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High Court hands down two decisions

The High Court has handed down decisions in Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan OR Estate Group) & Ors [2025] HCA 6 and Bogan & Anor v The Estate of Peter John Smedley (Deceased) & Ors [2025] HCA 7

March 12, 2025

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  • Nikollaj v R - NSW Caselaw

    [3] The present is an extreme case. As the reasons of Yehia J demonstrate, while cause has been shown, the unacceptable risk test remains a significant hurdle for the applicant. The applicant presents a risk of committing a serious offence and of failing to appear. Against those risks, a refusal of bail will result in his detention, without conviction for a period approaching five years. That is a delay before trial of a length well beyond the ordinary. It is put into some context by what was said by Sperling J, over 20 years ago, in R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365 at [9], where his Honour observed that “[t]he prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights”.
     

  • AI-Powered Lawyering: AI Reasoning Models, Retrieval Augmented Generation, and the Future of Legal Practice by Daniel Schwarcz, Sam Manning, Patrick Barry, David R. Cleveland, J.J. Prescott, Beverly Rich :: SSRN
     

  • The Limits of Judicial Power to Interpret Legislation - Lisa Burton Crawford

    This article reconsiders the limits of judicial power to interpret legislation. It is said that Australian courts have no power to choose the meaning of legislation. But that claim is inconsistent with other aspects of Australian constitutional law, and the standard account of vagueness. The article proposes two ways of reconciling this tension. The first is to rethink the scope of judicial power and recognise that courts have some authority to contribute to legislative content. The second is to rethink the scope of legislative power and recognise that there are some limits on the power of Australian Parliaments to enact vague laws. The article concludes that both are plausible, and that the most compelling resolution involves some element of each.
     

  • Six Myths of Judicial Independence - Dr Joe McIntyre

    This article argues that our understanding of judicial independence is beset with a range of false myths that distort our use of that concept—both in its scope and its limits—in a way that is potentially dangerous to the good administration of justice. The continuance of these myths allows other actors to deploy the rhetorical force of ‘judicial independence’ to cloak the collateral values they seek to advance. By directly exposing the mythical nature of these ideas, this article shows that behind the apparent neutrality of concepts of independence, accountability and judicial method, are highly contested issues of political power and control that are better directly acknowledged. In establishing the six myths of judicial independence, this article draws upon the founding events in the evolution of our modern concept of judicial independence from early 17th century England. It then proposes a counter narrative for how we can better understand judicial independence as a manifestation of structural judicial impartiality. In the final section of the article, I use this framework to help identify potential threats to judicial independence in contemporary Australia, and potential responses available to the judiciary.
     

  • ‘By 2030, we will be looking at a failed Legal Aid system.’ The first legal aid private practitioner census paints a concerning picture of the future. - Law Society Journal
     

  • Why the Commonwealth of Australia has not had a surplus since 1908 - Anne Twomey - YouTube

    The framers of the Commonwealth Constitution realised they were establishing a federation with high levels of vertical fiscal imbalance. They tried to compel the Commonwealth to transfer money to the States through section 87 (requiring three-quarters of the revenue from customs and excise duties to be transferred to the States) and section 94 (requiring the transfer of the surplus to the States).

    This video explains why those provisions were included in the Constitution, and how they were thwarted and failed to achieve their intended outcome. One consequence has been that, at least from a constitutional point of view, there has been no Commonwealth surplus since 1908.
     

  • The Defence of Mental Impairment – What to do and when –Think Foley's – Apple Podcasts

    In This session Tim Marsh, Maddie Lees & Thomas Bell provides a detailed guide on handling cases involving the defence of mental impairment in criminal proceedings. It also includes case studies and references to relevant legal provisions and practice notes to guide practitioners through the process of defending clients with mental impairments.
     

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