S1 E4 New Landmark High Court Ruling Ao Shearman Merger And Nsw Parliament Legislate Euthanasia

Hello everyone and welcome to the Australian Law Student Podcast. I'm your host Oliver Hammond and

I'm joined by my lovely co-host Alex Nielsen. Alex, how are you? I'm good, thanks Oli. How are

you? Yes, I'm very good. Well, after our first episode we had more than 10 listeners. After our

second episode we've had more than 10 listeners and after our third episode hopefully we'll have

more than 10 listeners so we'll be able to continue the podcast to everyone's amazement.

But yeah, I just want to say thank you for everyone's lovely support. If you're a regular

listener or if you're just jumping in, thank you for listening and supporting the podcast. We've

actually had great support overall. And on this week we've had some pretty interesting decisions

out of the High Court. Yep, absolutely. It's not often that the High Court's in the media as much

as it has been in the last couple of weeks, Oli, but it has and it's great timing for us.

Yes, and I think as well with the New South Wales Parliament and in corporate mergers as well,

there's been some big news. And so without further ado, let's get into it. Yeah, so we'll start with

the High Court decision, Oli. So NZYH.

NZYH is the name of the plaintiff. That's an acronym. It's not his real name, obviously.

He was a Rohingya Muslim who had emigrated to Australia in 2014. He was granted a bridging

visa in 2014. Because he's from Myanmar and he's from a persecuted minority in Myanmar,

he had no reasonable prospect of being returned there, even if he wanted to go back for any reason,

for example. So essentially he was stateless and Australia granted him a bridging visa in 2014.

While on this bridging visa, he was granted a bridging visa in 2014. He was granted a bridging visa in 2014.

In 2016, he committed a sexual offence against a child. He was sentenced to an imprisonment

sentence under New South Wales law for five years with a non-parole period of three years and four

months. So he was granted parole in 2018. Upon release, he was taken into Commonwealth detention,

immigration detention under Section 189 of the Migration Act, because he essentially posed a

danger to the Australian community and he was deemed to be an unlawful non-citizen and

per Section 189, the Department of Home Affairs had an obligation to take anyone who was an

unlawful non-citizen into detention. So he applied for a protection visa. He was refused protection

visa by the Department of Home Affairs. And so he brought his case before the High Court

on the question of whether the exercise of detention by the Commonwealth was an improper exercise of their powers by exercising

a power of punishment, which is really a judicial function, per Chapter 3 of the Commonwealth

Constitution. So what came up to question was Al-Khateb, which had decided that Section 189 of

the Migration Act was constitutional in 2005 and it was up for re-question today, well not today,

but in the last couple of weeks in 2023. Yeah, I mean, for those who are current law students or

law students have been in the sort of recent past, Al-Khateb has been

a very important piece of case law that the High Court have handed down, basically ruling that

indefinite detention of people who have either committed crimes or people that

are looking to be deported can be held in that immigration detention. Basically on the idea that

perhaps in the future there may be a foreseeable way to deport the people in indefinite detention,

Al-Khateb.

Al-Khateb was decided 4-3 and so it hasn't withstood the test of time after this judgment

has come down. And I just want to talk about some of the interesting points about this judgment.

Firstly, the judgment was the new Chief Justice, Justice Gagel's first judgment.

And it's a doozy to get on your first one.

It is, it is, it is, it is. And I think, I mean, just to substantiate my claim, I was having a good

discussion with you about the judgment, but I think it's a doozy to get on your first one.

I think it's a doozy to get on your first one.

I was talking to the Chief Justice, Justice Gagel, who was my Administrative Laws Lecturer,

Professor Kinslaw at UNSW, great lecturer. I highly recommend her and her expertise. But she

was talking about the fact that she doesn't think that this is an accident, that perhaps

Gagel has sort of purposely done this to really set a, to set the tone, I think, into his High

Court justiceship, Chief Justiceship. And so I think another really important point is that

the the judgment was also seven seven yes it was a complete majority and it was also a completely

fully joint judgment as well yeah there was no differing reasons all the judges decided um

similarly uh and for the same reasons and i think that's also um i don't know perhaps indicative of

where um the chief justice wants to take the high court well it's a it's a real mark of keeples

court yeah the joint judgment and delivering joint judgments so there's stronger precedent in the

future which is one of the functions of the high court yeah and i think i think it is um it's

interesting because i think justices that were perhaps slightly tedious about overturning um

which has been um sort of good law i suppose for 20 20 years um 20 years plus um that justices such

as um southern steward or justice edelman who are perhaps a bit more tedious um and perhaps think

that it's the parliament's responsibility to to legislate over such issues they've

gone and essentially um uh also along with that majority judgment with with newer justices like

justice beach justice um jago and obviously the chief justice um gagler and so it's a really

interesting decision i think just to look at the psychology of perhaps what's going through

through um the high court at the moment um but i think i think it also um sort of speaks volumes

of this type of decision um that perhaps there's also an element of retrospect that's being looked

at the um the practice of indefinite detention i think

has rightly come under some criticism um uh from uh human rights um lawyers and people of that

vein also interesting to note that two human rights uh commissions one was human rights uh

commission in australia i believe uh where amicus curated to the proceedings yeah so they were

essentially friends of the proceedings um friends of the court and and gave their opinion on the

proceedings yeah uh and they had obviously a strong view that indefinite detention should be

an

um

unusual point about it was that um

initially

This High Court judgment was basically the thing that the key point that was taken down was that individuals who are in indefinite immigration detention, i.e. they're in detention with no foreseeable or with no sort of fixed idea of when they may be released or deported.

If there is no foreseeable chance of deportation, then they should be released from immigration detention.

Now, that is interesting because the court spoke about the fact that it was only applicable to the plaintiff in this instance, NZYQ.

However, the federal government have made the decision to then release several other people in immigration detention as the result of the fact that they're judging these.

People who are in immigration detention also don't have foreseeable futures of release or deportation to other countries.

I think, yeah, I think they, putting political commentary aside, I think that they had no choice, the federal government, by constitutional convention, it would really undermine the separation of powers and the power of judicial review of the court if the government did not listen to the precedent which the High Court had just set.

Yeah.

And if they, I mean...

Strictly speaking, the judgment may only apply on a case-by-case basis, but in reality, the implications of that judgment would mean that the 200 or 160 people in indefinite detention and had no prospect of reasonable prospect of release would be held unconstitutionally.

And so, by convention, the federal government essentially had to do that.

Yeah, and I think what's also another interesting point is that the orders were...

Released very, very quickly after the judgment.

Yes.

And...

Or vice versa.

Yeah, two justices actually kind of didn't like that approach, Justice Jago and Justice...

Gleeson.

Yeah.

And yes, I think I do understand where they're saying, where they're coming from, rather.

And I say that I would like to say that I agree with them, really, because the effect of the judgment or the reason or the orders will have...

Great effect on not only the media and the government, but it's something in the public interest of Australia.

And to release...

And there needs to be policy considerations going forward as a result of the judgment.

And so, to release the orders without the reasons, as Gleeson and Jago...

Sorry, Jago, rather, held, would not be...

Would not achieve the course of justice.

But they released the orders anyway, and they followed the judgment up.

The orders up with the judgment two weeks later.

Yeah, and so...

I mean, there's greater policy concerns that obviously are occurring in Parliament, which, I mean, we won't give our opinions on.

But I think just generally speaking, there's definitely sort of media commentary on the fact that a lot of these people are or have been convicted criminals who have served their time.

And so, as a result of that, there has been in the judgment...

This new idea of preventative detention, whereby people who have had serious criminal convictions, whether that be instances of murder or sexual assault,

or people who are dangerous to the community sort of more generally, that protective detention or preventative detention will be likely something that the government is looking to legislate,

or people who would otherwise be serving indefinite detention, who have committed crimes that are deemed too dangerous to be in the community will still be in some level of detention to protect the wider community.

Yeah.

Now, obviously, though, it's important to note that a lot of...

Well, I don't know if it's a lot, but there is a number of people who were in indefinite immigration detention who weren't actually convicted of any crime or anything.

Well, no serious crime that perhaps warrants protection from the community, but rather are in that because they are stateless and have no realistic place to be deported to.

And I also think it's interesting to sort of weigh up government interest.

This idea of there no longer being indefinite detention perhaps, I think, incentivises government more to work deportation deals with other countries.

And I think that's another really important idea of, well, if Australia isn't going to have these people, so where do we send them?

They obviously can't be off in detention.

So it's now, I think, up to the diplomats and the diplomatic community to perhaps work out deals with where we can send these people who are judged not to be suitable as Australian citizens and Australian residents.

It was interesting that in the judgment, in the third last paragraph, the High Court even gave two...

Two policy or two fact scenarios that would arise that would mean that the case that they decided in ZYQ would not apply.

So, for example, if there was a law that provided for preventative detention of someone who presented an unacceptable risk of reoffending, that would be completely separate and that would not come under the ambit of ZYQ.

Or if, for example, someone who had been released as a result of ZYQ and then a reasonable prospect of them being deported or removed from Australian society.

Did come up, they could then be taken back into detention.

So those two situations are not within the scope of NZYQ.

And it's interesting that the High Court explicitly mentioned that.

Yeah, I think what they're doing is the High Court isn't trying to say, look, we think that these people should be...

Absolutely not.

That's not what the question is.

And free to be in the community.

I think the media at some points has characterized it like that.

But, you know, it's acknowledging that these people may...

They actually pose an unacceptable risk to the community.

However, the way to stop them from doing that is not under the idea that because they cannot be deported, they need to be in some form of indefinite detention.

You know, it was...

I can accept the fact that it was kind of a roundabout solution.

That that's what indefinite detention was inadvertently achieving the purpose of protecting the community from some of these criminals.

But the core purpose of indefinite detention was...

Was the fact that this is the place that you go if you don't have somewhere to be deported to.

And so, with that in mind, I think that it'll be interesting to see how this develops legislatively in Parliament.

There have been calls for Parliament to be extended a couple of days during the Christmas period to pass legislation through and all that sort of stuff.

And so, definitely stay tuned.

Alex and I will follow this one quickly.

But moving on.

Alex is going to talk about...

A recent merger that's...

Am I, Ollie?

Yeah, so A&O Shearman is what they're calling it.

Allen & Overy, the British magic circle firm, are merging with Shearman Sterling, the white shoe firm from the USA.

So, this is not really new news, but it's still worthy to talk about.

I believe October.

Yeah, it was around October and the merger is obviously still going through.

But it was in October that the merger was approved.

No, I think it was just announced.

I think it was announced.

And I think it might have been approved via the relevant authorities or whatever.

But yes, you expect to see something on the badges of Allen & Overy.

Yeah.

So, it's an interesting one because law firms continuously and more so than they were yesterday

are always concerned about market share and profit and where their business is going to come from.

And so, especially post-Brexit, a lot of...

I guess the ease of access that British firms could get to the European market has probably dried up a little bit.

And so, from a British perspective, from Allen & Overy's perspective,

I guess it makes sense to expand into the American market and get a share of the American market.

It really just creates an empire across the Atlantic, really, both an American and British law firm.

Yeah.

For what it means for Australians, it probably means that a bit of their market share in Australia,

they might have more resources to put into Australia.

But equally, they focus...

This might be taken off Australia because now they have more markets to focus on.

Yeah.

So, what that actually means, I'm not too sure and I won't comment on, but it's an interesting thing to consider.

Well, I think it is interesting in terms of the Australian context.

I mean, for those who don't know, with Australia's domestic law market,

the Australian domestic firms have a very, very strong grip on clients and on business.

Herbert Smith Freehills, Clayton Oates, Allen & O...

Sorry, Allen's Linklakers now.

Gilbert & Tobin, Ashurst, Coors, Minters, Ellison, Mills, Oakley.

All these domestic firms have had a long time to be in Australia and build up that client base.

And I think as a result of that, when the international firms, the international players,

in terms of the big British firms, the big US firms come knocking,

people and businesses and that sort of stuff don't necessarily...

They're not necessarily as enticed or as wooed.

And so, as a result of that, British and American firms, I think, do struggle a little bit

to sort of gain a bit of a foothold in the Australian market.

Now, what I'm saying...

I'm absolutely not saying that they're not good firms or anything like that.

I think the opposite.

I think they provide a very good foothold for young Australian lawyers to explore the world

and get involved in really big international law deals.

But I still think...

I think it's an important thing to recognise that in terms of the Australian market,

it's very unique in terms of other jurisdictions where these big American-based and British-based

who have gone international, when they come knocking, usually big business sort of gets a bit wooed by them.

And that, for better or for worse, I think, is now going to be the case with...

even more the case with the recent merger,

with now the British and American influence with those two.

So, it's going to be interesting to see how it pans out.

Yeah, definitely a great opportunity for all those involved.

And it definitely broadens the horizons of both firms,

especially for Australians who may be involved.

It definitely opens up the American market,

which is a little bit closed off to Australians as compared, rather, to the British market.

But yeah, good to see.

And the last piece of legal news,

Alex and I are going to be talking about...

some recent legislation...

legislation that has been passed by the New South Wales Parliament.

New South Wales is the last jurisdiction in Australia

to adopt voluntary assisted dying or euthanasia laws,

whereby people who have a terminal illness,

who are going to pass away within six months,

after permission from two doctors,

will be able to commence euthanasia procedures.

Or if they are, I think, within 12 months and having a neurodegenerative disease.

Yeah, similarly.

I think an interesting point in all of this is that New South Wales is often sometimes

the sort of latter jurisdiction to adopt sort of the sort of social changes within society.

Not only social changes,

but there's a lot of little...

archaic niches about criminal law as well.

Yeah, yeah, yeah, yeah, yeah.

Oh, sorry, New South Wales criminal law as well.

Yeah, New South Wales, especially in comparison to perhaps Victoria or other jurisdictions.

Very common law heavy jurisdiction.

Yeah, yeah, yeah.

And so, yeah, it'll be interesting to see how that pans out.

I imagine legislation in the future will continue to relax that,

because it is quite a strict procedure,

especially in comparison to other jurisdictions.

And another interesting thing is that doctors that wish to conscientiously object,

against such procedures,

so if a doctor finds it a problem to aid in the assisted dying or the euthanasia of a patient,

they're allowed to conscientiously object,

which is different in some jurisdictions.

And they're also...

However, they're not allowed to block that patient

from seeking other medical advice from other doctors.

So, you know, if the current doctor that you're seeing, for example,

is just a conscientious objector

Yeah.

for religious reasons or for personal reasons or for whatever it might be,

searching medical advice from another doctor that perhaps...

Yeah.

Okay, so it's interesting.

And I think there's an interesting point...

Yeah, yeah, so an interesting...

...that's coming out of the federal court...

Yeah, so on top of all this, the federal court on the Thursday, the 30th of November,

which is today...

Yeah.

I don't know when this will come out, but today have clarified part of the law.

So, the Commonwealth Criminal Code Act makes it a defense for someone to use a carriage service,

such as a phone, email, Zoom, any service, anything like that,

Zoom, any sort of...

Web service.

Yeah, any sort of web carriage service.

Letter?

Yeah, letter, I guess, as well counts, to counsel or incite another into committing suicide.

So, what doctors wanted to know was, does this apply for voluntary assisted dying legislation?

That is...

And voluntary assisted dying advice, yeah, doctor's counsel that is given over the phone or on telehealth.

Yeah.

And the federal court has decided, yes, it does.

Yeah.

So, if you were going...

If you're a doctor and consulting someone who is in the process of seeking voluntary assisted dying

and they consult you, you can't do it over the phone.

Yeah, you can't do it over telehealth or other carriage services.

You have to do it in person to get permission.

Yeah, otherwise, it will be under federal law.

An interesting consequence...

Sorry, yeah.

I just want to say an interesting consequence of this is that even if the state legislation

for example, New South Wales legislation does allow it, the federal legislation takes precedence.

Yeah, yeah.

And so...

Section 108, right?

Yeah.

Constitution.

So, the federal legislation will...

For example, if...

Let's make up a new state of Australia, Oli.

Say, New Zealand.

Say, New Zealand becomes the state of Australia and the state of New Zealand legislates that

a doctor can give this advice over the phone, the federal law will take precedence and say,

no, it can't.

Yeah, yeah.

Not that that would happen, but an interesting point of law.

Yeah.

It is an interesting point of law.

So, Alex, without further ado, let's wrap it up here.

Yep.

It's been a good episode.

It's been a pleasure, Oli.

It has been a pleasure.

There's been some great legal news over this week and tune in next week for some more legal

news if there is any.

And next week, we're going to be sitting down with a criminal lawyer from Victoria.

Very exciting stuff, Oli.

We're going to get our all things criminal.

We're going to get our criminal fix and so I'm going to be asking him some hard-hitting

questions.

So, stay tuned for that one.

And on that note, thank you for listening.

Thank you.