Latest Simon Steward reversal … 6-0 finding by the High Court … Fourth time on the outer … What went wrong? … Selection process not up to scratch … Plus, the inquiry into Brother Scott’s multiple ministries … Fortunately, a retired member of the Saloon is available for the heavy lifting … Max Shanahan reports 

HH Simon Steward has suffered his fourth squelching at the hands of his brothers and sisters on the High Court. 

While Steward’s three previous reversals from his time on the Federal Court were in tax – his area of speciality – the latest exposed his shortcomings in administrative law and judicial review. 

In a 2020 decision, a Federal Court majority composed of Steward and Darren Jackson (with Michael Wigney in dissent) ruled that Narada Nathanson, whose visa had been cancelled under the Migration Act, had been denied procedural fairness when the AAT failed to afford him the opportunity to respond to ministerial submissions, and misled him as to the effect of changes in Ministerial Directions that impacted on the assessment of his claim. 

However, both judges found that – despite this denial of a “fundamental right” – there was no jurisdictional error as Nathanson had been unable to point to any evidence or submissions he could have made that would have resulted in the “realistic possibility of a different outcome”.

This reasoning didn’t hold weight with the High Court. While the appeal was duly upheld 6-0, the Saloon split on the question of the onus for materiality. 

The plurality of Kiefel CJ, Keane and Gleeson JJ plumped for the reasoning in Wigney’s dissenting judgment, while others went their own ways. 

Nevertheless, as was noted on the AUSPUBLAW blog, “one obvious implication of Nathanson is that a denial of procedural fairness in the form of a denial of a fair opportunity to be heard will almost always be material and jurisdictional”. 

Steward’s overturned tax decisions concerned whether there was a privilege against disclosure to the ATO of assets on the ground of self-incrimination; and whether interest is payable by the commissioner on an amended GST return (see Justinian’s report here). 

A more recent rebuff from upstairs concerned Steward’s thinking in the backpacker tax case. 

So far, all of Steward’s reversals, bar one, have been unanimous – hardly a ringing endorsement. 

While being overturned is a fact of life for any judge – and Steward has had his fair share of Federal Court judgments endorsed by the Saloon – the strenuous lobbying efforts on his behalf by conservative forces in Melbourne may not have produced the optimum selection outcome. 

Peter Costello was overheard explaining to a companion over lunch in Melbourne that Steward was appointed to the High Court because the government wanted someone “who is reliable”. 

The Financial Review had a perspective on the extent of this reliability in an article headlined, “Why are so many of this judge’s decisions being reversed?” 

Meanwhile, former High Court judge Virginia Bell has been handed the delicious task of trying to make sense of the facts, circumstances and implications of Scott Morrison’s solo circumnavigation of the cabinet table. 

Whether any comprehensible logic can be drawn from Brother Scott’s constitutional caprice might also be a feature of the former TV barrel girl’s report. 

The inquiry will examine and report on the “facts and circumstances” surrounding the appointments, as well as the implications for the accountability of the executive to parliament and any potential impacts on public confidence in government. 

The practices and processes relating to the appointment of ministers under ss 64 and 65 of the Constitution will also be looked at. 

Significantly, Bell will be empowered to “recommend any procedural or legislative changes which would provide greater transparency and accountability.”

The terms of reference are here. 

The Hon Bell is currently seeking public submissions. 

Public servants will be required to front up to the inquiry if required, but key political players – Mr Morrison, no less – will not be compelled to appear. 

In announcing the inquiry, Anthony Albanese gave a none too subtle message to any shy and (shortly) retiring former Liberal Prime Ministers: 

“I would find it extraordinary if anyone refused to talk to a former High Court judge who is, I think, beyond reproach.” Though as has become apparent, extraordinary actions are no bar for Morrison.

Greens justice spokesperson David Shoebridge has called for the inquiry to be expanded to cover “all potentially inappropriate uses of ministerial and cabinet direction” – specifically Morrison’s Cabinet Office Policy Committee, of which he was the only listed member.

Having already gorged themselves on Morrison’s own stupidity, the government will likely let Shoebridge’s suggestion slide – dessert is yet to come, with Bell anticipated to deliver the former PM a solid shellacking when she reports back by November 25.