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.
