Trent Nathan King v The Queen [2012] HCA 24
Today the High Court by majority dismissed an appeal by Trent Nathan King against two convictions under s 318(1) of the Crimes Act 1958 (Vic) (“the Act”) for “culpable driving causing death”. The Court held that there was no miscarriage of justice in the way in which alternative verdicts for the lesser 
offence of “dangerous driving causing death” under s 319(1) of the Act were left to the trial jury.
In 2005 Mr King was the driver of a car which was involved in a collision. Mr King’s two passengers died in the collision. Following a jury trial in the County Court of Victoria Mr King was found guilty of two counts of culpable driving causing death and sentenced to a term of imprisonment. Mr King filed applications in the Court of Appeal of the Supreme Court of Victoria for leave to appeal against his convictions and sentence. The Court of Appeal allowed the appeals against sentence, and reduced his total effective sentence, but otherwise dismissed the applications for leave to appeal.
By special leave, Mr King appealed to the High Court against the decision of the Court of Appeal dismissing his applications for leave to appeal against his convictions. The sole ground of appeal related to the standard of culpability applied in the direction of the trial judge to the jury concerning the lesser alternative verdicts of dangerous driving causing death contrary to s 319(1) of the Act. The trial judge told the jury that dangerous driving was established by proof that the accused drove in a way that “significantly increased the risk of harming others” and that it was not necessary for the Crown to prove that the driving was “deserving of criminal punishment”. The jury’s authority to return a verdict of guilty of an offence against s 319(1) was conferred by s 422A(1) of the Act, which conditioned the power to deliver an alternative verdict upon the jury not being satisfied that the accused was guilty of the offence charged under s 318. Mr King complained that the trial judge had pitched the level of culpability for the lesser offence of dangerous driving causing death at such an erroneously low level that the jury would have been less inclined to consider convicting him of that offence.
At the time it was made, the trial judge’s direction accorded with existing authority in Victoria. However, the subsequent decision of the Court of Appeal in R v De Montero (2009) 25 VR 694 construed s 319(1) as imposing a higher level of culpability. It required driving that created “a considerable risk of serious injury or death to members of the public.” It also required conduct by the accused in his manner of driving which was such as to merit punishment by the criminal law. De Montero was applied by the Court of Appeal in Mr King’s case.
The High Court by majority dismissed Mr King’s appeal. The majority held that, subject to one qualification, the trial judge did not err in her direction to the jury relating to the alternative verdicts of guilty of offences against s 319. The decision in De Montero was wrong and should not be followed. The qualification was that it was unnecessary and possibly confusing for her Honour to direct the jury that, in order to prove the commission of an offence against s 319(1), the Crown did not have to satisfy them that the accused’s driving was deserving of criminal punishment. That direction did not, however, constitute a departure from trial according to law or a miscarriage of justice.
Ronald Williams v The Commonwealth of Australia & Ors [2012] HCA 23
Today the High Court, by majority, held that a funding agreement between the Commonwealth of Australia and Scripture Union Queensland (“SUQ”) for the provision of chaplaincy services at a State school in Queensland (“the Funding Agreement”) is invalid. A majority of the Court also held that payments made by the Commonwealth to SUQ under the Funding Agreement were not supported by s 61 of the Constitution.
SUQ, a public company, entered into the Funding Agreement with the Commonwealth to provide certain chaplaincy services at the Darling Heights State School in Queensland (“the School”) in accordance with certain guidelines (“the NSCP Guidelines”). Those services included assisting the School and community “in supporting the spiritual wellbeing of students” and “being approachable by all students, staff and members of the school community of all religious affiliations”. The Funding Agreement was entered into pursuant to the Commonwealth’s National School Chaplaincy Program (“the NSCP”). The funding of the NSCP is not provided under legislation, but under a series of funding arrangements administered by the Commonwealth of which the Funding Agreement is one example.
Ronald Williams, the plaintiff, is the father of four children who attended the School. In 2010, Mr Williams commenced proceedings in the original jurisdiction of the High Court challenging the Commonwealth’s authority to enter into the Funding Agreement with SUQ, to draw money from the Consolidated Revenue Fund (“the CRF”) for each of the financial years from 2007-2008 to 2011-2012 inclusive, and to pay the appropriated moneys to SUQ pursuant to the Funding Agreement.
In addition to the Commonwealth, the Minister for School Education, Early Childhood and Youth, and the Minister for Finance and Deregulation were defendants to the proceeding (collectively, “the Commonwealth parties”). Under the Rules of the Court, the parties agreed to submit a special case to the High Court for determination. Relevantly, the special case asked:
1. Does Mr Williams have standing to challenge the Funding Agreement, the drawing of money from the CRF, and the Commonwealth’s payments to SUQ?
2. Is the Funding Agreement invalid because it is:
(a) beyond the executive power of the Commonwealth under s 61 of the Constitution, or
(b) prohibited by s 116 of the Constitution?
3. Was the drawing of money from the CRF to make payments under the Funding Agreement authorised by the relevant Appropriation Acts?
4. Were the payments made by the Commonwealth to SUQ pursuant to the Funding Agreement:
(a) beyond the executive power of the Commonwealth under s 61 of the Constitution, or
(b) prohibited by s 116 of the Constitution?
Standing (Question 1): The High Court unanimously held that Mr Williams had standing to challenge the validity of the Funding Agreement. A majority of the Court also held that Mr Williams had standing to challenge the validity of each of the payments made to SUQ, and that it was unnecessary to answer whether Mr Williams had standing to challenge the Commonwealth’s appropriations of money from the CRF.
Executive Power (Questions 2(a) and 4(a)): By majority, the High Court held that the Funding Agreement and payments made to SUQ under that agreement were invalid because they were beyond the executive power of the Commonwealth. In the absence of legislation authorising the Commonwealth to enter into the Funding Agreement, the Commonwealth parties relied upon the executive power granted by s 61 of the Constitution. Relevantly, s 61 provides that the executive power of the Commonwealth “extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth”. A majority of the High Court held that, in the absence of statutory authority, s 61 did not empower the Commonwealth to enter into the Funding Agreement or to make the challenged payments. In particular, a majority of the Court held that the Commonwealth’s executive power does not include a power to do what the Commonwealth Parliament could authorise the Executive to do, such as entering into agreements or contracts, whether or not the Parliament had actually enacted the legislation. A majority also held that s 44 of the Financial Management and Accountability Act 1997 (Cth) did not provide the Commonwealth with the necessary statutory authorisation to enter into the Funding Agreement or to make payments to SUQ under that agreement.
Freedom of Religion (Questions 2(b) and 4(b)): The High Court unanimously dismissed that part of Mr Williams’ challenge based on s 116 of the Constitution. Relevantly, s 116 provides that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth”. Mr Williams contended that the definition of “school chaplain” in the NSCP Guidelines imposed a religious test for that office, and that the position of a “school chaplain” was an “office … under the Commonwealth”. The High Court held that the school chaplain engaged by SUQ to provide services at the School did not hold office under the Commonwealth. The chaplain did not enter into any contractual or other arrangement with the Commonwealth.
Appropriations (Question 3): In light of the answer given to Question 1, a majority of the High Court held that it was unnecessary to answer this question.
Kinza Clodumar v Nauru Lands Committee & Ors [2012] HCA 22
On 20 April 2012, the High Court allowed an appeal by Kinza Clodumar from the Supreme Court of Nauru. A majority of the High Court held that, on appeal from the Supreme Court of Nauru, the High Court may receive evidence that was not before the Supreme Court, where that evidence was not discoverable by the exercise of reasonable diligence on the part of the party seeking now to adduce the evidence. Today, the High Court published its reasons for allowing the appeal.
Mr Clodumar is a citizen of Nauru. In 2000, Mr Clodumar commenced proceedings in the Supreme Court of Nauru, to prevent the Nauru Lands Committee from distributing certain interests in land. The Nauru Lands Committee (“the Committee”) is a statutory body empowered, under Nauruan legislation, to determine questions concerning land ownership. Mr Clodumar claimed that certain interests in the land had been transferred to him by the previous, now deceased, landowner. The Supreme Court held that the asserted transfer was void because there was no evidence that the President of Nauru had consented to the transfer. Under s 3 of the Lands Act 1976 (Nauru), the President’s consent in writing is required for the transfer of any interest or estate in Nauruan land. However, for other reasons, the Supreme Court ordered the Committee not to distribute the land and to call a meeting of interested parties to determine the ownership of the land.
In 2010, following these meetings, the Committee re-determined the distribution of the land. The distribution did not give effect to the transfer asserted by Mr Clodumar, who appealed to the Supreme Court of Nauru. According to Mr Clodumar, during the course of this hearing in the Supreme Court, he was given some documents by a pleader of the Supreme Court. One of the documents was a copy of a signed Presidential Approval of the asserted transfer of interests in the disputed land to Mr Clodumar (“the Approval”). The Supreme Court adjourned the further hearing of the appeal to allow Mr Clodumar to appeal to the High Court from the Supreme Court’s decision in 2000. Pursuant to s 5 of the Nauru (High Court Appeals) Act 1976 (Cth) (“the Nauru Appeals Act”), appeals lie to the High Court from the Supreme Court of Nauru.
In the High Court, the Committee did not contest the authenticity of the Approval. According to an affidavit sworn by a former Minister of Nauru, the Approval had been removed from a ministerial office following a change in government, and remained in that person’s home until being discovered in November 2011. However, the Committee contended that the High Court could not receive the Approval because it had not been in evidence before the Supreme Court in 2000. The Committee submitted that the use of the term “appeal” in s 5 of the Nauru Appeals Act indicates that an appeal under that section is an appeal in the strict sense and is to be decided on the basis of the evidence before the Supreme Court. The Committee also opposed Mr Clodumar’s application for an extension of time to appeal to the High Court.
By majority, the High Court held that an appeal under s 5 of the Nauru Appeals Act is not limited to the hearing of an appeal in the strict sense because it engages the High Court’s original jurisdiction under s 76(ii) of the Constitution. For the purpose of an appeal under s 5 of the Nauru Appeals Act, the High Court can therefore receive fresh evidence. The Court held that, in light of the circumstances, even if Mr Clodumar had exercised reasonable diligence, he could not have discovered the Approval before the proceedings commenced in 2000. Furthermore, Mr Clodumar sought to adduce evidence of some cogency, which, if accepted on a retrial in the Supreme Court, would be likely to determine the outcome of those proceedings. The High Court therefore granted the necessary extension of time, allowed the appeal and remitted the matter to the Supreme Court for retrial.
PGA v The Queen [2012] HCA 21
Today the High Court by majority dismissed an appeal from the Full Court of the Supreme Court of South Australia, which had held that a husband could be guilty of rape of his wife in 1963.
In 2010, the appellant was charged with a number of criminal offences including two counts of rape. It was alleged that in 1963 the appellant raped his then wife, with whom he lived at the time. In 1963, 
s 48 of the Criminal Law Consolidation Act 1935 (SA) (“the CLC Act”) criminalised rape but did not define the elements of the offence. Those elements were supplied by the common law. Legislative amendments in South Australia, which removed the limitation period in respect of offences against s 48, permitted the prosecution of the appellant despite the lapse of time between 1963 and 2010.
A Judge of the District Court of South Australia stayed the trial of the appellant and reserved for determination by the Full Court the following question of law: “Was the offence of rape by one lawful spouse of another … an offence known to the law of South Australia as at 1963?” A majority of the Full Court answered that the appellant could be guilty of rape of his wife in 1963. By special leave, the appellant appealed to the High Court seeking to set aside this answer to the reserved question of law.
In the Full Court and in the High Court, the appellant argued that until the High Court’s decision in R v L (1991) 174 CLR 379, the common law with respect to rape in marriage was correctly stated by Sir Matthew Hale. In 1736, Hale wrote that a husband could not be guilty of raping his wife because, by marriage, she gave her irrevocable consent to intercourse. In 1991, the High Court in R v L held that, if it was ever a part of the common law of Australia that by marriage a wife gave irrevocable consent to sexual intercourse with her husband, this was no longer a part of the common law by 1991.
A majority of the High Court dismissed the appeal. The majority held that if the marital exemption to rape was ever a part of the common law of Australia, it had ceased to be so at least by the time of the enactment of s 48 of the CLC Act in 1935. Local statute law, including legislation about divorce, property and voting, had removed any basis for the acceptance of Hale’s proposition as a part of the common law applicable in Australia in 1963. The majority emphasised that this conclusion involved no retrospective variation or modification of a settled rule of the common law of Australia.
Kevin Garry Crump v State of New South Wales [2012] HCA 20
Today the High Court rejected a challenge to the validity of s 154A of the Crimes (Administration of Sentences) Act 1999 (NSW). The Court unanimously held that s 154A did not impeach, set aside, alter or vary the plaintiff’s life sentence.
On 20 June 1974, after their trial in the Supreme Court of New South Wales, the plaintiff, Kevin Garry Crump, and his co-accused, were convicted of murder and for conspiring to murder. Both were sentenced to life imprisonment. The sentencing remarks of the trial judge were to the effect that they should spend the remainder of their lives in gaol. At the time of sentencing, statute conferred upon the Governor a power of release on licence. The law was subsequently changed as to permit a sentencing court to impose a determinate sentence of imprisonment and to fix a minimum term before an offender was eligible for parole. After unsuccessfully applying to the Supreme Court of New 
South Wales for such a determination in 1992, the plaintiff made a subsequent application for determination which was granted by the Supreme Court on 24 April 1997 with the effect that, if the parole system were to remain unchanged, he would become eligible for release on parole as of 13 November 2003.
Further amendments were made to the relevant New South Wales sentencing and parole legislation, with s 154A becoming effective as of 20 July 2001. By reason of s 154A, the plaintiff would not be eligible to be released on parole unless and until the requirements of s 154A were satisfied.
The plaintiff brought proceedings in the original jurisdiction of the High Court complaining that s 154A had the effect of stultifying his benefit or entitlement of eligibility to be released on parole. The plaintiff submitted that the determination of the Supreme Court made on 24 April 1997 was a judgment, decree, order or sentence of the Supreme Court which constituted a “matter” for the purposes of s 73 of the Constitution and that, as the State legislature lacked the power to set aside, vary, alter or otherwise stultify the effect of the determination, s 154A was invalid.
The High Court unanimously rejected all but the last of these submissions, which was not dealt with. The practical reality which faces a sentencing judge is the prospect of legislative and administrative change in parole systems from time to time. Neither the substance nor the form of the 1997 Supreme Court determination had created any right or entitlement for the plaintiff to be released on parole. Section 154A was therefore not invalid.
Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19
Today the High Court granted the Australian Education Union (“the AEU”) special leave to appeal from a decision of the Full Court of the Federal Court of Australia, but unanimously dismissed the appeal. The AEU had challenged the validity of the registration of the Australian Principals Federation (“the APF”) under the Fair Work (Registered Organisations) Act 2009 (Cth) (“the FW(RO) Act”). The High Court held that, pursuant to s 26A of the FW(RO) Act, the APF is a validly registered organisation.
The FW(RO) Act establishes a system for the registration of associations of employers and employees and sets out standards which such associations must meet in order to gain the rights and privileges accorded to registered associations under that Act and the Fair Work Act 2009 (Cth). The AEU is a registered association which represents teachers, principals and other educational staff in schools and colleges throughout Australia. The APF is an association which represents principals in schools and colleges in Victoria and Western Australia.
In 2003 the APF applied to the Australian Industrial Relations Commission for registration as an organisation under the Workplace Relations Act 1996 (Cth) (“the WR Act”). The AEU objected to the application. The APF’s application was successful at first instance and an appeal by the AEU to the Full Bench of the Commission was dismissed. The AEU then applied to the High Court for constitutional writs and associated relief alleging that the decisions of the Commission at first instance and on appeal were affected by jurisdictional error. The proceeding was remitted to the Federal Court. The Full Court of the Federal Court held in Australian Education Union v Lawler (2008) 169 FCR 327 (“Lawler”) that the APF’s registration was invalid on the basis of a deficiency in the APF rules which meant it did not satisfy the criteria for registered associations set out in Sched 1B of the WR Act. The deficiency was the absence of a “purging rule” to terminate the membership of persons no longer qualified for membership by reason of their employment.
In 2009 substantial amendments were made to the WR Act, including changing the title of the Act to the FW(RO) Act. As part of those amendments, s 26A was inserted into the renamed Act to validate registrations prior to 1 July 2009 rendered invalid by reason of the absence of a purging rule. Section 26A was enacted in conjunction with a statutory purging rule in s 171A which applied to all associations from 1 July 2009.
Following the enactment of those amendments, the AEU brought further proceedings in the Federal Court claiming, among other things, a declaration that the APF was not, by operation of s 26A, an organisation within the meaning of the FW(RO) Act. The application was dismissed at first instance and on appeal to the Full Court of the Federal Court. The AEU then applied for special leave to appeal to the High Court. The application was referred for argument before the Full Court of the High Court as on an appeal.
The application raised two issues. The first was whether, as a matter of construction, s 26A operated to validate the registration of the APF. The second issue was whether, if s 26A did validate the APF’s registration, it was constitutionally invalid as an impermissible usurpation of or interference with the exercise of Commonwealth judicial power by the Commonwealth Parliament. The applicant contended that, if s 26A was construed as restoring the APF’s registration, it would in substance dissolve or reverse the orders of the Full Federal Court in Lawler, and that the reversal of a final judgment given in the exercise of federal judicial power was beyond the legislative competence of the Parliament.
The High Court unanimously granted the application for special leave but dismissed the appeal. The Court held that s 26A, on its proper construction, validated the purported registration of the APF. So construed it did not involve an impermissible usurpation of or interference with the judicial power reserved to courts exercising federal jurisdiction pursuant to Ch III of the Constitution. In no sense was s 26A a legislative adjudication of any right or question of law which had been at issue in Lawler.
Peter James Shafron v Australian Securities and Investments Commission [2012] HCA 18
The High Court today held that Mr Peter James Shafron, the company secretary and general counsel of James Hardie Industries Ltd (“JHIL”), contravened s 180(1) of the Corporations Act 2001 (Cth) (“the Act”) by failing to discharge his duties as an officer of JHIL with the degree of care and diligence that a reasonable person in his position would have exercised.
The judgment in this matter should be read with the judgment handed down today in Australian Securities and Investments Commission v Hellicar [2012] HCA 17. This statement should likewise be read with the statement issued concerning that judgment.
Mr Shafron’s appeal concerned a finding at trial, affirmed by the Court of Appeal of the Supreme Court of New South Wales, that he had contravened s 180(1) of the Act in two ways. First, that Mr Shafron had failed to advise either the CEO or the board of JHIL that the company should disclose to the Australian Stock Exchange (“ASX”) certain information about a Deed of Covenant and Indemnity governing JHIL’s separation from two of its subsidiaries. Second, that Mr Shafron had failed to advise the board of JHIL that an actuarial study he had commissioned to predict asbestos related liabilities suffered from critical limitations.
Section 180(1) of the Act imposes a duty of reasonable care and diligence on directors and officers in the discharge of their duties. Mr Shafron did not dispute that s 180(1) applied to him in his capacity as company secretary. The issue before the High Court was whether s 180(1) applied to Mr Shafron for conduct he submitted was undertaken in his capacity as general counsel.
Mr Shafron submitted that the application of s 180(1) should be restricted to those functions he performed in his capacity as company secretary. Mr Shafron argued that the contraventions alleged against him concerned his responsibilities as general counsel, not his responsibilities as an “officer” of the company, and thus should not be subject to s 180(1).
The High Court rejected this argument. Mr Shafron’s responsibilities with JHIL as company secretary and general counsel were indivisible and must be viewed as a composite whole. The scope of responsibilities of a particular officer is to be determined by an examination of all the tasks in fact performed for that company by that officer. The role of a particular company secretary cannot be deduced from an examination of the kinds of tasks that other company secretaries, whether at that company or in general, might perform. The Court of Appeal was correct to affirm the finding at trial that Mr Shafron had contravened s 180(1) by failing to provide the advice in question. Mr Shafron’s appeal was dismissed.
The Australian Securities and Investments Commission v Meredith Hellicar & Ors [2012] HCA 17
High Court today held that seven non-executive directors of James Hardie Industries Ltd (“JHIL”) each breached his or her duties as a director of the company by approving the company’s release of a misleading announcement to the Australian Stock Exchange (“ASX”).
The proceedings arose out of the 2001 restructure of the James Hardie group of companies. Two subsidiaries with significant asbestos-related liabilities were “separated” from the group and the Medical Research and Compensation Foundation (“MRCF”) was established to fund compensation claims made against the separated companies by people injured by their asbestos products.
On 15 February 2001, the board of JHIL approved the separation proposal. The next day, JHIL sent the ASX an announcement outlining the proposal. The announcement contained misleading statements about the sufficiency of the funds available to the MRCF to meet present and future claims.
In February 2007, the Australian Securities and Investments Commission (“ASIC”) brought civil penalty proceedings in the Supreme Court of New South Wales against the respondents (and others) for contravening s 180(1) of the Corporations Act 2001 (Cth). ASIC alleged that the board of JHIL, at its meeting on 15 February 2001, had approved a draft ASX announcement not materially different from the announcement that was made. ASIC alleged that the respondents, other than Mr Shafron, had breached their duties as directors by approving the draft announcement, and that Mr Shafron, a company secretary and general counsel to JHIL, had breached his duty as an officer in several ways, including by not advising the board that the draft announcement was misleading.
At trial, ASIC tendered the minutes of the February board meeting which recorded the tabling and approval of a draft ASX announcement. Those minutes had been adopted and signed as a correct record at the next board meeting in April 2001. Two witnesses called by ASIC to give evidence about the board meeting were unable reliably to recall events. The respondents claimed that the minute recording tabling and approval of the draft announcement was false and that the minutes were demonstrably wrong in other respects. Those of the respondents who gave evidence at the trial did not accept that they had approved a draft ASX announcement.
ASIC did not call JHIL’s solicitor (Mr David Robb) who had supervised the preparation of the draft board minutes and had attended the February board meeting.
The trial judge (Gzell J) found that the board had approved the draft announcement, made declarations of contravention by the respondents (and others), imposed penalties and made disqualification orders. The respondents appealed to the New South Wales Court of Appeal.
The Court of Appeal allowed the appeal, holding that ASIC owed a “duty of fairness” analogous to that owed by a Crown Prosecutor which it had breached by not calling Mr Robb. The Court of Appeal found that, as a consequence of the breach, the cogency of ASIC’s case was so diminished as not to have been proved. ASIC appealed, by special leave, to the High Court.
Allowing ASIC’s appeal, the High Court held that inaccuracies in the February board minutes did not counter their probative value as a contemporaneous and formally adopted record of what was done at the February meeting. The Court found that there was no basis for inferring that Mr Robb may have given evidence favourable to the respondents. ASIC not calling him caused no unfairness. If it had, it would be wrong to respond by discounting the cogency of other evidence led at the trial; the question would be whether there had been a miscarriage of justice requiring a new trial.
ASIC’s appeal was allowed and the matters remitted to the Court of Appeal for further consideration of remaining issues in the appeals to that Court about claims to be excused from liability, penalty and disqualification.
