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HIGH COURT OF AUSTRALIA 2 March 2016 STATE OF VICTORIA v TATTS GROUP LIMITED [2016] HCA 5 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that Tatts Group Limited ("Tatts") was not entitled to payment by the State of Victoria ("the State") under an agreement between them because a "new gaming operator's licence" was never issued. The appeal was heard concurrently with the appeal in Tabcorp Holdings Ltd v Victoria [2016] HCA 4. In 1992, Tatts was granted a "gaming operator's licence" under Pt 3 of the Gaming Machine Control Act 1991 (Vic) ("the 1991 Act"). That licence was to expire in 2012 and authorised Tatts to conduct gaming on gaming machines at approved venues in Victoria until that time. In 1995, the State and Tatts entered into an agreement ("the 1995 Agreement"). Clause 7 provided for a terminal payment to be paid to Tatts "[i]f the Gaming Operator's Licence expires without a new gaming operator's licence having issued to [Tatts]" but for no amount to be payable if a new gaming operator's licence was not issued at all, or was issued to Tatts or a related entity of Tatts. In 2003, multiple pieces of legislation in Victoria regulating gambling in its various forms, including the 1991 Act, were re-enacted and consolidated into the Gambling Regulation Act 2003 (Vic) ("the 2003 Act"). Tatts retained the authority to carry on gaming operations under its gaming operator's licence on substantially the same terms as under the 1991 Act. In 2008, the Premier of Victoria announced that Tatts' gaming operator's licence would not be renewed upon its expiry. In 2009, the 2003 Act was amended so that no further gaming operator's licences could be issued. The amendments also provided for a new authority called a "gaming machine entitlement" ("GME"). A GME permitted the holder to conduct gaming on an approved gaming machine. 27,500 GMEs were created. They came into effect on 16 August 2012, being the day after Tatts' gaming operator's licence expired. Tatts did not apply for, or receive, any GMEs. The result was that the gaming operations which Tatts conducted under its gaming operator's licence ceased and were then carried on by the holders of GMEs. Tatts claimed it was entitled to payment under cl 7 of the 1995 Agreement. The primary judge found in Tatts' favour, concluding that the reference in cl 7 of the 1995 Agreement to the issue of a "new gaming operator's licence" would have been understood by a reasonable businessperson as the issue of any licence or authority of substantially the same kind as Tatts' existing gaming operator's licence. The Court of Appeal upheld that conclusion. By grant of special leave, the State appealed to the High Court. The High Court allowed the State's appeal and unanimously held that the phrase "new gaming operator's licence" in cl 7 of the 1995 Agreement referred to a gaming operator's licence granted under Pt 3 of the 1991 Act (as it might be amended, re-enacted or replaced from time to time). As a "new gaming operator's licence" was never issued, Tatts was not entitled to payment under cl 7 of the 1995 Agreement.
HIGH COURT OF AUSTRALIA 10 September 2014 COMMONWEALTH BANK OF AUSTRALIA v BARKER [2014] HCA 32 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia and held that a term of mutual trust and confidence should not be implied by law in employment contracts. Stephen Barker’s employment with the Commonwealth Bank of Australia (“the Bank”) was terminated by reason of redundancy on 9 April 2009. On 2 March 2009, Mr Barker was told that his position was to be made redundant and that if he was not redeployed within the Bank, which was the Bank’s preference, his employment would be terminated approximately four weeks thereafter. Having been deprived of access to his Bank email account and voicemail, Mr Barker was not informed about an alternative position within the Bank until 26 March 2009. He was not contacted by the recruitment consultant involved in facilitating the recruitment process for that position, nor was the possibility of retraining for that role discussed with him. Mr Barker commenced proceedings against the Bank in the Federal Court of Australia. He alleged that the conduct of the Bank was in breach of an implied term of mutual trust and confidence and resulted in him being denied the opportunity of redeployment. The primary judge held that there was a term of mutual trust and confidence implied in the agreement between Mr Barker and the Bank and that the Bank’s serious breach of its own redeployment policy amounted to a breach of that implied term. The Full Court, by majority, agreed that a term of mutual trust and confidence was implied by law into the agreement, but held that the primary judge erred in treating the term as co-extensive with an obligation to observe the redeployment policy. The majority held that the implied term required that the Bank take positive steps to consult with Mr Barker about alternative positions within the Bank and give him the opportunity to apply for them. By failing to make contact with him for a period which the primary judge had found to be unreasonable, the term had been breached. By grant of special leave, the Bank appealed to the High Court. The question in the appeal was whether employment contracts contain a term of mutual trust and confidence implied by law that the parties will not, without reasonable cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of trust and confidence between them. Allowing the appeal, the Court held that the proposed term was not necessary in the sense that would justify implying it by law into all employment contracts.
HIGH COURT OF AUSTRALIA 16 May 2016 BELL GROUP N.V. (IN LIQUIDATION) v WESTERN AUSTRALIA; W.A. GLENDINNING & ASSOCIATES PTY LTD v WESTERN AUSTRALIA; MARANOA TRANSPORT PTY LTD (IN LIQ) v WESTERN AUSTRALIA [2016] HCA 21 Today the High Court unanimously held that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) ("the Bell Act") is invalid in its entirety by the operation of s 109 of the Constitution because of inconsistency between its provisions and provisions of the Income Tax Assessment Act 1936 (Cth) and the Taxation Administration Act 1953 (Cth) (collectively, "the Tax Acts"). In November 2015, the Parliament of Western Australia enacted the Bell Act "to provide a legislative framework for the dissolution, and administration of the property, of The Bell Group Ltd ACN 008 666 993 (In Liquidation) and certain of its subsidiaries and for related purposes". The Bell Act was enacted to deal with a list of companies, each defined in the Bell Act as a "WA Bell Company" and each either in liquidation or deregistered. The Commonwealth is a substantial creditor of a number of WA Bell Companies in respect of taxation liabilities. The purported legal operation and practical effect of the Bell Act is that the State of Western Australia ("the State") collects, pools, and vests in a State authority, the property of each WA Bell Company. The State then determines in its "absolute discretion" who is paid an amount or has property transferred to or vested in them out of the pooled property (if anyone). To the extent that the State chooses not to distribute the pooled property of the WA Bell Companies, the surplus vests in the State. In each proceeding, the parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law include whether the Bell Act (or certain provisions of the Bell Act) is invalid by the operation of s 109 of the Constitution because of inconsistency with one or more provisions of the Tax Acts. By majority, the High Court held that the Bell Act purports to create a scheme under which Commonwealth tax debts are stripped of the characteristics ascribed to them by the Tax Acts as to their existence, their quantification, their enforceability and their recovery. The rights and obligations which arose and had accrued to the Commonwealth as a creditor of the WA Bell Companies in liquidation, and to the Commissioner of Taxation, under a law of the Commonwealth prior to the commencement of the Bell Act are altered, impaired or detracted from by the Bell Act. That alteration or impairment of, or detraction from, the Tax Acts engages s 109 of the Constitution which operates to render the offending provisions of the Bell Act invalid. It was not possible to read down offending aspects of the Bell Act nor were the offending provisions able to be severed from the rest of the Bell Act. The Court held, therefore, that the Bell Act is invalid in its entirety. That being so, the Court found it unnecessary to consider other challenges to the validity of the Bell Act.
HIGH COURT OF AUSTRALIA Public Information Officer 5 September, 2003 CHIEF EXECUTIVE OFFICER OF CUSTOMS v LABRADOR LIQUOR WHOLESALE PTY LIMITED, LAWRENCE ERIC WRIGHT AND JEFFREY ANDREW JOHN BRYCE The standard of proof for prosecutions for customs and excise offences was proof beyond reasonable doubt, the High Court of Australia held today, even where those prosecutions are framed as civil actions. This was a higher standard than the alternative, on the balance of probabilities. Labrador Liquor and its two directors allegedly unlawfully failed to pay certain customs and excise duties due on alcohol and cigarettes by falsely claiming that the goods had been exported to the Solomon Islands and Fiji in 1996. The Queensland Supreme Court held that the standard of proof was the civil standard, on the balance of probabilities, and that the customs and excise prosecutions were not criminal proceedings. The Court of Appeal held, by majority, that the criminal standard of proof, beyond reasonable doubt, applied and that the prosecutions were criminal proceedings for the purposes of the Queensland Evidence Act. Customs appealed to the High Court, seeking to have the civil standard of proof apply. The High Court allowed the appeal in part. It unanimously held that to obtain a conviction for any of the particular offences under the Customs Act and the Excise Act, the elements of the offence must be established beyond reasonable doubt. However, the provisions of the Evidence Act which would be applied by the Queensland Supreme Court in civil cases, in particular the admissibility of documentary evidence, are to be applied.
HIGH COURT OF AUSTRALIA 9 August 2017 IL v THE QUEEN [2017] HCA 27 Today the High Court, by majority, allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. The appellant was tried in the Supreme Court of New South Wales. Count 1 on the indictment charged the appellant with manufacturing a large commercial quantity of a prohibited drug, namely methylamphetamine. Count 2 charged the appellant with murder, or alternatively manslaughter, pursuant to s 18(1) of the Crimes Act 1900 (NSW). At trial, the Crown alleged that the appellant had committed the offence in Count 1 by participating with the deceased in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine. The Crown case on Count 2 was that the appellant was guilty of "felony" or "constructive" murder, or alternatively manslaughter, because the act which caused the deceased's death was committed in the course of the joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine, an offence punishable by imprisonment for life. The act causing death was the lighting of a gas ring burner in a small and inadequately ventilated bathroom, which caused a fire. Although the Crown could not exclude the possibility that the deceased had lit the gas ring burner himself and so was killed accidently as a result of his own act, the Crown argued that, because the appellant participated with the deceased in the joint criminal enterprise, the appellant was criminally liable for all acts committed in the course of carrying out that enterprise for the purposes of s 18(1) of the Crimes Act. At the close of the Crown case, the appellant moved for directed verdicts of not guilty in respect of each of the alternative counts in Count 2. The trial judge acceded to that application and directed the jury accordingly. On appeal, the Court of Criminal Appeal held that the trial judge was incorrect to direct a verdict of acquittal on each of the alternative counts. By grant of special leave, the appellant appealed to the High Court. By majority, the Court allowed the appeal. Three Justices allowed the appeal on the basis that s 18(1) of the Crimes Act is not engaged if a person kills himself or herself. Two Justices allowed the appeal on the basis that it is not open to attribute criminal liability to one participant in a joint criminal enterprise for an act committed by another participant in the course of carrying out that enterprise unless the act is, or is part of, the actus reus of a crime. Assuming the deceased lit the gas ring burner, that act was not the actus reus of the crime of murder or manslaughter. The appeal was therefore allowed, and the verdicts of acquittal on Count 2 reinstated.
HIGH COURT OF AUSTRALIA 11 September 2012 RAYMOND HOWARD LYLE DOUGLASS v THE QUEEN [2012] HCA 34 On 16 August 2012, the High Court allowed an appeal by the appellant against his conviction for the aggravated indecent assault of his granddaughter, CD, and directed that his conviction be quashed and a verdict of acquittal be entered. Today the High Court published its reasons for allowing the appeal. The appellant was alleged to have persuaded CD to hold his penis on an occasion when the two were alone in a shed. CD was aged three years at the time of the alleged offence. The appellant was tried by a judge without a jury in the District Court of South Australia. The only evidence of the offence came from CD in unsworn statements made by her in an interview with a psychologist which took place a few weeks after CD's fourth birthday. The limited detail of CD's allegation in the interview was given in response to leading questions and only after she had failed to recall the incident on three occasions. Subsequently, CD had given inconsistent accounts of the scene of the alleged offence. It was also at least possible that CD could not recall the day of the alleged offence by the time she gave evidence 22 months later. The appellant gave sworn evidence denying the allegation against him. He was convicted and sentenced to three years' imprisonment with a non- parole period of 18 months. The appellant appealed to the Court of Criminal Appeal of the Supreme Court of South Australia on two grounds. The first ground of appeal was that the trial judge had failed to give sufficient reasons for the verdict. The appellant complained that the judge had arrived at a conclusion of guilt without rejecting his sworn denial of the offence. The second ground of appeal was that CD's evidence was insufficient to establish proof of the offence beyond reasonable doubt. The appeal was dismissed. In the High Court, the appellant was successful on both grounds. On the first ground, the Court found that the trial judge's failure to record any finding respecting the appellant's evidence left as one possibility that the judge simply preferred CD's evidence and convicted upon it applying less than the standard of proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error. On the second ground, the High Court observed that the trial judge's finding was of satisfaction beyond reasonable doubt of the truthfulness of CD's evidence and that he had not addressed the distinct question of the reliability of CD's evidence to establish the commission of the offence beyond reasonable doubt. The problems with CD's evidence meant that it was not sufficient to support a conclusion beyond reasonable doubt that the offence that the appellant was charged with had occurred. Success on the second ground required that the appellant's conviction be quashed and a verdict of acquittal be entered.
HIGH COURT OF AUSTRALIA 18 June 2014 PLANTIFF S156/2013 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2014] HCA 22 Today the High Court unanimously upheld the validity of two provisions in subdiv B of Div 8 of Pt 2 of the Migration Act 1958 (Cth) ("the Act"), as well as two decisions made under those provisions by the Minister for Immigration and Border Protection ("the Minister"). The plaintiff, a citizen of the Islamic Republic of Iran, entered Australia's migration zone by sea at Christmas Island on 23 July 2013. His method of entry into Australia qualified him as an "unauthorised maritime arrival" ("UMA") under s 5AA of the Act. After arriving at Christmas Island, the plaintiff was detained by an officer of the Department of Immigration and Border Protection and subsequently removed to an assessment centre on Manus Island in the Independent State of Papua New Guinea ("PNG"). The plaintiff commenced proceedings in the original jurisdiction of the High Court, challenging the validity of ss 198AB and 198AD of the Act on the ground that neither provision is supported by any head of power in s 51 of the Constitution. Section 198AB provides that the Minister may designate that a country is a regional processing country. Section 198AD provides that UMAs must be taken from Australia to a regional processing country. Where there are two or more regional processing countries, s 198AD(5) provides that the Minister must give a written direction to take a UMA, or a class of UMAs, to the regional processing country specified in the direction. The plaintiff also challenged the validity of the Minister's decision of 9 October 2012 to designate PNG as a regional processing country under s 198AB ("the designation decision") and the Minister's decision of 29 July 2013 to give a written direction under s 198AD(5) to take UMAs to PNG or to the Republic of Nauru ("the direction decision"). On 13 February 2014, a case was stated and questions reserved for the consideration of the Full Court. The High Court unanimously held that ss 198AB and 198AD are valid under the aliens power conferred by s 51(xix) of the Constitution. The provisions operate to effect the removal of UMAs from Australia and are therefore laws with respect to a class of aliens. The Court also upheld the validity of the designation decision and the direction decision. It held that there is nothing in the text or scope of subdiv B to support the plaintiff's argument that there were relevant considerations which the Minister was obliged to, but did not, take into account in making the designation decision. The Court dismissed the plaintiff's other grounds for challenging the decisions and held that the proceedings are otherwise able to be remitted to the Federal Circuit Court of Australia.
HIGH COURT OF AUSTRALIA 11 November 2015 NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY LIMITED & ANOR v NORTHERN TERRITORY OF AUSTRALIA [2015] HCA 41 Today the High Court, by majority, dismissed an application for a declaration that Div 4AA of Pt VII of the Police Administration Act (NT) ("the Act") is invalid. Section 133AB(1) of the Act, which appears in Div 4AA, provides that the section applies if a member of the Police Force has arrested a person without a warrant in accordance with s 123 because the member believed on reasonable grounds that the person had committed, was committing or was about to commit an infringement notice offence. Section 133AB(2) provides that the member may take the person into custody and hold him or her for a period of up to four hours or, if the person is intoxicated, until the member reasonably believes that the person is no longer intoxicated. Section 133AB(3) provides that at the expiry of the relevant period in sub-s (2), the member may release the person unconditionally, with an infringement notice or on bail, or may bring the person before a justice of the peace or court. The first plaintiff provides legal services to Aboriginal and Torres Strait Islander persons in the Northern Territory. The second plaintiff, an Aboriginal person resident in the Northern Territory, was arrested by members of the Northern Territory Police Force in Katherine on 19 March 2015 and was detained pursuant to Div 4AA for a period of close to 12 hours. The first plaintiff commenced proceedings in the original jurisdiction of the High Court, joined by the second plaintiff. The plaintiffs sought a declaration that Div 4AA is invalid. The plaintiffs contended that Div 4AA is invalid because it confers powers on the Northern Territory Executive which are penal or punitive in character, and that this is beyond the legislative power of the Northern Territory because that power is subject to the same doctrine of the separation of judicial power which limits the legislative power of the Commonwealth. The plaintiffs also contended that Div 4AA is invalid because it confers powers on the Northern Territory Executive which undermine or interfere with the institutional integrity of the Northern Territory courts. The parties agreed a special case which asked the Court to determine whether Div 4AA of Pt VII is invalid. The High Court, by majority, held that Div 4AA is valid. A majority of the Court held that, upon the proper construction of Div 4AA, the powers it confers on members of the Police Force are not penal or punitive in character and do not impair, undermine or detract from the institutional integrity of the Northern Territory courts. Div 4AA, properly construed, does not authorise members of the Police Force to detain a person for longer than is reasonably practicable for them to make a determination about which one of the options under s 133AB(3) is to be exercised. The Court ordered that the matter be referred to a single Justice for further directions. This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.