An Australian/German Perspective

Abstract ‘Legislative intention’ as the aim of statutory interpretation has attracted increased attention in the Australian High Court, reinvigorating scholarly attention on the elusive concept. A subjective approach regards it as having an empirical reality. The competing objective view denies any conceptual connection to empirical circumstances and demotes it to a metaphor for the proper application of rules of statutory interpretation. This antagonism prevails in civil law jurisdictions as well. In Germany specifically, it goes back to the 1830s. The article juxtaposes the two local debates so as to mutually provide an additional perspective on the subject matter that can inspire future cross-system discourse. It highlights how similar arguments from both theoretical camps have formed in the two countries over time. And it not only documents striking similarities in how Australia’s and Germany’s highest courts declared commitment to an objective approach but it also reveals contrary curial trends that have most recently emerged.

Institutional Design and the Predictability of Judicial Interruptions at Oral Argument

Abstract Examining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and apply.

The role of theory in empirical legal studies

The growing field of empirical legal studies is not an alternative to theory: within every empirical inquiry is an implicit formal theoretical model. Further, good empirical tests should be inspired by substantive theories of the phenomena being analysed. This article explains how theory is built into all empirical testing and illustrates why empirical tests are best informed by well-developed theories. It uses examples of empirical studies of both US Supreme Court and Australian High Court oral arguments to illustrate how these issues apply to the central issues at the intersection of empirical legal studies and constitutional law: the role of judicial ideology and strategy, and predicting judicial behaviour. The article explores common errors in both conducting and consuming empirical work, and presents some solutions, including both methodological fixes and how to draw on substantive expertise. It aims to help the non-technical reader understand when counterintuitive results should be queried and when, in contrast, resistance is more reflective of priors of the reader rather than potential weaknesses of the work. And it acts as a reminder to technical readers and empirical practitioners that theory is built into every empirical test, and so must be taken seriously.

Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia

Abstract This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel dataset over twenty-six years (1995–2019), comprising nearly one million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable Western liberal democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences between the Australian context and the U.S. Supreme Court, including a Chief Justice with additional power at oral argument, unlimited time for the length of argument, and variable panel sizes. Nevertheless, the Article finds evidence of similar patterns between Australian High Court and U.S. Supreme Court Justices. Importantly, this includes engaging in judicial advocacy on behalf of the side of the case that they ultimately support, contradicting the jurisprudential orthodoxy that the Australian judiciary is apolitical. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience. This suggests that while striking institutional differences can impact oral argument and make arguments look very different, we can nonetheless discern similar underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional”—judicial advocacy may simply be part and parcel of having a strong independent judiciary.

Skeletons in the cupboard: reading settler anxiety in Mabo and Love

ABSTRACT Thirty years apart, Justices Brennan and Kiefel in the Australian High Court made deeply anxious remarks to define Indigenous identity and assert the power of the Court over Indigenous subjects and subjecthood in the Mabo and Love judgments. The notion that the breadth and depth of the Colonial legal system in Australia in 1992 was so frail as to break its skeleton is a form of gaslighting. Equally, the notion that in 2020 connection to Country is so fragmentable that it can mean one thing in Native Title and another in immigration manipulates an Indigenous notion of Country to fit the mould of settler power. This article analyses the judgments by considering the tone of settler anxiety and finds that in both judgments there remains a sinister logic of seeking to contain Indigenous identity and sovereignty.

Competing visions of ‘the people’ in Australia: First Nations and the state

In 2020 the Australian High Court decided the case of Love v. Commonwealth; Thoms v. Commonwealth, a claim of constitutional belonging by two Aboriginal men. The Court was fractured in its reasoning and conclusion, a majority deciding that ‘Aboriginal Australians’ cannot be aliens. The case sits within a longer and ongoing story regarding the interaction between First Nations peoples and the Australian settler colonial state. The reasoning of the Love/Thoms case reveals two contrasting visions of the constitutional identity of ‘the people’ – one being a plural and diverse conception potentially capable of accommodating a distinct identity of First Nations peoples, the other being a unified conception dominated by formal equality and democratic participation. A study of the Love/Thoms case in its context also speaks to broader questions of constitutional identity. First, that constitutional identity is constructed through the interaction of multiple actors. It is through an ongoing dialogic between constitutional actors that constitutional identity evolves over time. Second, that there is a relationship between the identity of ‘the people’ and of their Constitution. A study of the construction of the constitutional identity of ‘the people’ in this case reveals principal characteristics of the Australian state’s constitutionalism: going to institutional and substantive questions regarding the respective roles of the people and the Courts, equality and sovereignty.

‘Mind-forg’d Manacles’: Virtual Experience and Innocent Publication

In Fairfax Media Publications Pty Ltd v Voller (‘Voller’) the Australian High Court held that media companies maintaining Facebook comment pages could be liable for the defamatory posts of commenters on those sites. The decision focussed entirely on whether, by maintaining the Facebook page, the companies had ‘published’ the statements of commenters. Hearings on other aspects of the tort litigation continue. This paper considers the implications of the tort of defamation on public participation on political will formation where, as is increasingly the case, the participation occurs virtually. Australian law has already tackled the law of defamation as a threat to freedom of political communication; Voller continues the jurisprudence by considering whether hosting an online forum for debate amounts to publication. The more recent High Court judgment in Google LLC v Defteros demonstrated the necessity of the law to align the ‘acts’ necessary to found legal action with the new environment of automated search engines. The troubled intersection of dematerialised practices of political and cultural discourse and jurisdictionally bound laws of defamation challenges participatory governance as tribes form and dissolve and shift between geographical interests.Defamation in Australia is a tort of strict liability; and, absenting applicable defences, any participation in communication is sufficient to make that participant a publisher and a party to the defamation. The online environment stretches words across geographical and jurisdictional boundaries, but it also stretches and contorts concepts of fault and responsibility. Participatory digital cultural practices integrating users in the creation of cultural heritage simultaneously draw participants into transgressions, both cultural and legal, which are amplified by the medium. Questions of collective guilt, ‘shades’ of moral responsibility and disproportionality between blameworthiness and legal liability challenge laws formulated for the printing press but now deployed in the online environment. In this way the digitized participatory environment presents deep challenges to law and legal systems, which are chained to geography. This paper considers the concept of innocent publication in the context of the digitized participatory environment and the way in which the virtual experience is dissolving concepts of geographically defined jurisdictions.

The Kirby Institute—ending HIV transmission in Australia

Australia has consistently seen lower rates of HIV infection and mortality than most countries in the world, and in no small part is that due to the work of the Kirby Institute, part of The University of New South Wales, Australia. For 25 years, from 1986 to 2011, the Institute was known as the National Centre in HIV Epidemiology and Clinical Research, before being renamed after retired Australian High Court Justice Michael Kirby, a champion of health and human rights and the HIV response.

Judicial Ideology in the Absence of Rights

AbstractResearch on judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior outside of rights-based issues. This study explores the predictive effect of judicial ideology on judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology and use original data on every Australian High Court decision between 1995 and 2019 to test whether, and in which types of cases, votes of Australia’s justices align with their ideology. The results show that ex ante ideology is predictive of voting behavior, regardless of policy area.

Metaphoric Sovereignty and the Australian Settler Colonial State

There is a pronounced anxiety within Australian jurisprudence at the use of metaphor in the creation of the law. This essay argues that the anxiety is symptomatic of the fact that metaphor is not only the source of Australian law, but the source of this law’s very (il)legitimacy. To develop this argument the first half of the essay focuses on Australian High Court cases that have addressed the use of metaphor in the creation of the law. Here the essay draws out two observations. The first is the Court’s prohibition against metaphorical legal reasoning; the second is the fact that metaphor is nonetheless the source of Australian law. This picks up on Justice Kirby’s observation, that British law was extended over Australia based on a claim to ‘occupy’ and ‘possess’ a continent upon which the British had barely set foot. The essay argues that these two observations are connected: the Court’s repudiation of metaphorical legal reasoning cannot be understood separately from the role that metaphor played in the violent foundation of Australian law. The second part of the essay is an attempt to think more carefully about how metaphor, and the metaphor of the body, has shaped and substantiated colonial sovereignty, and how this contrasts and interacts with First Nations’ sovereignty. The focus here is on a public festival held in 1850 to inaugurate the Colony of Victoria. The festival involved a public performance in which the colonists gave expression to their fantasy of being the rightful sovereign of the land, while including First Nations within it, as a constitutive part of the colonial body politic. But the festival also highlights the failure of the colonial effort to extinguish First Nation sovereignty through their inclusion. While colonial sovereignty is metaphorical, First Nations’ sovereignty is ontological – resulting in a state in which Aboriginal and Torres Strait Islander peoples are both a constitutive part of the Australian body politic and sovereign First Nations.

Comment on Michael Kirby, 'India & Australia: A Neglected Legal Relationship and a Plan for Action'

Has much changed more than two decades after former Australian High Court Justice Michael Kirby AC CMG proposed his nine-point plan of action to solidify the legal relationship between India and Australia? This piece traces the evolution of that relationship from the time Kirby first envisioned a mutually beneficial legal partnership to the transformed landscape of the present day. After placing Kirby at the centre of initial efforts to reinvigorate the 'neglected relationship', this piece offers a structured explanation of how the association between India and Australia has progressed over the years. It presents a picture of how contemporary global politics, trade-driven cooperation and the emergence of parochial nationalism has impacted the course of interactions between the two countries. It concludes by re-emphasising Kirby's call for closer interaction between India and Australia, and the importance of intercultural learning in building a truly cooperative global community.

The 2018 Australian High Court Constitutional Term: Placing the Court in Its Inter-Institutional Context

Drawing on the scholarly commentariat tradition now practised across the world, this article provides an overview and analysis of the 2018 Australian High Court’s constitutional term. However, this article approaches this task through a slightly different lens: I consider the 2018 developments by reference to their inter-institutional context. That is, how the High Court’s jurisdictional and doctrinal developments do and should impact the jurisdiction and behaviour of the other branches of government, and in the context of constitutional judicial review, particularly the Australian parliaments. In the article, I consider the High Court’s 2018 constitutional jurisprudence in three areas of law, and how its decisions have and should impact the constitutional responsibilities and practice of parliaments. Placing the High Court’s term in this inter-institutional context will give a better sense of the reach of the impact of the Court’s jurisprudential developments, as well as serve as a reminder that constitutional responsibility will not always lie with the courts for the articulation and prioritisation of constitutional principle.

The Potential Impact of Indigenous Rights on the International Law of Nationality

International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.

Double Taxation Treaty Interpretation: Lessons from a Case Down Under

In the Australian case of Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation (the Bywater case) the Australian High Court dealt with the question of whether certain companies were resident in Australia for income tax purposes. The majority answered this question by applying Australian domestic law. In a separate but concurring judgement, Gordon J also discussed the interpretation and application of the relevant double taxation treaty. This contribution analyses Gordon J's judgment to extract guidance from it for the South African courts on their interpretation of double taxation treaties.
 It is submitted that South African courts should also follow the "first step" proposed by Gordon J when interpreting double taxation treaties. South African courts may find Gordon J's judgment "instructive" when dealing with the interpretation of the "place of effective management" concept in both domestic law and double taxation treaties. In his judgment Gordon J favours the goal of common interpretation and it is argued that South African courts should follow this example and explicitly support this notion in applicable cases. From Gordon J's judgment and the judgement in Krok v Commissioner, South African Revenue Service, it is deduced that the positions in South Africa and Australia are similar in that the courts in both countries will be bound by the principles of Articles 31 and 32 of the Vienna Convention on the Law of Treaties when interpreting double taxation treaties. Moreover, Gordon J's judgment indicates that the domestic principles of interpretation should not be used in the interpretation of double taxation treaties. Recent South African cases have suggested that there are no differences between the South African domestic principles of interpretation and those contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. This contribution submits that there are many similarities between the two, but that the rules are not exactly the same. South African courts should be aware of these differences and rather apply the rules of public international law, including those contained in the Vienna Convention on the Law of Treaties, when they interpret double taxation treaties. Gordon J specifically identifies the category of the Vienna Convention on the Law of Treaties in which he places the Commentary on the OECD Model Tax Convention, to rely on it for his interpretation of the relevant double taxation treaty. South African courts may well learn from this approach, to create more certainty in the process of interpreting a double taxation treaty.

Judicial Ideology in the Absence of Rights: Evidence from Australia

This article investigates whether apex court judges behave ideologically in cases not involving civil, political, or economic rights. Research on comparative judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior is outside of rights-based issues. The study contributes to existing research by exploring the predictive effect of judicial ideology on the entire corpus of judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology based and uses original data on every decision by Australian High Court Justices between 1995 and 2018 to test whether, and in which types of cases, the votes of Australia’s apex court judges align with their ideology. The results show a strong relationship between ideology and voting behavior, regardless of policy area, suggesting that judicial policy preferences will inevitably find an outlet, even in the absence of authority over rights.

Remedying Misaligned Norms in International and Constitutional Law: Investment Treaties, Property Rights and Proportionality

The enlargement of the scope of international law has led to more frequent overlaps in the substantive rules of domestic and international law. One such overlap is in the rules on expropriation, or the protection of property rights. This article argues that Australian constitutional law and international law are misaligned on the question of expropriation, with international law generally imposing a higher standard of protection compared to the Australian Constitution. The article contends that this misalignment matters, because it is irrational and discriminatory, and because it hinders Australia’s compliance with international law by increasing the complexity of official decision-making. The article then considers whether and how the misalignment can be remedied. Although a deliberate re-alignment faces difficulties, the article concludes that a form of alignment may organically emerge for other reasons, as both international tribunals and the Australian High Court take tentative steps towards the use of proportionality to resolve property rights claims.

The Common Law and Equity: Are England and Australia a World Apart?

When decisions are made in the High Court of Australia in the areas of common law and equity, lawyers in England often cast their eyes over the decisions in Australia to consider in which direction those in the former colonies are taking the laws bequeathed to them, or received by them, depending on one's perspective. There was little divergence until relatively lately as the Australian High Court felt obligated to be bound by the decisions of the House of Lords until 1963 and the Privy Council until 1978. Yet, there remains in England an expectation that Australia should continue to follow the example of the mother country, perhaps to keep the common law as much as possible, common. It is argued that it is unrealistic to keep looking at what Australia does as somehow not following the example of England as lead in areas of law that it developed over nearly a millennium. Will it hurt the common law and equity to have strong separate traditions reflecting matters that are uniquely Australian? Can Australia be left to have the ability to be diametrically opposite if it wishes to be, inasmuch as it is antipodean geographically, without some feeling it has let the 'team' down?

The High Court and Constitutional Identity – the 2019/2020 term

What do we learn about Australian Constitutional Identity from the Australian High Court? This paper teases out three elements of Australian constitutional law seen in the decisions of 2019 that tell us something about who we are, how we distinguish the role of our High Court from what other institutions of power do within our system and what we value under the Constitution. Specifically, who are ‘the people’ under the Constitution and how does the Court understand that concept of ‘the people’; how does the Court explain its distinct role under the Constitution and the distinction between the courts and the political branches of government and what values affect the reasoning of the Court? Finally, this paper focuses on the controversial decision of Love decided in February 2020 to explain the deep divides between the majority and dissenting reasons, which map onto the issues found in the 2019 cases and which indicate constitutional values that are as yet unsettled.

Comparing the institutional constructive trust with the remedial constructive trust

Abstract The concept of the Institutional Constructive Trust was first recognised in Australia in 1907 by the most senior court, i.e. the High Court of Australia, in Black v S Friedman & Co. This arose in a decision involving stolen funds. Its importance was addressed in the State of Victoria in Nolan v Nolan where what was in issue involved the Limitations Act of the State of Victoria. It must be appreciated that in the Commonwealth of Australia, State Acts can, and sometimes do, differ. In 1985, in Muschinski v Dodds, Deane J of the Australian High Court placed different emphasis on the court’s ability to recognise and construe such a trust and gave it the imprimatur of “Remedial Constructive Trust”. The latter, whilst adopted in New Zealand and Canada, has had what might fairly be described as its critics in the UK and, indeed the UK Supreme Court in FHR European Venture LLP v Cedar Capital Partners LLC has stated at [47] that the remedial constructive trust is not part of the law of the UK.

The trustee’s lien and the law of insolvency: the Twain Meet in the Australian High Court: a comment on Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth

The trustee’s lien and the law of insolvency: the Twain Meet in the Australian High Court: a comment on Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth