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High Court Bulletin

Produced by the Legal Research Officer,
High Court of Australia Library

[2022] HCAB 7 (16 September 2022)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court's original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused

1: Summary of New Entries

2: Cases Handed Down

Case	Title
Garlett v The State of Western Australia & Anor	Constitutional Law
Stephens v The Queen	Criminal Law

3: Cases Reserved

Case	Title
Awad v The Queen; Tambakakis v The Queen	Criminal Law
Electricity Networks Corporation Trading as Western Power v Herridge Parties & Ors	Torts

4: Original Jurisdiction

Case	Title
ENT19 v Minister for Home Affairs & Anor	Constitutional Law
Hornsby Shire Council v Commonwealth of Australia & Anor	Constitutional Law

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Bromley v The King	Criminal Law
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton	Immigration
Young & Anor v Chief Executive Officer (Housing)	Leases and Tenancies
Facebook Inc v Australian Information Commissioner & Anor	Practice and Procedure
Disorganized Developments Pty Ltd & Ors v State of South Australia	Statutes
CCIG Investments Pty Ltd v Schokman	Torts

7: Cases Not Proceeding or Vacated

Case	Title
Page v Sydney Seaplanes Pty Ltd trading as Sydney Seaplanes	Statutory Interpretation

8: Special Leave Refused

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the September 2022 sittings.

Constitutional Law

Garlett v The State of Western Australia & Anor

P56/2021: [2022] HCA 30

Judgment: 7 September 2022

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ

Catchwords:

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Institutional integrity of State courts – Where High Risk Serious Offenders Act 2020 (WA) ("Act") required State court to make restriction order in relation to serious offender if satisfied that order necessary to ensure adequate protection of community against unacceptable risk that offender will commit serious offence – Where robbery specified as "serious offence" under item 34 of Subdiv 3 of Div 1 of Sch 1 to Act – Where appellant imprisoned for offences including robbery – Where State sought restriction order in relation to appellant – Whether State court acting under dictation of executive government – Whether function conferred by Act on State court incompatible with State court being repository of judicial power of Commonwealth – Whether function conferred by Act on State court compromises institutional integrity of State court.
Words and phrases – "adequate protection of the community", "dictation from the executive", "high risk serious offender", "indefinite detention", "institutional integrity", "involuntary detention", "Kable principle", "preventive detention", "protective purpose", "public confidence in the judicial process", "repository of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] HCAB 7
Decision Date

CaseChat Overview and Summary

In Stephens v The Queen [2022] HCA 31, the High Court considered whether section 80AF of the Crimes Act 1900 (NSW) could apply after an accused's trial had commenced. The Court held that it could, allowing the appeal. The Court reasoned that the presumption against retrospective operation of laws did not apply to the amendment of section 80AF, as the amendment did not disadvantage the accused in a significant way. The Court also held that the accused's reasonable expectations were not contravened by the application of the amended section. In Garlett v The State of Western Australia [2022] HCA 30, the High Court considered whether the High Risk Serious Offenders Act 2020 (WA) required the State court to make a restriction order in relation to a serious offender if satisfied that the order was necessary to ensure adequate protection of the community against an unacceptable risk that the offender would commit a serious offence. The Court held that the function conferred by the Act on the State court was compatible with the court being a repository of judicial power of the Commonwealth and did not compromise the institutional integrity of the State court.

In Awad v The Queen; Tambakakis v The Queen [2022] HCATrans 153, the High Court considered whether a jury direction contrary to section 44J of the Jury Directions Act 2015 (Vic) resulted in a substantial miscarriage of justice for the appellants. The Court held that despite the direction being contrary to the Act, it did not result in a substantial miscarriage of justice for either appellant. The Court reasoned that the direction did not have a significant impact on the outcome of the trial and that the evidence against the appellants was strong.

In ENT19 v Minister for Home Affairs [2022] HCA S102/2022, the High Court considered whether a decision to refuse a Safe Haven Enterprise Visa (SHEV) was made for a punitive purpose or inflicted punishment, or whether acting in the "national interest" permitted the Executive to act for a punitive purpose or in a way amounting to punishment. The Court held that the decision was not made for a punitive purpose or inflicted punishment and that acting in the "national interest" did not permit the Executive to act for a punitive purpose or in a way amounting to punishment. The Court also held that the Minister did not fail to consider relevant considerations or proceed on an incorrect understanding of the law.

Orders