Thursday, December 23, 2010

New HCA Judgments: Rowe, Aktas, SZJSS and TEC Desert

Four new High Court Judgments handed down. [[Sorry for the delay in posting but I have been one of those affected by the snow in the UK.]]

Rowe v Electoral Commissioner [2010] HCA 46

The decision in this matter was handed down back in August, but the Court reserved their reasons for decision until now.

The High Court (French CJ and Crennan J each provided separate reasons and Gummow and Bell JJ delivered joint reasons; with each of Hayne J, Heydon J and Keifel J providing separate reasons in dissent) has declared legislation constitutionally invalid which had provided for shortened deadlines for the period in which people who are eligible for voting can register to vote. The plaintiffs were members of the 100,000 or so estimated to have been prevented from registering on account of the legislation.

The Question for the Court was the extent to which restrictions on voter registration may fall short of the constitutional requirements of representative government – which is protected by such phrases in the Constitution as, inter alia, "directly chosen by the people" (s 7 and 24). The plaintiffs argued that the exceptionally short period of time between when an election is called and when the registration for voting closes, represented such an unconstitutional restriction on representative government. This was said to be so notwithstanding that those affected always had an opportunity to enrol earlier.

The High Court confirmed the test in the previous case of Roach, which says that, first, regard must be had to the practical operation and effect of the legislation to determine whether there has been a disqualification from voting and, secondly, it must be determined whether there was a “substantial reason” for the disqualification. A substantial reason would be satisfied if it is “reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government”. The Court found that the legislation placed an unconstitutional restriction on the registration of voters and that such a restriction was not reasonably appropriate and adapted to serve a legitimate electoral purpose.

It is not entirely clear the extent to which the majority in this case deals with ‘barriers’ to voting as opposed to clear disqualification. Notably the majority opinion espoused by Gummow and Bell JJ seemed to accept that the plaintiffs had been ‘disqualified’ from voting at the election (at [154]), rather than that they were merely hampered by the reduced period for enrolment. Similarly, Crennan J said that the legislation created a restriction because it operated to ‘disentitle or exclude’ potential voters. Accordingly, the decision may not offer much assistance in determining what obstacles to enrolment (which fall short of disqualification), if any, may prove unconstitutional. Except that the case shows that a person may be practically disqualified notwithstanding some way in which the the restriction could be avoided. French CJ took a more robust approach, balancing the positive and negative effects of the legislation on the entitlement to vote and  seemed to consider it sufficient that the legislation ‘diminished [pre-existing] opportunities for enrolment’ (at [78]) rather than that there was a complete disqualification.

Aktas v Westpac Banking Corporation Limited [2010] HCA 47

This relates to the decision from earlier this year in Aktas v Westpac Banking Corporation Limited [2010] HCA 25. This decision dismisses an application to amend a costs order made in light of certain Calderbank offers of which the Court was not aware. The decision is entirely uninteresting and is probably only given a citation because of Heydon J’s five paragraph lecture on how counsel should be prepared with instructions for argument even if they are ‘only’ taking judgment.

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48

The High Court has unanimously allowed this appeal from the Full Court of the Federal Court of Australia.

The respondents are immigrants from Nepal seeking refugee status on account of purported persecution as a teacher in Nepal, from both Maoist and Nepalese forces. At a hearing before the Tribunal, the respondents provided letters which corroborated their oral evidence about the persecution of school teachers in Nepal. The Tribunal said that they gave the letters ‘no weight’ and referred to the oral evidence as a ‘baseless tactic’. In judicial review proceedings in the Federal Court, the Court concluded that the Tribunal had fallen into jurisdictional error by dealing with the evidence in this manner and that the terminology adopted would lead to a reasonable apprehension of bias.

The High Court found that there was no jurisdictional error and no apprehended bias. Their Honours said that the amount of weight to be given to the letters was a matter for the Tribunal and the decision not to accept them was an acceptable exercise of its function. Similarly, the use of the terminology ‘baseless tactic’ when understood in the context of the Tribunal’s reasons, did not amount to unreasonableness in the manner required for a jurisdictional error, nor did it provide an apprehension of bias.

TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49

The High Court has unanimously allowed this appeal from the Western Australian Court of Appeal.

In this case a company, WMC, sold its mining operations to the appellant, TEC. The agreement by which it did so provided for a conveyance of mining assets to TEC with a retention by WMC of certain assets which were referred to in the agreement as fixtures. Those fixtures were defined as ‘affixed to land, and an estate or interest in which is therefore an estate or interest in land’, and were to be licensed to TEC under the agreement. The Commissioner of State Revenue charged stamp duty on the agreement for the value of the fixtures as a conveyance of land.

The High Court determined that Stamp duty was not chargeable on the so called fixtures as this did not amount to a conveyance in land. In relation to some of the fixtures on land, WMC did not actually hold title to the land and so by virtue of the legal status of the rights it held (mining rights), it did not transfer land by the sale of rights in relation to those fixtures. In relation to the balance of fixtures the Court determined that although the assets were referred to in the sale agreement as fixtures, the agreement displayed that the parties had made an assumption that WMC had distinct title to the relevant fixtures as chattels, notwithstanding their affixation to the land. Accordingly, the affixations were not fixtures in the technical Property Law sense and there was therefore no conveyance of land.

Unfortunately this conclusion meant that the Court avoided the most interesting issue in the case, namely the effect of a purported sale of unsevered fixtures with retention of the rest of the land (or a sale of freehold land, with retention of title to unsevered fixtures). There has been ongoing uncertainty in this area and it would have been helpful to have had some clarification.

Wednesday, December 8, 2010

New HCA Judgments: Port of Portland and Hili & Jones

Two new judgments handed down in the High Court today. They were:

Port of Portland Pty Ltd v Victoria
[2010] HCA 44

The High Court has unanimously allowed this appeal against a decision of the Court of Appeal of the Supreme Court of Victoria.

The appellant was a private company that purchased the land and operations of a government owned port as part of a privatisation move by the Government of Victoria. The Treasurer, on behalf of the Government was a party to the contract. Under the contract the Government agreed to (a) pass legislation in certain terms (the effect of which it was hoped would allow the appellant to avoid tax which would otherwise be payable), and (b) if it failed to pass such legislation to pay the tax for the appellant. Certain legislation was passed but it failed to avoid altogether the tax of the appellant and the appellant sought recovery of the tax. The Government argued that the clause was void as a clause attempting to bind the state to pass legislation and therefore fetter the legislative role.

The High Court considered that the only role of obligation (a) in the circumstances was to determine in what circumstances the Government would be liable under obligation (b). Accordingly, it was unnecessary to consider whether obligation (a) was validand enforceable in its terms. Obligation (b) was therefore operative as it merely required the Government to pay a certain sum upon a certain event. The Court then determined that the legislation which was passed did not meet the requirement in obligation (a) and remitted the matter to a trial judge to quantify the amount due.

Hili v The Queen; Jones v The Queen [2010] HCA 45

The High Court (Heydon J dissenting on one point) has dismissed this appeal against a decision of the Court of Criminal Appeal of New South Wales.

The appellants pleaded guilty to a number of charges relating to a tax evasion scheme, which was the subject of the ‘Project Wickenby’ crack down. On an appeal against sentence the Court of Criminal Appeal increased the sentence on the ground of manifest inadequacy. In doing so they said that the 'norm' for a non-parole period is between 60 and 66% of the head sentence for federal crimes.

Although the High Court ultimately dismissed the appeal, finding that the Appeal Court was correct to increase the sentences, their Honours gave some important rearticulations of sentencing principles. Their Honours said that the Appeal Court was wrong to have regard to a mathematical percentage as the 'norm' for setting a non-parole period. Their Honours said (at [18]):

[T]he consistency that is sought [in sentencing] is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence. Consistency in sentencing federal offenders is achieved by the proper application of the relevant statutory provisions, having proper regard not just to what has been done in other cases but why it was done, and by the work of the intermediate courts of appeal.
Their Honours also rejected an argument that the Court of Appeal had given insufficient reasons for determining an aspect of the appeal.

Friday, December 3, 2010

New HCA Judgments: Aid/Watch and Henschke

Two new judgments handed down in the High Court.

Aid/Watch Incorporated v Commissioner of Taxation [2010] HCA 42

The High Court has allowed this appeal against a decision of the Full Court of the Federal Court of Australia.

For detail, see Alex's post on the case here. This was a test case concerning whether certain benevolent societies who are involved in political action for law reform can have tax exemptions as 'charitable institutions'. The Court found that involvement in the political process to foster legislative change is not necessarily inconsistent with an institution coming within the common law definition of charity.

Commissioner of State Taxation v Cyril Henschke Pty Ltd [2010] HCA 43

The High Court has allowed this appeal against a decision of the Full Court of the Supreme Court of South Australia.

Doris Henschke was a partner of Henschke Wines. when she decided to retire, she signed a retirement deed with the partners and the value of Doris' share in the business was paid out to her. The Commissioner of Taxation imposed stamp duty on the deed, arguing that it reflected a "conveyance on sale" within the meaning of s 60 of the Stamp Duties Act (SA). The Full Court said that the retirement payment did not effect any 'transfer' of Doris' interest, rather that interest simply ceased by virtue of the 'satisfaction' of her chose in action against the partnership.The High Court disagreed. Their Honours concluded that because the retirement of a partner necessarily causes a dissolution of the partnership and a creation of a new partnership, without the retiring partner, there is accordingly a transfer of assets to the new partnership. Consequently there was a 'conveyance' and stamp duty was payable.
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