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Gerner v Victoria [2020] HCA 48Before Kiefel CJ, Gageler, Keane, Gordon, Edelman JJ
Constitutional law (Cth) – Implications from Constitution – Where directions made under s 200(1)(b) and (d) of Public Health and Wellbeing Act 2008 (Vic) restricted movement of persons within Victoria – Where plaintiffs sought declarations that directions and s 200(1)(b) and (d) of Public Health and Wellbeing Act were invalid as an infringement of a freedom to move wherever one wishes for whatever reason ("freedom of movement") said to be implicit in Constitution – Where defendant demurred on ground that Constitution did not imply freedom of movement – Whether freedom of movement implicit in federal structure of Constitution – Whether freedom of movement protected by implied freedom of political communication – Whether freedom of movement implicit in s 92 of Constitution.
Words and phrases – "constitutional implication", "constitutional interpretation", "COVID-19", "federal structure", "federation", "freedom of movement", "implied freedom of movement", "implied freedom of political communication", "interstate intercourse", "intrastate intercourse", "political communication", "quarantine", "terms and structure", "text and structure". Constitution – ss 51(ix), 92. Public Health and Wellbeing Act 2008 (Vic) – ss 200(1)(b), 200(1)(d). |
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Peniamina v The Queen [2020] HCA 47Before Bell, Gageler, Keane, Gordon, Edelman JJ
Criminal law – Defences – Provocation – Where appellant killed his wife in circumstances that left it open to find he was angered by belief she had been unfaithful and planned to leave him – Where appellant pleaded not guilty to murder on basis that killing resulted from loss of self-control caused by provocation by deceased – Where appellant contended at trial that state of loss of self-control excited by deceased's conduct in grabbing knife, threatening him with it and cutting his right palm – Where s 304(3) of Criminal Code (Qld) excluded defence of provocation (save in circumstances of most extreme and exceptional character) in case of unlawful killing of accused's domestic partner where sudden provocation "based on" anything done, or believed to have been done, by deceased to end or change nature of relationship or indicate in any way that relationship may, should or will end or change ("to change relationship") – Whether exclusion of defence in s 304(3) confined (save in circumstances of most extreme and exceptional character) to cases where conduct of deceased relied upon as causative of accused's loss of self-control consists of thing done, or believed to have been done, by deceased to change relationship – Whether operation of s 304(3) to exclude defence question of law.
Words and phrases – "based on", "causation simpliciter", "causative potency", "caused by", "domestic killing", "domestic relationship", "elements of the defence", "loss of self-control", "nominated conduct", "partial defence", "provocation", "provocative conduct", "question of law", "sudden provocation", "to change the nature of the relationship", "true defence", "wider connection". Criminal Code (Qld) – s 304(1), (2), (3), (7). |
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Minister for Home Affairs v DUA16 [2020] HCA 46Before Kiefel CJ, Bell, Keane, Gordon, Edelman JJ
Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where applicants engaged registered migration agent to provide submissions to Authority – Where agent fraudulently provided pro forma submissions – Where fraudulent submissions contained personal information relevant to a different person – Where Authority unaware of fraud but aware that submissions erroneously related to another individual – Where Authority disregarded information relating to another individual – Whether agent's fraud stultified Authority's review – Whether Authority's decision was vitiated by agent's fraud – Whether agent's fraud contributed in adverse way to exercise of any duty, function, or power by Authority – Whether Authority's failure to seek corrected submissions containing potentially new information legally unreasonable.
Words and phrases – "agent", "fraud", "fraudulent submissions", "legal unreasonableness", "new information", "personal circumstances", "personal information", "practice direction", "statutory review function", "stultified", "submissions", "vitiate". Migration Act 1958 (Cth) – Pt 7AA. |
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Roy v O'Neill [2020] HCA 45Before Kiefel CJ, Bell, Gageler, Keane, Edelman JJ
Evidence – Admissibility – Trespass – Where appellant charged with breach of Domestic Violence Order ("DVO") – Where DVO included condition that appellant not remain in her partner's presence while intoxicated – Where police attended unit occupied by appellant and her partner for purpose of DVO check – Where police engaged in wider proactive policing operation – Where police knocked on front door and asked appellant to come to door for DVO check – Where police observed signs of intoxication and requested appellant submit to breath test – Where breath test positive for alcohol – Whether evidence of breath test lawfully obtained – Whether police trespassed – Whether common law implied licence permitted police to approach unit and knock – Whether lawful purpose to attend unit.
Words and phrases – "breath test", "coercive powers", "common law implied licence", "Domestic Violence Order", "implied licence to enter private property", "interference with an occupier's possession", "lawful communication with an occupier", "lawful purpose", "police", "proactive policing", "trespass". Police Administration Act (NT) – s 126(2A). Domestic and Family Violence Regulations (NT) – reg 6. |
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Clayton v Bant [2020] HCA 44Before KIEFEL CJ, BELL, GAGELER, GORDON, EDELMAN JJ
Family law – Foreign divorce – Property settlements – Spousal maintenance – Res judicata – Where appellant wife and respondent husband married in Dubai in 2007 and lived partly in Australia and partly in United Arab Emirates – Where wife and husband separated in 2013 with wife and child remaining in Australia – Where wife commenced proceedings in Family Court of Australia seeking parenting orders under Family Law Act 1975 (Cth) ("Act") – Where proceedings later amended to also seek orders for spousal maintenance and property settlement under ss 74 and 79 of Act – Where husband commenced divorce proceedings in Personal Status Court of Dubai ("Dubai Court") – Where ruling of Dubai Court granted husband "irrevocable fault-based divorce" and ordered wife to repay amount of advanced dowry and costs – Where husband sought permanent stay of property settlement and spousal maintenance proceedings on basis of res judicata, cause of action estoppel and/or principle in Henderson v Henderson (also known as "Anshun estoppel") – Where primary judge dismissed application for stay – Where Full Court of Family Court permanently stayed property settlement and spousal maintenance proceedings – Whether ruling of Dubai Court had effect of precluding wife from pursuing property settlement and spousal maintenance proceedings against husband in Family Court by reason of res judicata, cause of action estoppel and/or Anshun estoppel.
Words and phrases – "advanced dowry", "alimony", "Anshun estoppel", "cause of action", "cause of action estoppel", "claim", "claim estoppel", "divorce", "estoppel", "Henderson extension", "irrevocable fault-based divorce", "issue estoppel", "merger", "permanent stay", "Personal Status Court of Dubai", "Personal Status Law", "preclusion", "property settlement", "res judicata", "spousal maintenance". Family Law Act 1975 (Cth) – ss 74, 79. |