Palmer v Western Australia: A Constitutional challenge in a time of crisis

Facts/Background

The High Court delivered orders in Palmer v Western Australia [2021] HCA 5 (‘Palmer’) on 6 November 2020. The highly anticipated reasons for that decision were published 24 February 2021. The court considered whether the Quarantine (Closing the Border) Directions (WA) and/or the authorising legislation were invalid because they impermissibly infringed s 92 of The Constitution.

An extraordinary situation, in the form of the worldwide COVID-19 pandemic, arose in March 2020 which has seen unprecedented health and legal measures being implemented globally in response. In Western Australia (‘WA’) a state of emergency was declared on 15 March 2020 pursuant to s 56 of the Emergency Management Act 2005 (WA) (‘EMA’). Enlivened by this declaration, under s 67 EMA, the State Emergency Coordinator enacted the Closing the Border directions. These directions, effectively, shut the entire West Australian border and prevented travel into WA without an exemption.

Mr Palmer is a resident of Queensland and is the Chairman and Managing Director of a mining company with interests in iron ore projects in WA. He, regularly, travelled between the states for purposes related to his company and for other reasons. He provided evidence that he had not suffered any symptoms related to COVID-19 and it was accepted, at first instance, that there was a low risk of community transmission in WA with limited COVID-19 case numbers. Nevertheless, Mr Palmer’s application to enter as an exempt traveller was refused [10]-[11].

Plaintiffs’ primary arguments

In making submissions, the plaintiffs argued that ‘either the authorising Act and/or the Directions are invalid, either wholly or in part … by reason of s 92 of the Constitution’ [12]. They claimed the Direction imposed an effective burden on the freedom of intercourse by prohibiting cross-border movement (which is backed by a criminal sanction) [13]. Alternatively, they alleged the freedom of trade and commerce guarantee in s 92 was contravened as the Directions imposed a discriminatory burden with protectionist effect [13] and [213].

Respondents’ primary arguments

The respondents’ defence went directly to the purpose of s 67 and other provisions of the EMA. The allegations were denied on the basis that the provisions did NOT have the purpose of economically protecting WA. Rather, they have the legitimate purpose of protecting the population against risks arising from emergency situations including the COVID-19 pandemic. The ongoing extensions to the Directions do not have a protectionist purpose but, instead, are ‘reasonably necessary to achieve and compatible with, the legitimate purpose of protecting the WA population’ [14]. They stipulated that there were no other equally effective means to achieve this purpose that lessen the burden on interstate intercourse and this movement is only limited to the extent that is reasonably necessary [14].

Reconciliation of s 92 and structured proportionality

Previous authorities, especially Cole v Whitfield (1988) 165 CLR 360, Betfair Pty Ltd v Western Australia [No 1] (2008) 234 CLR 418 and Wotton v Queensland (2012) 246 CLR 1 (‘Wotton’), left gaps regarding the analysis of s 92. Palmer is the first case to consider the division of s 92 limbs of trade and commerce, and intercourse, and the requirement that protectionist burdens be placed upon trade and commerce to enliven a s 92 challenge. Although the limbs were understood to be burdened in different manners, all judges in this decision found they should be reconciled and subjected to the same standard of analysis.

Kiefel CJ and Keane J held that, although there was a significant burden on the freedom afforded by s 92, it was, nonetheless, justified through the protection of health and life [82]. In supporting this, their honours noted that the High Court has previously allowed for freedoms to be burdened to a significant extent if the burden could be justified.

The relevance of structured proportionality to the analysis of s 92 provisions was also examined in the judgements. Drawing on authorities from the United Kingdom, Canada and the Australian decision,  McCloy v New South Wales (2015) 257 CLR 178, their honours found the structured proportionality approach is the most appropriate, albeit, imperfect, method as it reflects a rational approach to whether a law which burdens a right or freedom can be justified.

Edelman J detailed a three-step approach to structured proportionality:

  1. Examine whether the law has a rational connection to a legitimate purpose i.e. the object, goal, or aim of the provision rather than merely the effect of the law [269]-[270].
  2. Where there is a legitimate purpose BUT the effect is to place a burden on trade and commerce and intercourse, it must be considered whether the means to achieve the purpose are reasonably necessary [271]. In determining this, other available means that would achieve the purpose without placing a burden, or place a lessor burden, must be assessed [271].
  3. Finally, it must be asked whether the law is adequate in its balance. It will be inadequate if the extent of the discrimination/incursion cannot be justified given the law’s purpose [275].

Whilst noting that universal acceptance was yet to occur, a majority determined that the structured proportionality approach achieves “a certainty to which the law aspires” as it discourages conclusory statements and exposes a court’s reasoning [55].

Whilst Justice Gageler came to the same overall conclusion as the other members, the approach in his analysis and reasoning diverged from the rest of the court. He categorically rejected structural proportionality and, instead, preferred the application of the standard of reasonable necessity applied in Betfair [No 1] [94], a case in which his honour had appeared as counsel, in answering a matter of constitutional validity in application of statutory provisions.

When answering the question of what constitutes ‘reasonable necessity’ in exercising a statutory power, all members reiterated the approach taken in Wotton. Where, on a proper construction, the application ss 59 and 67 of EMA comply with the constitutional limitations of s 92, without being read down to save their validity, the directions they impose are justified. See [65]-[66], [122], [126]-[128], [201]-[202], [224], [232]-[234]. The question is answered by determining whether a valid statute empowers an action.

The disposition

The court agreed in this case that the Directions did in fact impose a burden on trade and commerce and intercourse but it remained constitutionally valid and reasonably necessary in the context of a global pandemic. The Plaintiffs were ordered to pay costs.

 

Elise Anthony and Georgia Whybird

Higgins Chambers

9 April 2021

 

 

Free webinar on watershed UK decisions on parent company liability

ICJ Queensland is hosting a free webinar on 22 April 2021 at 5.30pm (AEST / GMT+10) on watershed UK decisions holding parent companies potentially liable for harm caused by their subsidiary companies under normal principles for establishing a duty of care. The UK approach contrasts with Australia where parent company liability has largely fallen off the radar.

The webinar will examine three recent UK decisions and discuss their implications for Australian corporations law and human rights globally:

  1. Vedanta Resources PLC v Lungowe [2019] UKSC 20, which is a watershed decision of the UK Supreme Court involving procedural dispute over whether litigation relating to pollution in Zambia could be tried in the UK courts.
  2. Okpabi v Royal Dutch Shell [2021] UKSC 3, in which the UK Supreme Court affirmed Vedanta and substantially reduced the procedural hurdles of litigation against parent companies for overseas subsidiaries in the context of litigation over oil pollution in Nigeria.
  3. Begum v Maran (UK) Ltd [2021] EWCA Civ 326 in which the Court of Appeal of England and Wales applied Vedanta and Shell to find UK companies might be liable for unsafe work conditions of Bangladesh shipbreakers.

The International Commission of Jurists (ICJ) intervened as amicus curiae in the first two appeals in support of the human rights arguments.

Daniel Leader, a partner at Leigh Day, which acted for the plaintiffs in all three cases, said the ruling in Shell:

“represents a watershed moment in the accountability of multinational companies. Increasingly impoverished communities are seeking to hold powerful corporate actors to account and this judgment will significantly increase their ability to do so.”

This webinar is hosted by the Queensland Chapter of the ICJ.

The speakers:

Oliver Holland is a partner at Leigh Day, the UK law firm that acted for the plaintiffs in the three cases discussed. Oliver specialises in international cases involving multinational corporations where environmental harm or human rights abuses have been alleged. He acted for the plaintiffs in Vedanta Resources and the Bangladesh shipbreakers case and will discuss their human rights implications.

Matthew Brady QC is a Brisbane barrister with a broad commercial and civil practice, with particular emphasis upon corporate and commercial litigation and administrative cases. He is regularly briefed by various Commonwealth entities and acted for ASIC in ASIC v King [2020] HCA 4, which involved the meaning of “officer” of a corporation. He will discuss the implications of the UK approach for Australian corporations law.

Chair:       Dr Chris McGrath, barrister.

Time:        5.30 pm Australian Eastern Standard Time (GMT+10)

Date:         Thursday 22 April 2021

Venue:     online link provided on registration

RSVP:       chris.mcgrath@qldbar.asn.au by 21 April 2021


SECOND WEBINAR:
‘Human Rights Litigation against Multinational Parent Companies’.

The Private Law Group of Trinity College Dublin Law School is hosting a different webinar featuring guest speaker Richard Meeran, Head of the International department at Leigh Day, London who will speak on ‘Human Rights Litigation against Multinational Parent Companies’.

The webinar is being held at 5pm on 22 April 2021 in Dublin, Ireland (which is 2am AEST on 23 April 2021).

Registration is free at this link.

Procedural fairness and practical justice in the delivery of ex tempore reasons in Federal Circuit Court – Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6

Background

The High Court’s recent decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 concerned issues of procedural fairness in the delivery of reasons for judgment in Federal Circuit Court proceedings in the migration law context.

The first respondent, a citizen of Pakistan, was refused a Protection (Class XA) visa by a delegate of the appellant Minister. On review by the Administrative Appeals Tribunal, the delegate’s decision was affirmed. The first respondent sought judicial review of that decision in the Federal Circuit Court. The first respondent was not legally represented in those proceedings but was assisted by an interpreter. The primary judge dismissed the application for judicial review and delivered an ex tempore judgment. The orders of the Federal Circuit Court were translated for the first respondent but the oral reasons for judgment were not. The first respondent appealed from that judgment to the Federal Court of Australia.

The Federal Court allowed the appeal, set aside the orders made by the Federal Circuit Court and remitted the matter to be heard by a different judge on the basis that the failure by the primary judge to have his oral reasons for judgment translated for the benefit of the first respondent constituted a denial of procedural fairness.

In so deciding, the Federal Court considered that the pronouncement of ex tempore reasons to a non-English-speaking self-represented litigant, without translation and which were not followed by written reasons as soon as practicable after the orders were announced (the written reasons were provided after the notice of appeal was filed) amounted to a denial of procedural fairness.

The appellant’s primary argument

The appellant submitted that the obligation to afford procedural fairness is directed to the applicable process before a relevant decision is made, not after. The critical question is whether the denial of procedural fairness deprived an interested party of the possibility of a successful outcome. It followed that the task of delivering reasons for relief could never produce an affirmative answer to that question ([14]). The loss of opportunity to succeed was limited to the opportunity before the primary judge, not on appeal ([16]).

The appellant also argued that remittal was not an appropriate order because the outcome of the proceedings before the Federal Circuit Court was inevitable ([16]).

The respondent’s primary argument

The first respondent submitted that sufficient access to reasons for judgment is integral to the determination of whether to appeal, whether to respond to appeal and, in either case, to have a fair opportunity to advance one’s case. The failure of the primary judge’s reasons for judgment to be translated impaired the first respondent’s ability to pursue his rights ([18]).

The majority judges

The Full Court of the High Court was constituted by five justices. Steward J, with whom Kiefel CJ, Keane, Gordon, Edelman JJ agreed, allowed the appeal.

At [22], Steward J agreed with the appellant’s submission and found that ‘the final instance of any right or entitlement of either party arising from the primary judge’s obligation to afford procedural fairness occurred at the time the parties made their concluding submissions’. Thereafter, procedural fairness had no role to play in respect of the matters the subject of the primary judge’s decision ([22]).

At [26] to [31], Steward J addressed the requirement for reasons for judgment in the Federal Circuit Court and at [32] to [38], addressed the various ways court processes can be used to avoid practical injustice for litigants in the position of the first respondent.

Steward J recognised that the failure to interpret the primary judge’s ex tempore reasons was, in a general sense, unfair but, setting aside the Federal Circuit Court’s decision was not the only course open to the Federal Court on appeal and went beyond what was required to provide the first respondent with practical justice ([40][41]).

Procedural fairness and practical justice

The wider importance of this decision is its affirmation that to constitute a basis for setting aside a decision for lack of procedural fairness there must be a “practical injustice” that could have materially affected the decision. The body of Steward J’s reasons allowing the appeal were headed “Procedural fairness and practical justice”, clearly marking this as the core issue.

In emphasising the importance of “practical unfairness” and “practical justice”, his Honour referred to the Court’s earlier decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 13-14 [37] per Gleeson CJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 443 [38] per Bell, Gageler and Keane JJ.

Gleeson CJ said in Lam at [37]:

“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

Given the myriad of ways questions about procedural fairness can arise, a lawyer considering whether there has been a lack of procedural fairness should ask: “has there been a practical injustice that could have materially affected the decision?”

Similarly, courts and tribunals should always seek to afford litigants practical justice.

Disposition

In the result, the appeal was allowed. It was further ordered that the appeal to the Federal Court be dismissed.

 

Kate Slack and Chris McGrath

Higgins Chambers

8 March 2021

Okpabi v Royal Dutch Shell [2021] UKSC 3 reads like a bomb that has just exploded for multinational companies globally

The decision in Okpabi v Royal Dutch Shell [2021] UKSC 3 (Shell) reads like a bomb that has just exploded in the boardrooms of multinational companies globally.

In it, the UK Supreme Court confirmed its watershed decision in Vedanta Resources PLC v Lungowe [2019] UKSC 20, (Vedanta) that:

“‘the liability of parent companies in relation to the activities of their subsidiaries is not, of itself, a distinct category of liability in common law negligence’. The liability for parent companies raises no novel issues of law and is to be determined on ordinary, general principles of the law of tort regarding the imposition of a duty of care. In the context of parent/subsidiary relationships, whether a duty of care arises: ‘… depends on the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary.'”

Like Vedanta, which involved pollution in Zambia by a mine operated by a Zambian subsidiary of a parent company based in the UK, Shell involved pollution in Nigeria by oil operations of a Nigerian subsidiary of a parent company based in the UK.

Both decisions have immense implications for the ability of parent companies to hide behind the corporate veil to avoid liability for harm caused by their subsidiaries in other (often very poor) countries.

Shell not only confirms the principles in Vedanta but should make it much easier in practice for future plaintiffs to commence their case and not be overwhelmed by a mountain of one-sided evidence thrown at the court by a large multinational to kill the litigation before disclosure and a trial have occurred.

In Shell, the UK Supreme Court deplored the mountain of evidence and submissions that had been tendered at the interlocutory stage of establishing whether the UK courts were an appropriate forum for the dispute (rather than Nigeria). The court stated that interlocutory decisions involving jurisdictional disputes should focus on the pleadings and not be turned into “a mini trial” in which a court makes determinations in relation to contested factual evidence.

Lord Hamblen (with whom Lord Hodge, Lady Black and Lord Briggs agreed) stated in allowing the appeal from the UK Court of Appeal (which had descended into evaluating the evidence to find the claims were not reasonably arguable, therefore the UK was not an appropriate forum):

[107] The result is that instead of focusing on the pleaded case and whether that discloses an arguable claim, the court is drawn into an evaluation of the weight of the evidence and the exercise of a judgment based on that evidence. That is not its task at this interlocutory stage. The factual averments made in support of the claim should be accepted unless, exceptionally, they are demonstrably untrue or unsupportable

If Vedanta was a pathfinder leading the way, this reads like carpet bombing of liability for parent companies based in the UK for harm their subsidiaries cause in other countries.

Both Vedanta and Shell have immense implications for liability of multinational corporations and parent companies globally as well as “practical access to justice” for people impacted by the operations of subsidiaries in often very poor countries.

Daniel Leader, a partner at Leigh Day, which acted for the plaintiffs in both cases, said the ruling in Shell:

“represents a watershed moment in the accountability of multinational companies. Increasingly impoverished communities are seeking to hold powerful corporate actors to account and this judgment will significantly increase their ability to do so.”

Both Vedanta and Shell involved pollution by subsidiaries. In the context of the rising tide of climate litigation globally, their reasoning has important implications for liability of parent companies of multinational coal, oil and gas companies for greenhouse emissions caused by their subsidiaries’ operations globally.

Congratulations to Leigh Day, the UK firm and their lead counsel, Richard Hermer QC, who acted for the plaintiffs in both Vedanta and Shell for these incredible human rights wins.

While it remains to be seen if this approach will be followed in Australia and other common law countries, the reasoning of the UK Supreme Court, based firmly in well-established principles of tort for negligence, is compelling.

 

Dr Chris McGrath

Barrister

Higgins Chambers

14 February 2021

 

 

 

High Court confirms the nuclear effect of a finding of apprehended bias

In Oakley Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2021] HCA 2 the High Court allowed an appeal against a decision of the Queensland the Court of Appeal that had declined to set aside and remit for rehearing an administrative decision of the Land Court of Queensland found to be affected by apprehended bias. The Court of Appeal had held that there was no “utility” in ordering a rehearing in the circumstances of the appeal.

Kiefel CJ, Bell, Gageler and Keane JJ (in a joint judgment) and Edelman J (in separate reasons) confirmed that, ordinarily a finding that an inferior court’s decision was affected by apprehended bias will result in the decision below being set aside and a new hearing ordered. While a court exercising judicial review has is a discretion in highly exceptional cases not to do so, practical inconvenience of giving effect to the rights, duties and powers that have been judicially determined is not a circumstance that can justify withholding an order for a rehearing.

The appeal involved a controversial proposed coal mine expansion on the Darling Downs with a complicated procedural history.

Complicated procedural history

New Acland Coal Pty Ltd (NAC) operates an open-cut coal mine near Oakey on the Darling Downs, Queensland.

In 2007, NAC sought to expand its mine, applying for mining leases under the Mineral Resources Act 1989 (MRA) and an amendment to its existing environmental authority under the Environmental Protection Act 1994 (EPA).

In 2012, the then LNP State Government rejected the original proposed expansion, after which NAC reduced its scale substantially.

In 2015, after objections were made to expansion, the applications were referred to the Land Court for a public hearing and were heard by Member Smith.  The Oakey Coal Action Alliance Inc (OCAA) was one of the objectors.  The issues heard in the court included economic issues, air quality, noise, climate change, biodiversity, groundwater etc. The hearing was the longest in the Land Court’s history, lasting nearly 100 sitting days.

In 2017, Member Smith handed down a decision recommending NAC’s applications be refused due to problems with imposing acceptable noise limits, concerns over the impact on groundwater, and intergenerational inequity due to the impact on groundwater. The Chief Executive acted upon the recommendations made by Member Smith and refused the application under the EPA.

NAC applied under ss 20 and 21 of the Judicial Review Act 1991 (JRA) to the Supreme Court for a statutory order of review of Member Smith’s recommendations based on 15 grounds, including  apprehended bias. In 2018 Bowskill J found no apprehended bias on the part of Member Smith in relation to the recommendations, but set aside his decision and remitted the applications to the Land Court to be reheard by a different member to due to a number of errors of law, including that the Land Court had no jurisdiction to consider impacts on groundwater quantity.

With the consent of the parties, Bowskill J made unusual orders for the remittal to the Land Court to avoid re-litigation of issues that Member Smith had decided which weren’t affected by legal error. Under these orders, the applications were to be heard by a different member of the Land Court but would be largely bound by Member Smith’s findings.

OCAA appealed against Bowskill J’s decision that groundwater was not within the Land Court’s jurisdiction to the Queensland Court of Appeal. To protect its position, NAC attempted to cross-appeal on a contingent basis against the refusal to uphold its ground of review for apprehended bias. NAC attempted to make the cross-appeal contingent on OCAA’s appeal being dismissed (that is, the cross-appeal would only proceed if the Court of Appeal were to uphold OCAA’s appeal).

While the appeal was pending, the applications were returned to the Land Court and a rehearing was held before President Kingham on the unusual and very limited basis as ordered by Bowskill J to avoid re-litigation of issues that Member Smith had decided which weren’t affected by legal error. This resulted in a much shorter hearing (of only 3 days). Ultimately, President Kingham recommended the applications be approved subject to reducing the noise limits in the environmental authority.

In 2019, at the start of oral hearing before the Court of Appeal, President Sofronoff refused to allow NAC to proceed on a contingent basis for apprehended bias. NAC conceded that a finding of apprehended bias was “nuclear in effect” and would mean the applications would have to be reheard in full by the Land Court. NAC elected to proceed with its cross-appeal not on a contingent basis.

Ultimately, the Court of Appeal gave two decisions at the end of 2019. In the first, it dismissed OCAA’s appeal and allowed NAC’s cross-appeal.  In the second decision, after allowing further submissions on the orders that ought to be made, the Court of Appeal declined to set aside the decisions below because of the lack of “utility” in doing so, as the applications had already been reheard before President Kingham.

OCAA applied for special leave to appeal against the Court of Appeal’s decision not to order a rehearing after having found apprehended bias in the Land Court’s decision. In early 2020 the High Court granted special leave to appeal and the appeal was heard towards the end of 2020.

The High Court found that Kingham P did not behave with apprehended bias during the rehearing but, because she was bound to apply the findings by Member Smith which were affected by apprehended bias, she “breached a condition of the exercise of the Land Court’s jurisdiction to perform its administrative function under the MRA and the EPA” [49]. Additionally, the High Court stated that “central to those implied conditions of that statutory process by which the recommendation is required to be produced is that the Land Court observe procedural fairness in conducting the hearing and in making the recommendation” [57].

The High Court ordered that the appeal be allowed and a new hearing before the Land Court be made.

 

Madhuri Pillai

8 February 2021

Some recent climate change reading

The great thing about being a lawyer interested in climate change is that we never run out of things to read. Here is a short list of some recent useful documents, in case you missed them.

The United Nations Environment Program has released two important documents comparing what we are doing/promising and what we need to promise/do. The first of these is the Emissions Gap Report 2020 which was released on 9 December 2020. The information in the report indicates that we have to improve our game across the globe. Even the current promises that form part of the Paris Agreement have the world looking at 3 degrees centigrade temperature rise by the turn of the century rather than 1.5 or 2%. The report may be downloaded here.

The sister document of the emissions gap report is the Adaptation Gap Report 2020 released by UNEP on 21 January 2021. The message is similar to the emissions gap report in that, while there are some excellent programs directed at dealing with the impacts of climate change, including nature based solutions, these efforts have to be scaled up massively to meet the challenges that unavoidable/expected climate change is already throwing at us, especially, in the case of communities otherwise least able to cope. The link for this sobering report is here.

The third document on my highly recommended list is a brilliant (as always) paper by Chief Judge Brian Preston of the NSW Land and Environment Court. Although delivered almost a year ago on 11 February 2020, the paper entitled Climate Conscious Lawyering: Five Ways that Lawyers can Implement a Climate Conscious Approach in their Daily Legal Practice is available to be downloaded with Chief Judge Preston’s other papers, here (the document linked to on that page had an earlier title). The paper was recently published in (2021) 95 ALJ 51.

Stephen Keim SC

Higgins Chambers

31 January 2021

 

Human rights advocate, Stephen Keim SC, wins Law Council of Australia President’s Award

Law Council of Australia media release – 7 December 2020

The Law Council of Australia’s 2020 President’s Award has been presented to Queensland barrister, Stephen Keim SC, a champion of human rights in Australia and around the world.

The President’s Award is awarded to an individual who has been an “outstanding example to the Australian legal profession and to those who might seek to join its ranks”.

Law Council President, Pauline Wright, presented Mr Keim with his award at the annual Law Council Director’s Meeting held virtually, as a result of COVID-19 restrictions, on 5 December.

“I am honoured to present the President’s Award to Stephen Keim SC who has spent his career fighting injustice. He’s never been afraid to take on cases that attract controversy and the public eye,” said Ms Wright.

“Skillful advocacy on behalf of our clients is an essential tool for lawyers. But what makes a truly great legal advocate is the ability to engage with heart and passion where the case demands it. Someone whose skills lead not just to just outcomes for their clients, but to the transformation of public opinion and a fairer society.

“Stephen has never been afraid to take on the hard cases, those that invite public debate – even when they threaten his self-interest.

“His career is marked by helping some of the most vulnerable people in society, both here in Australia and internationally.”

Ms Wright paid tribute to Mr Keim’s commitment to ending the death penalty in his role as patron of Australians Against Capital Punishment and the Julian Wagner Memorial Fund, and for his indefatigable work in the field of Indigenous justice.

“Stephen is an active member of the Indigenous Incarceration Working Group of the Law Council of Australia and works, tirelessly, to promote the rights of First Nations peoples,” Ms Wright said.

“His commitment was demonstrated earlier this year, when the High Court in Love and Thoms ruled that, under the Constitution, Aboriginal Australians cannot be considered ‘aliens’ – a decision which generated many headlines and provoked a storm of opposition.”

Ms Wright also highlighted Mr Keim’s role in one of Australia’s most high-profile terrorism cases when he represented Dr Mohamed Haneef. It resulted in Mr Keim being awarded the 2009 Human Rights Medal by the Australian Human Rights Commission.

“Stephen is a most worthy recipient of this year’s President’s Award. His bravery and unwavering commitment to social justice should be an inspiration to us all,” Ms Wright said.

You can watch Stephen’s acceptance speech below.

Law Council of Australia renews call for federal Human Rights Act at National Press Club

Australia is the only Western democracy without some form of a charter of rights at the national level, whether legislated by parliament, or entrenched by constitution.

On 18 November 2020, Law Council President Pauline Wright and Stephen Keim SC addressed the National Press Club in Canberra on the topic ‘No time like the present to protect our human rights’ aiming to address this deficiency in Australia’s human rights protections.

In her speech, Pauline announced the Law Council’s refreshed policy on a federal Human Rights Act. The Law Council’s longstanding position is that the Commonwealth Constitution should guarantee human rights to ensure the most effective protection against legislative incursions into those rights. However, the refreshed policy (available at this link) accepts that a federal Human Rights Act is the most feasible way forward in the first instance.

Stephen spoke as a member of the Law Council’s National Human Rights Committee on the eight areas covered by the policy:

1) The rights to be protected;

2) Who should receive protection;

3) The importance of an interpretive clause;

4) Statements of compatibility;

5) Duties on public authorities;

6) An independent direct right of action;

7) Remedies; and

8) Procedural matters, including costs.

The text of their speeches is available at this link.

A recording of their addresses is available on ABC iView at this link until 18 December 2020.

 

Litigating the enforcement of building covenants – Part 1

The enforceability of building covenants is quite cumbersome in Queensland. Generally, they need to be enforced contractually. This can be very time consuming and costly. I was recently involved in a series of cases enforcing building covenants on a housing estate. Given the limited authorities relating to the enforcement of covenants in Queensland, I thought it useful to write about those recent cases and my experiences in them to identify matters would be helpful in enforcing covenants in other litigation.

The attached paper is part 1 of five parts addressing the enforcement of convenants. It focuses on obtaining the initial injunction in a series of matters involving BGM Projects Pty Ltd and Durmaz Corporation Pty Ltd.

The lessons from this case were more about practice than the substantive law relating to restrictive covenants. Those lessons were:

  1. the importance of having a precedent draft application and order, which made the drafting of the documents for the instant matter much easier;
  2. being familiar with, and having available, the key authorities, as this meant that there was no scramble to locate cases and allowed focus on important matters;
  3. some material is better than none, and the more that can be prepared the better (which segues neatly to the last lesson);
  4. it is very helpful to have an experienced instructing solicitor.

The next instalment will deal with the Transfer Injunction and highlight a number of matters of substantive law, as well as of practice.

 

Robert A. Quirk

Higgins Chambers

7 October 2020

 

19 distinct human rights identified under PNG Constitution

Comparative constitutional law offers many opportunities to learn new insights and opportunities for future reforms, including for Australian lawyers dulled by a constitutional regime largely devoid of identified human rights.

In stark contrast to Australia’s anemic constitutional regime, the Papua New Guinea (PNG) National Court of Justice recently identified 19 distinct human rights under the PNG Constitution.

The case, Helal Uddin v Solomon Kantha [2020] PGNC 83; N8267 (Cannings J), involved a Bangladeshi man who was transferred from Australia to PNG in 2013 and held at the Manus Island Regional Processing Centre. He had married a PNG citizen and had a child who was a PNG citizen, yet the PNG government proposed to deport him. He applied to the PNG National Court of Justice to stop his removal from PNG.

As the man was not a PNG citizen, Cannings J listed in the following table (and [49] of the judgement) each of the 19 distinct and individual rights in the PNG Constitution and categorised them according to who are the ‘beneficiaries’ or ‘possessors’ of each right: either all persons in PNG or PNG citizens only.

HUMAN RIGHTS IN PAPUA NEW GUINEA
CATEGORISED ACCORDING TO BENEFICIARIES/POSSESSORS

No
Description
Constitution provision
Details
Beneficiaries/
Possessors

1.

Right to freedom
s 32
Every person has the right to freedom based on law and can do anything that does not interfere with others and is not prohibited by law.
All persons in PNG

2.

Right to life
s 35
No person shall be intentionally deprived of his or her life except by a court sentence or by reasonable force as permitted by law.
All persons in PNG

3.

Freedom from inhuman treatment
s 36
No person shall be submitted to torture or cruel or inhuman treatment.
All persons in PNG

4.

Protection of the law
s 37
Every person has the right to the full protection of the law, especially persons charged with offences.
All persons in PNG

5.

Protection from unlawful acts
s 41
Any act that is done under a valid law but in the particular case is harsh or oppressive or otherwise proscribed by s 41(1) is an unlawful act.
All persons in PNG

6.

Right to personal liberty
s 42
No person shall be deprived of his or her personal liberty except in circumstances permitted by the Constitution. No person can be unlawfully arrested or detained.
All persons in PNG

7.

Freedom from forced labour
ss 43,
253
No person shall be required to perform forced labour except in circumstances permitted by the Constitution. Slavey is strictly prohibited.
All persons in PNG

8.

Freedom from arbitrary search and entry
s 44
No person shall be subjected to the unreasonable search of his or her person or property or to unreasonable entry of their premises except in circumstances permitted by the Constitution.
All persons in PNG

9.

Freedom of conscience, thought and religion
s 45
Every person has the right to freedom of conscience, thought and religion and to practise and propagate their religion and beliefs, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

10.

Freedom of expression
s 46
Every person has freedom to hold opinions, to receive ideas and information and to communicate ideas and information and to express and publish their opinions and ideas, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

11.

Freedom of assembly and association
s 47
Every person has the right to peacefully assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

12.

Freedom of employment
s 48
Every person has the right to freedom of choice of employment in any calling for which he or she has the qualifications lawfully required, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

13.

Right to privacy
s 49
Every person has the right to reasonable privacy in respect of the private and family life, their communications with other persons and their personal papers and effects, subject to the regulation or restriction of these rights in accordance with the Constitution.
All persons in PNG

14.

Right to vote and stand for public office
s 50
Every citizen who is of full capacity and has reached voting age has the right and shall be given a reasonable opportunity to take part in the conduct of public affairs, either directly or through freely chosen representatives and to vote for, and to be elected to, elective public office at genuine, periodic, free elections and to hold public office and to exercise public functions.
PNG citizens only

15.

Freedom of information
s 51
Every citizen has the same rights, privileges, obligations, and duties, irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
PNG citizens only

16.

Freedom of movement
s 52
No citizen may be deprived of the right to move freely throughout the country, to reside in any part of the country and to enter and leave the country; and citizens cannot be expelled or deported except in accordance with the Constitution.
PNG citizens only

17.

Protection from unjust deprivation of property
s 53
Possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament that provides just compensation and meets other constitutional requirements.
PNG citizens only

18.

Right to equality
s 55
Every citizen has the same rights, privileges, obligations, and duties, irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
PNG citizens only

19.

Right of enforcement
s 57
All rights and freedoms are enforceable in the Supreme Court and the National Court.
All persons in PNG

 

While many of these rights are familiar from the Universal Declaration of Human Rights and similar human rights conventions, several of PNG’s constitutionally protected human rights, such as s 41, are particularly broad.

Another remarkable feature of PNG’s system is the clear right in s 57 to enforce the rights protected under the constitution in the PNG National Court of Justice.

This is linked to a right in s 58 to seek damages for infringement of other rights (the right to seek damages under s 58 is, arguably, a 20th right that Cannings J should have included in the rights listed in the table).

While dismissing a number of the applicant’s claims of breaches of constitutional rights, Cannings J went on to discuss the “narrow” and “broad” approaches to s 41 (Proscribed acts) at [58]-[67]. His Honour noted, at [60], that:

“Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

  • • harsh; or
  • • oppressive; or
  • • not warranted by the requirements of the particular circumstances; or
  • • disproportionate to the requirements of the particular circumstances; or
  • • not warranted by the requirements of the particular case; or
  • • disproportionate to the requirements of the particular case; or
  • • otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.”

 

Cannings J affirmed his previous application of the broad approach to s 41, which he summarised at [68] as:

  • • human rights as conferred and defined by the Constitution have universal application, and cannot be said to have no operation in any situation;
  • • s 41 creates rights, freedoms and protections (and thereby imposes obligations) in the same way as other human rights provisions of Division III.3 of the Constitution;
  • • s 41(2) provides that the burden of showing a breach of human rights under s 41(1) rests on the person alleging it and may be discharged on the balance of probabilities.

 

Cannings J went on, at [70]-[71], to find the applicant’s human rights under s 41 had been breached and make orders restraining his removal from PNG as:

“The decisions of the respondents have been made with callous disregard to their impact on not only the applicant but also his wife and his child. Decisions have been made without considering their human toll. This is precisely the sort of situation in which s 41 should be invoked. A breach of the applicant’s right of protection against harsh, oppressive and other proscribed acts under s 41 of the Constitution has been proven.”

This remarkable decision seems to come from a different universe for lawyers, like me, used to working through the narrow lens of the Australian constitution where such broad powers of courts to declare executive action unlawful based on broad human rights are absent.

Dr Chris McGrath

Higgins Chambers

10 September 2020