High Court of Australia Judgments – Summary Notes

Vickie Lee Roach v Electoral Commissioner and Commonwealth of Australia [2007] HCA 43

30 August 2007

Chief Justice Murray Gleeson made the following statement:

Prior to an amendment of the Commonwealth Electoral Act in 2006, prisoners serving a sentence of three years or longer were not entitled to vote. In 2006, the Act was amended to provide that prisoners serving any sentence of imprisonment were not entitled to vote.

The plaintiff challenged the validity of the 2006 amendment. The plaintiff also argued that, if the 2006 amendment were invalid, either the pre-2006 legislation did not continue to apply, or, if it did, it also was invalid.

The Court, by majority, upholds the challenge to the 2006 amendment. It also holds that the pre-2006 legislation continues in force and is valid. Reasons for the decision will be published at a future date.

The order of the Court is as follows:

The questions stated in the Amended Special Case filed on 9 July 2007 be answered as follows:

(3A)

I publish that order.

Revised draft with changes from Gummow J

Vickie Lee Roach v Electoral Commissioner and Commonwealth of Australia

26 September 2007

Amendments made in 2006 to the Commonwealth Electoral Act to disqualify all prisoners from voting were invalid, but previous legislation disqualifying prisoners serving sentences of three years or more was valid and remained operative, the High Court held in reasons published today for orders announced on 30 August 2007.

Ms Roach was convicted in Victoria in 2004 on charges relating to a robbery and to seriously injuring a man when she crashed into his car while being chased by police and was sentenced to a total of six years’ jail with a four-year non-parole period. She challenged the 2006 amendments and, in addition, the previous legislation.

The Court, by a 4-2 majority, held that the 2006 amendments were inconsistent with the system of representative democracy established by the Constitution. The Court held that voting in elections lies at the heart of that system of representative government and disenfranchisement of a group of adult citizens without a substantial reason would not be consistent with it. Since 1902, Commonwealth legislation has provided that certain prisoners were not entitled to vote. Until 1983, persons sentenced or subject to be sentenced for an offence punishable by imprisonment for one year or longer could not vote. From 1983 to 1995, the period was five years. From 1995 to 2004, the reference to an offence punishable by imprisonment for five years or longer was altered to refer to those serving a sentence of five years or longer. From 2004 to 2006, the threshold was reduced to three years. In 2006, the Commonwealth Electoral Act was amended to provide that people serving any sentence of imprisonment were disqualified from voting in federal elections.

The Court held that the 2006 amendments did not sufficiently distinguish more culpable conduct from conduct that was still criminal but less culpable, as they treated indifferently imprisonment for a few days, mandatory sentences and sentences for offences of strict liability. The 2006 amendments did not relate to all people in prison. At 30 June 2006, 22 per cent of 25,790 people in Australian prisons were unsentenced prisoners who could vote either by postal vote or at mobile polling booths. Conversely, fines, community service, home detention and periodic detention did not lead to loss of the vote but such alternatives to prison were not available all over Australia and may not be practical in particular cases due to homelessness, poverty or mental instability. The net of disqualification was cast too wide and went beyond the rationale for justifying a suspension of one of the fundamental incidents of citizenship. By contrast, the three-year criterion in the pre-2006 legislation did sufficiently distinguish between serious lawlessness and less serious but still reprehensible conduct.

The Court also observed that a prohibition on prisoners voting imposed stricter standards upon eligibility to vote than the Constitution imposes upon eligibility to stand for election to be a senator or member of the House of Representatives. Section 44 of the Constitution provides that anyone serving or facing a sentence of one year or longer is disqualified from standing for federal election or from remaining in Parliament.

East Australian Pipeline Pty Limited v Australian Competition and Consumer Commission And Australian Competition Tribunal [2007] HCA 44

27 September 2007

The Competition Tribunal had been correct in overruling a decision of the ACCC concerning charges to be fixed for third-party access to a natural gas pipeline, the High Court of Australia has held.

East Australian Pipeline (EAPL) purchased the natural gas pipeline running from Moomba in South Australia to Sydney from the Commonwealth in 1994 for $534.3 million. The regulatory regime required EAPL to establish a system for third-party access to the pipeline within the framework of national competition policy. If the ACCC withheld approval it could approve its own access arrangement. Section 8 of the National Third-Party Access Code for Natural Gas Pipeline Systems sets out the objectives to be considered by the ACCC in determining whether to approve tariffs charged to third parties. The charges are calculated by reference to the capital assets of the pipeline, in particular the initial capital base (ICB). In 1999, EAPL proposed an access arrangement with an ICB value of $666.7 million based on the depreciated optimised replacement cost of the pipeline. In 2003, after various exchanges and revisions, the ACCC ultimately rejected EAPL’s proposed access arrangement and substituted its own, which set an ICB of $545.4 million.

EAPL then applied to the Competition Tribunal for a review of the ACCC’s decision. The Tribunal found that the ACCC had wrongly exercised its discretion by substituting its own access arrangement. It was incorrect and unreasonable for the ACCC to put aside known valuation methods and devise a method which adjusted the optimised replacement cost in a novel fashion after misconstruing section 8.10 of the Code. Section 8.10 deals with the methodology for establishing the ICB for existing pipelines. The Tribunal construed section 8.10 as setting out the 11 factors to be considered in order and that the sequential process mandated by the section was important to the integrity of any determination of an ICB. It varied the ACCC’s decision and substituted an ICB of $834.66 million. The ACCC sought judicial review in the Full Court of the Federal Court which concluded that the ACCC had not erred in exercising its discretion in substituting its own access arrangement and utilising a novel method for calculating the ICB. While the Full Court recognised that the ACCC did not use known valuation methods in determining the ICB, it concluded that the ACCC had considered all the factors set out in section 8.10. EAPL appealed to the High Court.

The Court unanimously allowed the appeal and held that the Tribunal was correct in its construction and in its application of section 8.10.

Westfield Management Limited v Perpetual Trust Company Limited [2007] HCA 45

3 October 2007

Westfield is not entitled to use an easement to access two extra shopping malls it has acquired next to the one originally serviced by the easement, the High Court of Australia has held.

Westfield owns Skygarden and Perpetual the adjacent Glasshouse shopping complex. Both face Pitt Street Mall in Sydney’s CBD, while Glasshouse also fronts King Street. It has a private underground laneway running off King Street behind it and stopping at the boundary of Skygarden. Westfield now owns the neighbouring Imperial Arcade and Centrepoint, which also face Pitt Street Mall, and it wants to redevelop all three sites into a single complex. In 1987, in return for Glasshouse granting Skygarden access via its laneway to help keep the then new Pitt Street Mall pedestrian precinct free of delivery vehicles, Sydney City Council allowed the Glasshouse developers to construct a larger building. In 1988, the original owners of Skygarden and Glasshouse agreed to terms for the easement and it was registered under the Torrens system. Westfield now wishes to use the laneway to access all three of its sites from King Street.

In the New South Wales Supreme Court, Westfield successfully sought a declaration that the easement permitted vehicles using the laneway to continue under Skygarden to access driveways, parking spaces and loading docks to be built on the Imperial Arcade and Centrepoint sites. The Court of Appeal allowed an appeal by Perpetual. Westfield appealed to the High Court.

The Court unanimously dismissed the appeal. It said that it was significant that the terms of easement did not use the word “across” in relation to Skygarden but the words “to and from”. It rejected Westfield’s argument that the phrase “for all purposes” encompassed the purpose of accessing Skygarden and from there travelling to some further property. The Court held that the phrase had to be read as part of the longer expression “for all purposes with vehicles to and from [Skygarden] or any such part thereof across [Glasshouse]” and did not include going to and from and across Skygarden.

It also held that Westfield could not use extrinsic material to ascertain the intention or contemplation of the parties to the grant of the easement beyond the terms of the grant itself. The easement was registered but third parties inspecting the register cannot be expected to look for extrinsic material which might establish facts or circumstances existing at the time of registration of the kind relied upon by Westfield. The use of such material is inconsistent with the definitive nature of the Torrens register.

Sophear Em v The Queen [2007] HCA 46

4 October 2007

The use of a secretly recorded conversation with detectives investigating Mr Em in relation to two home invasions did not make his trial unfair, the High Court of Australia has held.

The prosecution case was that Mr Em, armed with a pistol, and another man, carrying an AK47 assault rifle, held up the Logozzo family in Cecil Hills in south-western Sydney on 7 January 2002 just as Joseph and Marianne Logozzo arrived home. During a struggle, Mr Logozzo was fatally shot in the chest with the pistol. Mrs Logozzo ran to his aid and was shot in the hand. The intruders fled. Ten nights later, three men, armed with a pistol, a rifle and a knife, forced their way into a house at nearby West Hoxton and tied up Michael and Beverly Kress, their teenage children Jonathon and Alyson and Alyson’s boyfriend Ramzi Tamer. Numerous items were stolen.

On 24 April 2002, police discovered that SIM cards registered to two people living in a Bass Hill unit had been used in a mobile phone stolen from the Kresses. When they searched the unit, where Mr Em was staying, they found a bag filled with black clothing, a balaclava, ski goggles, cable ties, gloves, grey duct tape and a sheath knife. He admitted the bag was his. He had not previously been linked to either home invasion. At the police station, Mr Em refused to have his interview recorded on video or audio tape or in writing, but allegedly made admissions about the Kress home invasion, including possessing the pistol used there. He refused to say anything about the Logozzo home invasion. Detectives transcribed the interview from memory. In May 2002, the Supreme Court issued warrants authorising detectives to wear covert recording devices. On 15 May, the detectives took Mr Em to a park to talk about the home invasions. He identified from photographs the gun used in the shooting but denied involvement in the Logozzo home invasion. On page 25 of the 40-page transcript, one detective is recorded telling Mr Em that he might feel better if he told them what happened and that “it’s not as though we’re going to slap the handcuffs on you and take you away, otherwise we’d be at the police station if we were gunna do that, wouldn’t we?” Mr Em proceeded to give a detailed account of what occurred at the Logozzo house. Justice Bruce James excluded part of the evidence of that account but admitted some of it.

At a voir dire in an earlier Supreme Court trial in 2003, Justice Jeff Shaw had excluded the entire 15 May conversation, but the Court of Criminal Appeal overturned that order. In 2004 Mr Em was convicted of murdering Mr Logozzo, assaulting him with intent to rob while armed with a dangerous weapon, and firing a firearm with disregard for Mrs Logozzo’s safety. In 2005, he was sentenced to 25 years’ jail with a non-parole period of 16 years for the first offence, 10 years’ jail for the second, and two years’ jail, backdated to May 2002, for the third. During the trial he pleaded guilty to five counts of robbery with a dangerous weapon for the Kress home invasion and received five concurrent sentences of 12 years’ jail, backdated to May 2003. The 10-year and 25-year sentences commence in 2013. The Court of Criminal Appeal dismissed an appeal and Mr Em appealed to the High Court, arguing that Justice James erred in allowing the first part of the 15 May conversation to be admitted into evidence and that the jury should have been warned about the unreliability of any confessions.

The Court, by a 4-1 majority, dismissed the appeal and held that neither the use of the first part of the 15 May 2002 conversation nor the absence of a specific warning was unfair to Mr Em. Section 90 of the Evidence Act provides that a court may refuse to admit evidence of an admission if, having regard to the circumstances in which it was made, it would be unfair to a defendant to use the evidence. However, the Court held that the way in which the conversation took place did not make the first part of it unfair to Mr Em. It held that the police did not reinforce or contribute to his mistaken assumption that whatever he said could not be used against him. Mr Em knew he was speaking to detectives investigating two home invasions. The Court held that in the circumstances of the conversation no particular warning to the jury was required and that Justice James’s directions adequately explained the issues that jurors were to consider.