High Court Of Australia Research Articles

An essay on jurisdiction, jurisprudence, and authority: the High Court of Australia in Yorta Yorta (2001)

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Irreducible Life Sentences, Craig Minogue and the Capacity of Human Rights Charters to Make a Difference

Certain commentators have recently doubted whether, as a normative matter, an irreducible life sentence will always breach an offender’s human rights. This article argues that it will. Such commentators ignore the fact that certain punishments are ‘inhuman or degrading’ however proportionate they are, and however much suffering they cause. After noting that there is a clear trend against irreducible life sentences in Europe, the article then contends that a comparison of the relevant European jurisprudence with some recent decisions of the High Court of Australia demonstrates that charters of rights can improve protections for prisoners against laws that objectify and exclude them. The Victorian government’s recent disapplication of its charter for the purposes of legislation that removes the possibility of parole from certain named prisoners, however, also indicates that, if future Australian charters are properly to protect prisoners’ rights, they might have to be designed differently from existing Australian charters.

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?

Open Justice, Efficient Justice and the Rule of Law: The Increasing Invisibility of Special Leave to Appeal Applications in the High Court of Australia

This article examines the application of the rule of law to special leave to appeal applications (‘SLAs’) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the Court. As an exercise of judicial power, SLA determinations have significant impact upon the parties to litigation and the development of substantive law. Presenting the findings of data analysis of the determination of SLAs in the High Court of Australia from 2013 to 2015, we identify the loss of publicly available information brought about by changes to the High Court Rules in 2016. Using this evidence, we argue that the current administration of SLAs preferences efficiency to the detriment of public confidence in the administration of justice. We suggest facilitating the rule of law through publication of the written submissions for SLAs.

Reconsidering Independent Advice: A Framework for Analysing Two-Party and Three-Party Cases

What is the significance of the receipt of independent advice by the plaintiff in a claim to set aside a transaction on the basis of a vitiating factor – such as duress, undue influence or unconscionable conduct? The generally held view has been that it is highly significant. Indeed, the receipt of advice has been understood as an answer to many such claims. The High Court of Australia’s decision in Thorne v Kennedy apparently changes this. Although that case concerned advice in relation to binding financial agreements under the Family Law Act 1975 (Cth), the decision has important implications across banking, commercial and other areas of practice. This article, then, offers a reanalysis of this question in light of this decision and other developments. The authors propose a new framework – based around two key questions – for conceptualising the function and significance of independent advice in a particular case. The article considers and develops this framework with regard to the main general law vitiating factors in both two-party and three-party cases.

Reversing History?: The Challenges of Using “MABO No. 2” as an Avatar for Resolving Indigenous Land Claims in Africa

The nexus between the indigenous African and the land on which they live cannot be gainsaid. So important is this relationship that land is a sine qua non for the survival of the indigenous African and indigenous African cultures. However, despite this undisputed link, the indigenous African as well as other colonized peoples, lost ownership of their lands due mainly to the adverse effects of subjugation. The direct upshot of this is that even where the former colonial masters and their successor states have become sympathetic to the indigenous populations and decide to retrocede some of their land, they often encounter obstacles both in law and in modern history that are not easy to avoid. This was also the case in some countries where indigenous peoples lost their lands to settlers who took over command and decided on their destiny, such as the indigenous peoples in Australia. It was in an attempt to put this issue to rest that the High Court of Australia in the locus classicus MABO No. 2 attempted to define the circumstances under which land can revert to the indigenous populations as a matter of human rights. This article examines some of the “hooks” that the apparently generous MABO No. 2 decision may present, where there is an attempt to transpose it mutatis mutandis as an avatar to resolve the problem of indigenous land rights in Africa. The paper attempts to answer the question as to what extent the decision of the High Court of Australia in MABO No. 2 can be used to resolve indigenous land claims in Africa. Through an analytical approach, the paper investigates the challenges inherent in attempting to use the decision as a South-South mutual inspiration due to the contextual, historical and evolutionary differences between the Australian and African situations. The paper finds out that the decision in MABO No. 2 carries in it the very germ of its inapplicability in the African context and makes suggestions on how to read the MABO decision in the context of the present-day dispensation of indigenous African land law.

Indigeneity as a basis for constitutional membership – recent developments in Australia

The case of Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3, decided in February 2020, centred on the Australian government’s attempt to deport two Aboriginal Australians who were statutory non-citizens. Australia’s highest appellate court, the High Court of Australia (‘the Court’), decided that Aboriginality, that is, indigeneity, is relevant to Australian constitutional membership. Aboriginality was defined with reference to a tripartite test requiring: descent, self-identification and community recognition. The foundation for the Love decision was the recognition of the connection to country of Aboriginal peoples, which the Court held had a constitutional relevance. The Court concluded that statutory citizenship did not determine constitutional membership. It held that the plaintiffs could be, and were, outside statutory membership but inside constitutional membership. Accordingly, they could not be deported notwithstanding that they were non-citizens.

Opening Remarks: International Association of Law Libraries Annual Course on International Law and Legal Information, Sydney, Australia, October 28, 2019

It is an honor to speak at the opening of this 38th Annual Course of the IALL. It was not difficult to accept the invitation to do so, not least because it was extended by Ms. Petal Kinder. Members of the IALL will know Petal because of her close involvement with the IALL as a Board member and as President; Petal was known to me as the Librarian of the High Court of Australia, a position she held when I joined the Court. She was highly valued and respected in that role, and popular amongst judges and staff. We were saddened to hear of her passing earlier this year.

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.

Coherence in the age of statutes

The High Court of Australia, in pursuing coherence between common law and statute law, has limited itself to ensuring that the rules of common law and statute law should be free of contradiction. The Court does not appear to have embraced the idea, which lies at the core of some major theories of private law, that a set of rules is coherent only if the set can be explained as the outworking of a single principle. Applying that idea to the relationship between common law and statute law is confronted by some serious challenges. In the past, coherence as non-contradiction (combined with the idea of parliamentary supremacy) has worked well as a means of reconciling common law with statute law, but the proliferation of legislation in recent years and the character of much modern legislation has drawn attention to the limitations of such an approach to the question. A more exacting approach to coherence of common law and statute law, on the other hand, would require the revision of some widely held assumptions about the nature of law, such as the core assumption of legal positivism that the ultimate criterion of the authority of the law is its pronouncement by an authoritative institution.

A Typology of Materiality

The question of when an error will be sufficiently “material” to justify the quashing of a tainted decision has prompted some discussion and debate on the High Court of Australia in two important recent cases: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34. This is a difficult issue, which causes conceptual confusion and obscures important underlying issues. By reference to material drawn from Australia, Canada, England, Ireland and New Zealand, I argue that there are three distinct types of materiality. First, materiality can be used to denote whether an error is sufficiently serious to count as jurisdictional. Second, materiality can be used to denote a causal link between the error complained of and the decision under review. Third, materiality can be used to denote judicial discretion to refuse relief. I suggest that distinguishing between these types facilitates clearer analysis and debate about the appropriate place of “material” error in judicial review of administrative action.

Citation as a measure of ‘impact’: Female legal academics at a disadvantage?

This article discusses whether the demand that law academics show citations by a superior court is disadvantageous to women, using the citations of academic work by the High Court of Australia from 2015, 2016 and 2017. The preliminary data show that male academics were cited much more often than female academics (even for works written after 1999), and academics who were cited were associated primarily with ‘elite’ universities in Australia, England and the United States. The use of citation by superior courts may not really show ‘impact’ but may rather indicate that the common law displays historical and unconscious biases.

All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia

In 2015, a majority of the High Court of Australia incorporated structured proportionality testing into Australian constitutional law for the first time, but the test’s suitability for Australian law has been contested ever since. The recent case of Clubb is an ambivalent result for the test’s advocates: while structured proportionality testing now seems to have the support of a solid majority of current members of the High Court, the dissentients seem as strongly opposed as ever and continue to be vocal about the test’s unsuitability for Australian law. This article surveys the three main criticisms levelled against structured proportionality in Australia: that it is too indeterminate, that it involves judges transgressing the separation of powers, and that it is inappropriate in the unique context of the implied freedom of political communication (‘the freedom’). There are reasons why these critiques of structured proportionality carry particular weight and resonance in Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But these reasons are also why adoption of structured proportionality is consistent with Australia’s constitutional commitments and jurisprudence. The question of whether structured proportionality is beneficial needs to start with the question of ‘ compared to what?’ Many of the criticisms levelled against structured proportionality apply all the more forcefully against the prior test of whether the legislative measure is ‘appropriate and adapted’ to serve a legitimate end. And the inherent commitments of proportionality make it better suited to Australian law than the increasingly proposed alternative of a categorical approach. The particular method of judicial reasoning in cases concerning the freedom might seem like a highly abstract and theoretical question, especially when the justices applying differing methods largely agree on the merits in the relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The project of making reasoning more transparent and constrained is significantly undermined by uncertainty as to whether and how the test will be applied at all. There are also second-order effects in the form of institutional costs. In the context of the freedom, where judicial review has long been controversial, the division of the Court into pro- and anti-structured proportionality factions has particularly high costs to institutional integrity and legitimacy. At some point there will be a question of whether the damage of warring judgments over method outweighs the damage done by choosing even the ‘worst’ of the available options. This article argues that structured proportionality is not that ‘worst’ option.

The Citation Practices of the High Court of Australia, 1905–2015

We provide an empirical study of the High Court’s citation to case law and secondary sources at decade intervals between 1905 and 2015. We document trends in the number and type of citations over time, both for the Court as a whole and for the individual Justices. We find that in each of the sample years between 1905 and 1975, the Court cited relatively few authorities and for most of this period the majority of citations were to the Court’s own previous decisions or to decisions of the English courts. However, over the last four sample years—1985, 1995, 2005 and 2015—the Court cited more authority. The Court cited an increasing proportion of its own previous decisions over this period as well as a higher proportion of authority from a more diverse range of sources, including secondary sources, largely at the expense of citations to English cases. We conclude that this reflects the emergence of a distinct Australian common law with the High Court as its final arbitrator.

Binding non-signatories to arbitration agreements—who are persons ‘claiming through or under’ a party?

Abstract The International Arbitration Acts of the UK, Australia, Singapore, and Hong Kong recognize that third persons who are non-signatories to an arbitration agreement but who are ‘claiming through or under’ a party to the arbitration agreement have the status of a party.1 In the UK and Singapore that status means not only that court proceedings involving such non-signatories may be stayed in favour of arbitration but it also binds them to an award. In Hong Kong that status binds non-signatories to an award. In Australia, that status affects whether court proceedings involving non-signatories are stayed in favour of arbitration. A recent judgment by a majority of Australia’s highest appeal court, the High Court of Australia, in Rinehart v Hancock Prospecting Pty Ltd2 has taken a different approach to that prevailing in England as to the range of persons who are capable of ‘claiming through or under’ a party to the arbitration agreement, thereby significantly expanding the range of disputes involving non-signatories that must be referred to arbitration.3 The issue has not arisen for determination before appellate courts in Singapore or Hong Kong. Rinehart therefore represents an important development in common law jurisdictions, compelling arbitration between a signatory and non-signatory to an arbitration agreement.

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

Abstract As with many things trust, the equitable rules defining a trustee’s right to an indemnity for acting as a trustee are shrouded in mystery. In particular, the issue of whether that right confers on the trustee an actual proprietary, in rem, beneficial, interest in the trust’s assets or merely an equitable right to access those assets to pay the trust’s debts in priority to the beneficiaries receiving them, has never been addressed by the highest court in any Commonwealth country. In a recent decision involving a priority claim by two creditors over the remaining surplus arising from the insolvency of a trading trust, the High Court of Australia, by a slim majority of 4-3, has held that the trustee does have a proprietary right to the trust’s assets. Joel Nitikman suggests that the majority’s reasoning and the jurisprudential basis on which it rests is either weak or ambiguous; the minority’s reasoning, to the effect that the trustee has only a preferential claim to the assets, is to be preferred.

Attempts to Create a Military Court for the Australian Defence Force

The 2005 Senate Report recommended the establishment of a permanent Chapter III court with jurisdiction to deal with serious military service offences. The Liberal Government responded to the recommendations by refusing to establish a permanent Chapter III court. Instead it established the ‘Australian Military Court’ in reliance on the defence power in s 51(vi) of the Constitution. The legality of the establishment of this ‘court’ was later successfully challenged in the High Court of Australia in Lane v Morrison on the grounds it was a breach of Chapter III of the Constitution. In Lane, the High Court unanimously upheld the challenge and the Australian Military Court ceased to exist. The Government then urgently introduced interim remedial legislation to preserve the judgments of the Australian Military Court and reintroduced the military disciplinary structure which had previously existed under the DFDA. In 2010, and again after its re-election in 2012, the Government introduced bills into the Parliament to establish a permanent Chapter III ‘Military Court of Australia’. However, due to the proroguing of Parliament in 2013, and the election of a new Government, thereafter no steps were taken to consider such a bill. Currently, ADF disciplinary matters are dealt with under the old DFDA procedures, reintroduced as interim remedial legislation, which appears to have now become a permanent regime by default in failing to consider any alternative regime.

Judging government economic performance

ABSTRACTThe macroeconomic theory of judging contends that when justices on courts of last resort consider cases involving their governments and economic issues their voting behaviour will be affected by the state of the economy. Using decisions from the High Court of Australia from 1970 through 2018, the findings suggest that both economic conditions, particularly inflation and the GDP growth rate, and the partisan identity of the Commonwealth government affect the Commonwealth’s probability of winning economic cases. The High Court’s behaviour is consistent with an institution that is part of the national policymaking system and is responsive to the state of the economy.

Perfectly Safe, Five Times Out of Six: The Briginshaw Principle and Its Paradoxes

When a method of risk assessment would endorse playing Russian roulette, something has gone badly wrong with its logic. Yet the current understanding of Briginshaw v Briginshaw means courts cannot properly account for the risks presented in just this sort of situation. In this article, I explain the Briginshaw principle by comparison to intuitive and mathematical models of decision-making under conditions of uncertainty. I show that, while Briginshaw itself left the High Court of Australia deeply divided about where the so-called principle was enlivened and its consequences, subsequent judicial consideration has partly resolved this confusion. However, these subsequent authorities depart from our models, because courts wrongly assume serious allegations are inherently unlikely, insufficiently account for the consequences of ‘false negatives’, and have contradictory attitudes towards economic consequences. More fundamentally, while no theory of decision-making can totally avoid risk, I show that the accepted interpretation of Briginshaw as a fixed standard of proof means courts cannot properly account for improbable but grave consequences. Adopting a variable standard of proof would resolve some of these issues, but current authority is inconsistent with this approach.

Joint Enterprise Liability: Recent Developments and Judicial Responses

This article reconsiders the decision in R v Jogee [2016] UKSC 8 and the merits of joint enterprise liability. The article is structured in three sections. First, it outlines the background to the appeal in Jogee and argues that the Supreme Court’s decision is welcome on both normative and jurisprudential grounds. Second, it considers subsequent academic criticism and the approaches taken by the High Court of Australia and Hong Kong Court of Final Appeal. Third, it responds to these differing perspectives and suggests that Jogee has left the law in a more satisfactory state, but that accessorial liability as a whole remains in need of further clarification.