JUSTIN GLEESON SC COUNSEL AND ARBITRATOR

Transcription

1 JUSTIN GLEESON SC COUNSEL AND ARBITRATOR FELLOW OF THE CHARTERED INSTITUTE OF ARBITRATORS. FELLOW OF ACICA. FELLOW OF THE AUSTRALIAN ACADEMY OF LAW. MEMBER OF THE PERMANENT COURT OF ARBITRATION, THE HAGUE. ABOUT JUSTIN GLEESON BANCO CHAMBERS Level 9 Chifley Tower 2 Chifley Square Sydney, NSW 2000 Australia Chambers: Mobile: justin.gleeson@banco.net.au Clerk: Jeh Coutinho Chambers: Mobile: clerk@banco.net.au Justin has had over 30 years legal experience, as solicitor ( ), counsel (1989 onwards) and Senior Counsel (2000 onwards). He was the founding head of Banco Chambers Sydney ( ). Most recently, he was the 10 th Solicitor-General of the Commonwealth of Australia ( ). He is a Fellow of the Australian Academy of Law, a Fellow of ACICA and a Fellow of the Chartered Institute of Arbitrators and a Member of the Permanent Court of Arbitration. From 2017, he has returned to practice at the private bar, specialising in international law, international arbitration, constitutional law, appellate law and select commercial cases. He is available to appear as counsel, act as advisor or sit as arbitrator or expert determiner, in both domestic and international matters.

2 APPEARANCES IN INTERNATIONAL COURTS AND TRIBUNALS As Solicitor-General of the Commonwealth of Australia between 2012 and 2016, Justin advised on numerous international law issues and was joint counsel for Australia in proceedings including: International Court of Justice 2014: Timor-Leste v Australia, International Court of Justice proceedings, Questions relating to the Seizure and Detention of Certain Documents and Data. 2013: Australia v Japan, International Court of Justice proceedings, Whaling in the Antarctic. CURRENT RETAINERS IN THE INTERNATIONAL AND DOMESTIC ARBITRATION SPACE Justin is currently briefed as counsel in various international investor-state disputes for foreign entities. He is the appointed Chair of a Panel of three to inquire and report on certain matters for a major public institution in Australia, and as an expert assessor in respect to an international dispute. He is retained as counsel in an expert determination process over the construction of a major infrastructure project in Australia and as counsel in various commercial arbitrations. Inter-State arbitration 2015: Timor-Leste v Australia Arbitration under the Timor Sea Treaty (PCA case ). 2013: Timor Leste v Australia Arbitration under the Timor Sea Treaty (PCA case ). Inter-State conciliation 2016: Timor-Leste v Australia, Compulsory Conciliation under the United Nations Convention on the Law of the Sea (PCA ). Investor-State arbitration 2015: Phillip Morris Asia Limited v Australia, Arbitration under the Hong Kong-Australia Business Investment Treaty concerning Tobacco Plain Packaging Legislation (PCA ). 2

3 APPEARANCES IN THE HIGH COURT OF AUSTRALIA As Solicitor-General, and at the private Bar, Justin has appeared as leading Counsel in the High Court of Australia in over 80 appeals or original jurisdiction matters across most areas of law, including international or treaty based claims; Australian constitutional law; competition law and regulation; public law; commercial law, taxation and intellectual property; aboriginal land rights; criminal law; and tort and compensation law. Some illustrations follow. International law or treaty-based claims Plaintiff M68 v Minister for Immigration and Border Force and the Commonwealth (2016) 257 CLR 42 whether Chapters I and III of the Commonwealth Constitution permit the Commonwealth to contract and spend in support a regional processing centre for refugee claims located in the Republic of Nauru. CPFC v Minister for Immigration and Border Protection and the Commonwealth (2015) 255 CLR 514 whether the Commonwealth Executive is permitted to take persons onto an Australian vessel in the high seas for delivery to another country. Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31 application of Foreign States Immunities Act 1985 (Cth), codifying customary international law, to registration and enforcement of a judgment given in a Tokyo Court against Nauru. Macoun v Commissioner of Taxation (2015) 257 CLR 519 application of International Organisations (Privileges and Immunities) Act 1963 (Cth), implementing the United Nations Convention on Privileges and Immunities of Specialised Agencies, to taxation liability of an Australian engaged overseas by an international organisation. Plaintiff S-156 v Minister for Immigration and Border Protection (2014) 254 CLR 28 ability of the Parliament to designate Papua New Guinea as a place to which persons seeking refugee protection will be taken for processing of claims. Commonwealth Minister for Justice v Adamas (2013) 253 CLR 43 liability to extradition of a suspect under Australia/Indonesia extradition treaty. Plaintiff M76/2013 v Minister for Immigration and Citizenship (2013) 251CLR 322 whether the Migration Act 1958 (Cth) authorises continued detention of an unlawful non-citizen where the prospects of removal to another country are low. Maloney v The Queen (2013) 252 CLR 168 whether the Racial Discrimination Act 1975 (Cth), implementing the International Convention on the Elimination of All Forms of Racial Discrimination, prohibits domestic legislation restricting the consumption of alcohol in primarily indigenous communities. TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 252 CLR 168 compatibility with the Commonwealth Constitution of the International Arbitration Act 1974 (Cth). P.T. Garuda Indonesia Ltd v ACCC (2012) 247 CLR application of Foreign States Immunities Act 1985 (Cth), codifying customary international law, to activities of a foreign airline. Australian Constitutional law Cunningham v Commonwealth of Australia (2016) 90 ALJR whether changes to Parliamentary retiring allowances contravene the takings clause of the Commonwealth Constitution (s 51(xxxi)). 3

4 Murphy v Commonwealth Electoral Commissioner (2016) 90 ALJR whether provisions of the Commonwealth Electoral Act 1918 (Cth) closing electoral roles seven days after issue of writs for an election contravene the requirements of direct choice by voters under the Commonwealth Constitution. Bell Group N.V. (in liq) v Western Australia (2016) 90 ALJR 655 whether state legislation for a special scheme of priorities in a company liquidation is inconsistent with Commonwealth Taxation legislation under Commonwealth Constitution (s 109). North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 Constitution, under the Kable principle, of legislation of the Territory permitting the taking into custody of persons for short periods without arrest or suspicion of crime. McCloy v New South Wales (2015) 257 CLR 178 compatibility with the Commonwealth Constitution, under the Lange principle, of State law restricting political donations. Duncan v New South Wales (2015) 255 CLR 388 compatibility with Commonwealth Constitution of State law permitting cancellation of mining licenses without compensation. Queensland Nickel Pty Ltd v Commonwealth (2015) 255 CLR 252 Constitution (s51(ii) and s 99) of Clean Energy Legislation governing nickel producers. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171 whether a State Parliament can create a body corporate which is not a constitutional corporation under the Commonwealth Constitution (s 51(xx)). Kuczborski v Queensland (2014) 254 CLR 1, Constitution of State statute restricting motor-cycle gangs. Williams v Commonwealth of Australia (No 2) (2014) 252 CLR compatibility with the Commonwealth Constitution of remedial legislation following Williams v Commonwealth of Australia (2012) 254 CLR 28. Attorney-General for Northern Territory v Emmerson (2014) 252 CLR Constitution of Territory legislation authorising civil forfeiture of property. Australian Electoral Commission v Johnston (2014) 251 CLR 463 validity of Western Australia 2013 Senate election. Commonwealth of Australia v Australian Capital Territory (2013) 250 CLR 441 whether a law of the Territory permitting same-sex marriage is inconsistent with Marriage Act 1961 (Cth) under the Commonwealth Constitution (s 109). Fortescue Metals Group Ltd v Commonwealth of Australia (2013) 250 CLR compatibility with the Commonwealth Constitution (s52(i), 91 and 99) of minerals resource rent tax. Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 - Constitution, under the Kable principle, of State law restricting criminal organisations. Betfair Pty Ltd v Racing NSW (2012) 249 CLR 217 compatibility with the Commonwealth Constitution (s 92) of State based fee regimes in the racing industry. Queenbeyan City Council v ACTEW Corporation (2011) 241 CLR Constitution (s 90) of water charges levied in the Territory. 4

5 Competition Law and Regulation Australian Competition and Consumer Commission v Flight Centre Travel Group Limited (2016) 91 ALJR application of price fixing prohibitions to conduct between a principal and an agent. Commonwealth of Australia v Director, Fair Work Building Inspectorate v CMEU (2015) 90 ALJR 113 the principles governing the assessment of civil penalties, particularly agreed penalties. Australian Communications and Media Authority v Today FM (Sydney) (2015) 252 CLR 352 scope of Parliament to authorise a body regulating the media industry to make findings of breach of the criminal law as part of a licensing decision. Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 application of misleading and deceptive conduct provisions of consumer protection law. The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR application of regulatory scheme to enable open access to railway lines in the Pilbara. East Australia Pipeline Company v ACCC (2007) 233 CLR application of regulatory scheme to set capital base for gas pipelines. Commercial, taxation and intellectual property Blank v Commissioner of Taxation (2016) 91 ALJR 14 - whether amounts payable under profit participation arrangements upon termination of employment are assessable to taxation as ordinary income. Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) (2015) 257 CLR application of Income Taxation Legislation to liquidators re monies received prior to assessment. AstraZenecca AB v Apotex Pty Ltd (2015) 257 CLR 356 scope of obviousness/inventive step objection to validity of a patent under the Patents Act 1990 (Cth). Wellington Capital v ASIC (2014) 254 CLR 288 interpretation of deed governing managed investment scheme for compulsory buy-back of units. Howard v Commissioner of Taxation (2014) 253 CLR 83 whether equitable compensation received by a company director formed part of the director s assessable income. International Litigation Partners Pte Ltd v Chameleon Mining NL (2012) 246 CLR whether financial product provisions of Corporations Act (Cth) require litigation funders to be licensed. Andrews v Australian and New Zealand Banking Group Ltd (2012) 247 CLR application of equitable doctrine of penalties to bank exception fees. Australian Securities and Investments Commission v Hellicar (2012) 247 CLR liability of public company directors for release by company to market. Commissioner of Taxation v Bamford (2010) 240 CLR application of Income Tax Legislation to discretionary trusts. Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 interaction of contract law and Trade Practices Act; scope of oppression remedy in company law. Kennon v Spry (2008) 238 CLR 366 scope of powers of Family Court of Australia to make orders affecting beneficiaries of a discretionary trust. 5

6 APPEARANCES IN OTHER AUSTRALIAN COURTS Justin has extensive experience in appearing in the Federal Court of Australia and the State Supreme Courts, on appeal and at trial, across most areas of law, including international law and commerce; constitutional law; competition law and intellectual property; and equity commercial corporations and taxation law. Appearance in 2017 at appellate level include: ACCC v Flight Centre Travel Group Ltd (Full Federal Court) assessment of civil penalties. ASIC v Whitebox (Full Federal Court) overlap of civil penalties and Criminal Code. First Pacific Advisors LLC v Boart Longyear Ltd (NSW Court of Appeal) companies scheme of arrangement class composition. Mineral Resources Ltd v Mesa Minerals Ltd (WA Court of Appeal) permissibility for holding Deed of Company Arrangement. ADDRESSES, BOOKS AND PUBLICATIONS Justin Gleeson is a prolific writer, editor and public speaker. He has delivered over 20 substantial public addresses over the last four years, on matters of international, comparative and domestic law, many of which have been published. Addresses on international law October 2016 The increasing internationalisation of Australian Law, Australian Academy of Law Annual Patron s Lecture (published in (2017) 28 PLR 25-40). August 2016 Australia s recent involvement in International Dispute Resolution: Tobacco Plain Packaging and beyond, address to NSW Supreme Court Annual Judges conference. July 2016 Australia's enmeshment in International Law Dispute Resolution: Implications for sovereignty, Annual Michael Kirby Lecture in International Law, Australian National University (for publication in The Australian Year Book of International Law 2016). June 2016 The internationalisation of Australian Law, launch of International Negotiation and Dispute Resolution series hosted by NSW Young Lawyers (published in The Arbitrator and Mediator, December ). May 2016 Australia s Interests in Investor- State Dispute Settlement under the UNCITRAL framework, address to the Second Annual UNCITRAL Seminar, Canberra. April 2015 International Law and the Australian Constitution, Annual Sir Maurice Byers address to NSW Bar Association (2015) 40 Australian Bar Review 149). September 2013: An Australian Perspective on International Commercial Arbitration: The Challenges and Opportunities, Keynote Address, Hague Conference on Private International Law Conference, Wuhan University, China. Addresses on comparative law May 2017 Sydney PEN Free Voices Lecture, Sydney Writers Festival, Freedom of Expression, United States and Australian perspectives. February 2017 Address to Singapore Academy of Law, Evolving Judicial Attitudes to Executive Power: The United Kingdom, Singapore and Australia. March 2016 Recent Developments in Administrative Law in the United States and Australia, address to Australian Government Solicitor Law Conference, Canberra. 6

7 Addresses on domestic law May 2017 Annual Blackburn Lecture, ACT Law Society, Law, Morality and the Public Trust. November 2015 The Judge, the advocate and the expert witness revisiting the seminal views of Sir Owen Dixon in the modern context, address to the Australian Academy of Forensic Sciences (published in (2016) Australian Journal of Forensic Sciences 366). September 2014 (Un)reasonableness and (Dis)proportionality: the Constitutional underpinnings of one important aspect of the relationship between the Courts and the Parliament/Executive, paper presented to the Public Law Conference, University of Cambridge, September Books Justin is co-editor of three substantial texts: Rediscovering Rhetoric Law, Language and the Practice of Persuasion (Federation Press, 2008, co-edited with Dr R Higgins). Constituting Law Legal Argument and Social Values (Federation Press 2011, coedited with Dr R Higgins). Historical Foundations of Australian Law Volume I Institutions, Concepts and Personalities; Volume II Commercial Common Law (Federation Press 2013, coedited with Dr J Watson, Dr R Higgins and Dr E Peden). QUALIFICATIONS AND EDUCATION 2017 Fellow of ACICA 2016 Fellow of the Chartered Institute of Arbitrators 2015 Member Permanent Court of Arbitration, The Hague 2012 Solicitor-General of the Commonwealth of Australia 2005 Founding Head Banco Chambers, Sydney 2000 Appointed Senior Counsel, NSW Bar 2000 Appointed editor of NSW Bar News 1993, , 2007, 2008, 2012 Member Council of NSW Bar Association 1989 Called to NSW Bar 1985 Admitted as a Solicitor 1985 BCL (Oxon) 1983 LLB (Sydney) First Class Honours and University Medal. First in year BA (Sydney). Majoring in ancient and modern history Higher School Certificate, NSW. First in State. Current: July Forthcoming publications Forthcoming publications include: The Rule of Law and the Crown in Hinton and Williams (eds), The Crown (forthcoming 2017), co-author with Ms C Winnett. Economic Union in Saunders and Stone (eds), Oxford Handbook of the Australian Constitution (forthcoming 2017). 7