In Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166, a majority of the court held that the making of a continuing detention order pursuant to the Criminal Code (Cth), s 105A.7 against a person convicted of terrorist offences is within the judicial power of the Commonwealth and the power of State courts to make such orders accords with the Constitution, Ch III.  Therefore the Supreme Court of a State or Territory may commit a person to prison in the exercise of federal judicial power after determining, by orthodox judicial process, that the person presents an unacceptable risk of committing a terrorist offence if released from custody.

On 24 February the court published its reasons supporting orders made on 6 November last year in Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229.  By majority the court upheld Western Australian laws authorising the closure of State borders against the spread of COVID-19, holding that on their proper construction, sections 56 and 67 of the Emergency Management Act 2005 (WA), when applied to an emergency constituted by a hazard in the nature of a plague or epidemic, comply with the constitutional limitations of the Constitution, s 92 in relation to all aspects of trade, commerce and intercourse between the States.  The court further held that the exercise of the statutory powers to make paragraphs 4 and 5 of the Quarantine (Closing the Borders) Direction (WA) did not raise a constitutional question.

A slew of shareholder class actions was commenced against AMP Ltd in the wake of the Hayne Royal Commission.  All of them were “open class” proceedings, meaning that potential plaintiffs in any one were also potential plaintiffs in all of the others. Each of the lead plaintiffs therefore applied to the Supreme Court of New South Wales to stay the remaining other three.  The result of that application culminated in an appeal to the High Court: in Wigmans v AMP Ltd [2021] HCA 7; (2021) 95 ALJR 305, a majority of the court concluded that there is no “one size fits all” approach when it comes to assessing competing applications to stay open class representative proceedings commenced under the Civil Procedure Act 2005 (NSW). In particular, the court held that there is no rule or presumption, either under that Act or the general law, that the proceeding commenced first in time should prevail; rather, where the defendant’s interests are not differentially affected, the court must determine which proceedings going ahead would be in the best interests of group members.  What may be relevant to that inquiry will vary from case to case.

In DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 95 ALJR 352 handed down on 7 April, Kiefel CJ, Keane, Gordon, Edelman and Steward JJ in a joint judgment held that the principle concerning the “refugee criterion” enunciated in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs 216 CLR 473 has no application to a person who would or could be expected to hide or change their behaviour when that behaviour is not a manifestation of a Convention characteristic.  The court explained the rationale for the principle as being that a person who would otherwise be entitled to protection under the Migration Act 1958 (Cth), s 36(2)(a) will not, and should not, lose that protection if it can be shown that they would or could avoid persecution by sacrificing a protected attribute under the Refugees Convention.  The inquiry under the complementary protection criterion in s 36(2)(aa) requires an assessment of the “necessary and foreseeable consequence[s]” of a person returning to a receiving country.  The assessment of the risk of harm under s 36(2)(aa) does not involve finding a nexus between the harm feared by the non-citizen and their inherent or immutable beliefs, attributes, characteristics or membership of a particular group.

In another migration decision, DVO16 v Minister for Immigration and Border Protection; BNB17 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 95 ALJR 375 handed down on 14 April, the court explained the two ways in which translation errors in a recorded interview between a protection visa applicant and ministerial delegate that is provided in review material to the Immigration Assessment Authority might result in non-compliance with conditions underpinning the Authority’s decision-making power as expressed or implied into the Migration Act, Pt 7AA.  Relevantly, the appeals concerned breach of the implied condition of reasonableness and non-compliance with the Authority’s overriding duty to “review” decisions referred to it.  The court concluded that neither of the potentialities manifested in the circumstances of the two appeals before it.  The errors in the translation of questions and answers given with the assistance of interpreters at each protection interview did not result in the respective decisions of the Authority being affected by jurisdictional error.

A second case handed down on 14 April called for the court to decide whether Australian law encompassed the principle in English common law that a husband and wife, agreeing between themselves to commit an unlawful act, could not be guilty of conspiracy.  The appeal in Namoa v The Queen [2021] HCA 13; (2021) 95 ALJR 396 turned on whether the principle applied to an alleged conspiracy to commit a serious federal offence contrary to the Criminal Code (Cth), s 11.5(1).  Gleeson J, with whom the rest of the court agreed, held that whatever may have been the historical position, there is no longer any principle in Australian common law respecting the single legal personality of spouses and the proper interpretation of s 11.5(1) is not affected by any common law rule that spouses alone cannot conspire.  Her Honour held that the references in s 11.5 to a “person” and “another person” are apt to include two spouses: on the clear language of the Code, a husband and wife are each a “person” and can be guilty of conspiring with each other.

Talacko v Talacko [2021] HCA 15; (2021) 95 ALJR 417  handed down on 12 May involved an examination of the loss and damage suffered by victims of an “unlawful means” conspiracy in order to determine whether a complete cause of action for the tort of conspiracy had been established.  Two categories of alleged loss  were relevant to the appeal:  first, the prevention of the respondents recovering a judgment debt because the judgment debtor had stripped himself of his valuable assets; and second the costs and losses incurred in seeking to enforce the judgment debt in the Czech Republic.  The damage suffered was characterised by the court as loss of the relevant respondents’ rights or chose in action rather than loss of a chance or opportunity.  After deciding that the relevant respondents had suffered loss or damage such that the unlawful means conspiracy was actionable, the court allowed a cross-appeal against the allowance, by the court below, of a 20% discount for the prospect of separate recovery in what were described as “speculative” foreign proceedings against the conspirators.

Also handed down on 12 May, Zhang v Commissioner of the Australian Federal Police [2021] HCA 16; (2021) 95 ALJR 432 considered the validity of three search warrants issued under the Crimes Act 1914 (Cth), s 3E and two ancillary cooperation orders under s 3LA.  The plaintiff, a part-time employee in the office of a member of the New South Wales Parliament, was under investigation by the AFP for alleged foreign intervention offences contrary to the Criminal Code (Cth), s 93.3(1) and 92.3(2).  In proceedings for Constitutional Writs commenced in the court’s original jurisdiction, he challenged the validity of the warrants claiming that they misstated the substance of s 92.3(2) and failed to state the alleged offences with sufficient precision.  Relevantly, the plaintiff argued that communications on a mobile telephone via a private social media chat group was not “covert” behaviour within the meaning of s 92.3(1)(d)(i) and the warrants did not identify the “foreign power” to which the alleged offences related. The court unanimously rejected both arguments, holding that the word “covert” in s 92.3(1)(d)(i) was susceptible of a range of arguable applications involving a spectrum of arguable shades of meaning.  Any necessary reading down of the word, such as requiring an element of nefarious concealment or secrecy did not deprive the warrants of sufficient content or clarity; further they identified the government of the People’s Republic of China as the alleged foreign principal.  A further argument that s 92.3(1) infringed the implied freedom of political communication was held not to arise.

And finally, in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 handed down on 19 May, the issue before the court arose as a consequence of a breach by the Refugee Review Tribunal of an implied condition of procedural fairness. The tribunal had failed disclose to the appellant a notification it had received under the Migration Act 1958 (Cth), s 438. The court was divided about which party bore the onus of proof of establishing materiality.  In joint reasons Kiefel CJ, Gageler, Keane and Gleeson JJ decided that where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review on the ground of jurisdictional error, the onus of proving historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the applicant. Gordon and Steward JJ, with whom Edelman J agreed, held that an applicant for judicial review must identify an error and establish that the identified error could realistically have resulted in a different decision. If the applicant establishes such an error, it is then necessary for the respondent to establish that that error was immaterial – that compliance with the condition could not have made a difference to the decision that was made – in order to establish that non-compliance with the condition did not lead to jurisdictional error.

The next sittings of the High Court will commence on Tuesday, 15 June.