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Chetcuti v Commonwealth of Australia [2020] HCA 42

NETTLE J
Date: 26 Nov 2020 Case Number: M56/2020
Constitutional law (Cth) – Powers of Commonwealth Parliament – Naturalisation and aliens – Deportation – Where plaintiff entered Australia in 1948, before commencement of Nationality and Citizenship Act 1948 (Cth) – Where plaintiff born in Malta and entered Australia as a British subject – Where plaintiff became citizen of United Kingdom and Colonies in 1949 and then Malta in 1964 – Whether within power of Parliament to treat plaintiff as an alien within meaning of s 51(xix) of Constitution – Whether plaintiff entered Australia as an alien.

Words and phrases – "alien", "alienage", "aliens power", "allegiance", "Australian independence", "British subject", "citizen", "citizenship", "Crown in right of Australia", "foreign power", "independent sovereign nation", "non-citizen resident British subject", "permanent allegiance", "permanent protection", "Queen of Australia", "sovereign power", "treat as an alien".

Constitution – s 51(xix).

Migration Act 1958 (Cth) – s 501.

Nationality and Citizenship Act 1948 (Cth).

Statute of Westminster 1931 (Imp).

Statute of Westminster Adoption Act 1942 (Cth).

Calidad Pty Ltd v Seiko Epson Corporation [2020] HCA 41

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 12 Nov 2020 Case Number: S329/2019
Patents – Infringement – Where printer ink cartridges embodied inventions claimed in two patents – Where used cartridges acquired by third party and modified for re-use – Where modified cartridges imported into Australia for sale to public – Where patentee alleged infringement of patent rights – Where s 13(1) of Patents Act 1990 (Cth) provides patentee has exclusive rights to exploit invention – Where "exploit" includes make, hire, sell or otherwise dispose of product and to use it – Whether modifications to cartridges constituted impermissible "making" of new product – Whether doctrine that patentee's exclusive rights with respect to product are exhausted on first sale ("exhaustion doctrine") should be accepted – Whether doctrine that implied licence arises on sale of patented goods to purchaser ("implied licence doctrine") should continue to be applied.

Words and phrases – "conditions as to use", "embodying the claimed invention", "essential features", "exclusive statutory rights", "exhaustion doctrine", "exhaustion of rights", "exploit", "implied licence", "implied licence doctrine", "infringement", "invention", "make, hire, sell or otherwise dispose of", "make, use, exercise, and vend", "making", "manufacture", "modifications", "monopoly", "monopoly rights", "patent", "patent rights", "personal property", "product", "repair", "re-use", "single use", "use".

Patents Act 1903 (Cth) – s 62.

Patents Act 1990 (Cth) – ss 2A, 13, 135, 144, Sch 1.

GBF v The Queen [2020] HCA 40

KIEFEL CJ, BELL, KEANE, GORDON, EDELMAN JJ
Date: 4 Nov 2020 Case Number: B18/2020
Criminal practice – Trial – Directions to jury – Where appellant charged in seven counts with sexual offences allegedly committed against complainant half-sister when she was 13 and 14 years old – Where prosecution case wholly dependent on acceptance of complainant's evidence – Where appellant did not give or call evidence at trial – Where trial judge directed jury in unexceptional terms with respect to presumption of innocence and onus and standard of proof – Where trial judge later stated that failure of appellant to give sworn evidence "may make it easier" to assess complainant's credibility ("impugned statement") – Where neither prosecutor nor defence counsel applied for redirection arising from making of impugned statement – Whether impugned statement occasioned miscarriage of justice because its effect was to invite jury to reason to appellant's guilt from his exercise of right to silence – Whether influence of impugned statement weakened because it was comment not direction of law – Whether failure of either counsel to seek redirection weighed against conclusion that integrity of trial compromised – Whether impugned statement ambiguous such that there was no reasonable possibility jury would have felt it open to reason impermissibly.

Words and phrases – "absence of evidence", "contradictory instruction", "directions of law", "exercise of the right to silence", "false process of reasoning", "irregularity", "judicial observation on the facts", "miscarriage of justice", "onus of proof", "presumption of innocence", "proviso", "real chance of acquittal", "reason to guilt by an impermissible path", "redirection", "standard of proof", "sworn evidence".

Criminal Code (Qld) – s 668E(1), (1A).

Deguisa v Lynn [2020] HCA 39

KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN JJ
Date: 4 Nov 2020 Case Number: A4/2020
Real property – Torrens system – Where appellants registered proprietors of land – Where appellants obtained planning approval to subdivide land and build two townhouses – Where present certificate of title for land referred to memorandum of encumbrance which prohibited erection of any buildings other than "a dwellinghouse" and prohibited "multiple dwellings" – Where back-cover sheet of memorandum of encumbrance had typed statement indicating that encumbrance formed part of common building scheme – Where neither memorandum of encumbrance nor present certificate of title identified other lots benefited by restrictive covenants in memorandum of encumbrance – Where s 69 of Real Property Act 1886 (SA) provided title to land indefeasible subject to encumbrances and interests "notified" on original certificate of title of such land – Whether appellants were notified of restrictive covenants in memorandum of encumbrance in accordance with s 69.

Words and phrases – "cancelled certificate of title", "certificate of title", "common building scheme", "encumbrance", "memorandum of encumbrance", "notice", "notified", "notified on the certificate of title", "prudent conveyancer", "purpose of the Torrens system", "Register Book", "restrictive covenants", "search and inspection", "searches of the Register", "sufficiently notified", "title", "title by registration", "title of the registered proprietor", "Torrens system".

Real Property Act 1886 (SA) – ss 51B, 69.

Re Golding [2020] HCA 38

NETTLE J
Date: 21 Oct 2020 Case Number: B35/2020
High Court – Appellate jurisdiction – Application for special leave to appeal – Abuse of process – Where applicant applied for special leave to appeal – Where applicant previously made application for special leave to appeal – Where previous application for special leave refused – Where substance of subsequent application for special leave substantially identical to substance of previous application for special leave – Where no exceptional circumstances identified in subsequent application explaining failure to raise novel issues in previous application – Whether subsequent application for special leave an abuse of process.

Words and phrases – "abuse of process", "application for special leave to appeal", "compelling explanation or circumstance", "exceptional circumstance", "interlocutory application", "res judicata", "same subject matter", "special leave".

Federal Court of Australia Act 1976 (Cth) – ss 24(1A), 25(2).

Judiciary Act 1903 (Cth) – ss 21(1), 34(2), 35(2).

High Court Rules 2004 (Cth) – rr 6. 07, 13. 03.

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN JJ
Date: 14 Oct 2020 Case Number: S71/2020
Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection refused to grant appellant protection visa – Where decision referred to Authority for review – Where appellant's representative supplied Authority with further materials including letter of support from third party which post-dated delegate's decision – Where Authority considered the letter was "new information" but concluded it was not able to be considered under s 473DD – Where Authority assessed new information against criteria in ss 473DD(b)(i) and 473DD(a) but not s 473DD(b)(ii) – Whether s 473DD requires Authority to consider criteria in ss 473DD(b)(i) and 473DD(b)(ii) before considering criterion in s 473DD(a).

Words and phrases – "credible personal information", "exceptional circumstances", "fast track reviewable decision", "Immigration Assessment Authority", "mandatory relevant consideration", "new information", "referred applicant".

Migration Act 1958 (Cth) – Pt 7AA.

The Queen v Abdirahman-Khalif [2020] HCA 36

Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 14 Oct 2020 Case Number: A5/2020
Criminal law (Cth) – Terrorism – Membership of terrorist organisation – Where respondent convicted of offence of intentionally being member of terrorist organisation contrary to s 102. 3(1) of Criminal Code (Cth) – Where s 102. 1 provided "member" of terrorist organisation includes person who has taken steps to become member of organisation – Where respondent detained attempting to travel to Turkey – Where respondent's seized electronic devices contained extremist material produced by and expressing support for Islamic State – Where respondent accessed websites containing practical advice for women travelling to Islamic State-controlled territory – Where expert evidence adduced at trial as to nature, aims and ideology of Islamic State – Where conviction quashed on appeal – Whether Crown required to adduce evidence of process by which Islamic State recruited, inducted and accepted members – Whether trial judge misdirected jury as to physical and mental elements of offence – Whether summing up unbalanced.

Words and phrases – "absence of a constitution or rules of membership", "criteria of membership", "elements of the offence", "Islamic State", "member of a terrorist organisation", "membership process", "nature of terrorist organisations", "organisation", "physical and mental elements", "preparatory or anticipatory acts", "proof of membership", "steps to become a member", "terrorism", "terrorist act", "terrorist organisation", "unbalanced summing up".

Criminal Code (Cth) – ss 100. 1, 102. 1, 102. 3.

Hsiao v Fazarri [2020] HCA 35

KIEFEL CJ, BELL, KEANE, NETTLE, GORDON JJ
Date: 14 Oct 2020 Case Number: M137/2019
Family law – Property settlements – Where respondent husband made gift to appellant wife of ten per cent interest in residential dwelling ("the property") – Where respondent subsequently signed transfer of land giving appellant further 40 per cent interest in the property – Where parties registered as joint tenants then executed deed of gift providing for payment to appellant's siblings if appellant predeceased respondent while they remained joint tenants – Where parties subsequently married then separated after 23 days – Where each party sought orders under s 79(1) of Family Law Act 1975 (Cth) altering interests in property of marriage ("property settlement orders") – Where appellant did not appear at trial so matter proceeded as undefended hearing – Whether primary judge failed to take existing legal and equitable interests of parties into account for purposes of s 79(1) of Family Law Act – Whether primary judge's approach to deed of gift amounted to failure to take material consideration into account – Whether open to primary judge to determine that making of property settlement orders was just and equitable – Whether open to primary judge to assess that appellant made ten per cent financial contribution to acquisition of the property – Whether Full Court of the Family Court of Australia erred in refusing to exercise discretion conferred by s 93A(2) of Family Law Act to receive further evidence on appeal.

Words and phrases – "affirmation", "deed of gift", "demands of justice", "duress", "finality", "financial contribution", "further evidence on appeal", "joint tenants", "just and equitable", "malpractice", "pressure", "property settlement order", "ratification", "unconscionable conduct", "undue influence", "voidable".

Family Law Act 1975 (Cth) – ss 75(2), 79, 93A(2), 94(1).

Family Law Rules 2004 (Cth) – rr 1. 04, 1. 08.

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 14 Oct 2020 Case Number: M140/2019
Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("IAA") – Review by IAA under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection ("Minister") refused to grant appellant temporary protection visa – Where delegate accepted appellant's account as plausible, but found appellant did not hold well-founded fear of persecution based on country information – Where delegate's decision referred to IAA for review – Where IAA affirmed delegate's decision – Where IAA departed from delegate's assessment of appellant's credibility – Where under s 473DB IAA generally required to review fast track reviewable decision by considering review material, and without accepting new information or interviewing applicant – Where under s 473DC IAA may get new information not before Minister and that IAA considers may be relevant, including by inviting applicant to interview – Where under s 473DD IAA must not consider new information unless satisfied there are exceptional circumstances, and that new information was not and could not have been before Minister or is credible personal information – Whether legally unreasonable for IAA to depart from delegate's assessment of appellant's credibility without inviting appellant to interview – Whether appellant's demeanour "new information" within meaning of s 473DC – Whether failure to invite appellant to interview was material to IAA's decision.

Words and phrases – "credibility", "de novo review", "demeanour", "fast track reviewable decision", "Immigration Assessment Authority", "informational gap", "interview", "legal unreasonableness", "material", "materiality", "new information", "review material", "temporary protection visa".

Migration Act 1958 (Cth) – Pt 7AA, ss 473DB, 473DC, 473DD.

Northern Land Council v Quall [2020] HCA 33

KIEFEL CJ, GAGELER, KEANE, NETTLE, EDELMAN JJ
Date: 7 Oct 2020 Case Number: D21/2019
Aboriginal and Torres Strait Islander peoples – Native title – Representative Aboriginal/Torres Strait Islander bodies – Indigenous land use agreements ("ILUAs") – Where s 203BE(1)(b) of Native Title Act 1993 (Cth) confers on representative body function of certifying applications for registration of ILUAs – Where s 203BE(5) prohibits representative body from certifying application for registration of ILUA unless satisfied that all reasonable efforts made to ensure all persons who hold or may hold native title have been identified and authorised making of agreement – Where s 27(1) of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) provides that a Land Council may do all things necessary or convenient to be done for or in connection with performance of its functions – Where Northern Land Council ("NLC") a representative body – Where CEO of NLC signed certificate purportedly as delegate of NLC certifying application for registration of ILUA and stating NLC satisfied that identification and authorisation requirements met – Whether certification function conferred by s 203BE(1)(b) capable of delegation by NLC to CEO – Whether CEO can perform certification function conferred by s 203BE(1)(b) as agent of NLC.

Words and phrases – "Aboriginal and Torres Strait Islander peoples", "agency", "agent", "authorised", "body corporate", "certification", "certification function", "delegability", "delegable", "delegate", "delegation", "identified", "indigenous land use agreement", "Land Council", "native title", "natural person", "necessary or convenient", "power of delegation", "representative Aboriginal/Torres Strait Islander body", "representative body".

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – ss 27, 28.

Acts Interpretation Act 1901 (Cth) – ss 34A, 34AB.

Native Title Act 1993 (Cth) – ss 203BE, 203BK, 203FH.

Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32

KIEFEL CJ, GAGELER, NETTLE, GORDON, EDELMAN JJ
Date: 9 Sep 2020 Case Number: S47/2020
Immigration – Visas – Cancellation of visa – Revocation of cancellation – Where s 501(3A) of Migration Act 1958 (Cth) provides that Minister must cancel visa if satisfied person does not pass character test because they have substantial criminal record and person is serving sentence of imprisonment on full-time basis – Where s 501CA(4) provides that Minister may revoke decision to cancel visa if conditions in s 501CA(4)(a) and (b) are met – Where s 501CA(4)(a) requires that person makes representations in accordance with invitation from Minister – Where s 501CA(4)(b) requires that Minister is satisfied person passes character test or there is another reason why decision should be revoked – Where appellant held visa which was not protection visa – Where appellant's visa cancelled under s 501(3A) and Minister declined to revoke cancellation under s 501CA(4) – Whether Minister obliged to, and failed to, consider whether non-refoulement obligations were owed to appellant when exercising power under s 501CA(4).

Words and phrases – "another reason", "cancellation", "discretion", "fear of persecution", "international law", "mandatory relevant consideration", "non-refoulement", "refugee", "revocation", "substantial criminal record", "sufficient evidence", "visa".

Migration Act 1958 (Cth) – ss 501(3A), 501CA.

Private R v Cowen [2020] HCA 31

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 9 Sep 2020 Case Number: S272/2019
Constitutional law (Cth) – Defence – Military discipline – Where plaintiff charged with assault occasioning actual bodily harm – Where plaintiff and complainant members of Australian Defence Force at time of alleged conduct – Where neither plaintiff nor complainant on duty or in uniform – Where plaintiff charged under s 61(3) of Defence Force Discipline Act 1982 (Cth) – Where s 61(3) provided defence member guilty of offence if engaged in conduct outside Jervis Bay Territory and that conduct would constitute Territory offence if it took place in Jervis Bay Territory – Where plaintiff's conduct also constituted offence under ordinary criminal law and civil courts available – Where plaintiff challenged jurisdiction of Defence Force magistrate to hear charge – Whether s 51(vi) of Constitution supported conferral of jurisdiction by Defence Force Discipline Act upon service tribunal to hear charge.

Words and phrases – "Ch III court", "Ch III protections", "concurrent jurisdiction", "conferral of jurisdiction", "courts martial", "defence force discipline", "defence force magistrate", "defence power", "judicial power of the Commonwealth", "maintaining or enforcing service discipline", "military discipline", "military jurisdiction", "naval and military defence", "pre-ordinate jurisdiction of the civil courts", "service connection test", "service offence", "service status test", "service tribunal", "sufficient connection".

Constitution – ss 51(vi), 68, 71, 80, 106, Ch III.

Crimes Act 1900 (ACT) – s 24.

Defence Force Discipline Act 1982 (Cth) – ss 61(3), 63.

Mokhlis v Minister for Home Affairs [2020] HCA 30

EDELMAN J
Date: 1 Sep 2020 Case Number: S92/2020
Administrative law – Migration – Application for constitutional or other writ – Where plaintiff transferred to Australia from Manus Island for medical treatment – Where plaintiff unlawful non-citizen – Where plaintiff held in immigration detention – Where plaintiff alleges he requested removal from Australia – Where plaintiff seeks declarations, injunctions and writ of habeas corpus in original jurisdiction of the High Court in relation to his detention – Whether remitter to Federal Circuit Court available pursuant to s 44(1) of Judiciary Act 1903 (Cth) – Whether Federal Circuit Court has jurisdiction in relation to relief sought – Where jurisdiction conferred is the same as the original jurisdiction of the High Court "under paragraph 75(v) of the Constitution" – Whether application relates to a "migration decision" for the purposes of s 476(1) of Migration Act 1958 (Cth) – Whether remitter appropriate in these circumstances.

Words and phrases – "ancillary or incidental remedies", "dispute of fact", "instituted or continued", "migration decision".

Constitution – s 75(v).

Federal Circuit Court of Australia Act 1999 (Cth) – s 10(1).

Judiciary Act 1903 (Cth) – s 44(1).

Migration Act 1958 (Cth) – ss 14(1), 189, 196, 197AB, 197AC, 198, 474, 476, 476B, 494AB.

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29

KIEFEL CJ, GAGELER, NETTLE, GORDON, EDELMAN JJ
Date: 13 Aug 2020 Case Number: M160/2019 M165/2019
Industrial law (Cth) – Where Fair Work Act 2009 (Cth) contains National Employment Standards ("NES") – Where NES are minimum terms and conditions that apply to all national system employees – Where NES address paid personal/carer's leave – Where s 96(1) of Fair Work Act provides that employees entitled to "10 days" paid personal/carer's leave per year of service – Where s 96(2) provides that paid personal/carer's leave accrues progressively according to employees' ordinary hours of work – Where s 55(4) provides that enterprise agreement may only include terms not detrimental to employee when compared to NES – Where enterprise agreement provides that ordinary hours of work for employees are 36 hours per week – Where enterprise agreement provides that employees working 12-hour shifts entitled to 96 hours paid personal/carer's leave per annum – Whether "day" in s 96(1) of Fair Work Act refers to one-tenth of equivalent of employee's ordinary hours of work in two-week period ("notional day") or portion of 24-hour period otherwise allotted to working ("working day").

Words and phrases – "10 days", "day", "enterprise agreement", "fairness", "income protection", "minimum terms and conditions", "modern award", "National Employment Standards", "notional day", "ordinary hours of work", "paid personal/carer's leave", "working day", "working patterns", "working week".

Fair Work Act 2009 (Cth) – ss 3, 55, 85, 87, 96, 97, 99, 100, 101, 102, 104, 106A, 106E, 147, 186, 193.

Workplace Relations Act 1996 (Cth) – ss 246, 247, 249.

Queensland v Masson [2020] HCA 28

KIEFEL CJ, BELL, KEANE, NETTLE, GORDON JJ
Date: 13 Aug 2020 Case Number: B63/2019
Negligence – Standard of care – Breach – Where woman suffering severe asthma attack treated by ambulance officers including intensive care paramedic – Where intensive care paramedic elected to administer intravenous ("IV") salbutamol rather than IV adrenaline in initial phase of treatment due to woman's high heart rate and high blood pressure – Where Clinical Practice Manual ("CPM") required that ambulance officers "consider" IV adrenaline – Whether decision to administer IV salbutamol contrary to CPM – Whether treatment fell below standard of care expected of ordinary skilled intensive care paramedic – Whether trial judge's finding that intensive care paramedic made clinical judgment to administer adrenaline "contrary to compelling inferences" or "glaringly improbable" – Whether administration of IV salbutamol supported by responsible body of opinion within medical profession.

Words and phrases – "adrenaline", "ambulance officers", "appellate intervention", "breach of duty of care", "case management guidelines", "clinical judgment", "clinical pharmacology", "clinical practice manual", "contrary to compelling inferences", "emergency medicine", "flowchart", "glaringly improbable", "intensive care paramedic", "negligent omission", "operating in the field", "ordinary skilled intensive care paramedic", "range of reasonable responses", "responsible body of opinion within the medical profession", "salbutamol", "severe asthma", "standard of care", "trial judge's advantage".

Berry v CCL Secure Pty Ltd [2020] HCA 27

BELL, GAGELER, KEANE, NETTLE, EDELMAN JJ
Date: 5 Aug 2020 Case Number: S315/2019
Damages – Misleading or deceptive conduct – Where first appellant induced to give up agreement by respondent's misleading or deceptive conduct in contravention of s 52 of Trade Practices Act 1974 (Cth) – Where appellants sought damages pursuant to s 82 of Trade Practices Act referable to amounts payable had agreement not been terminated – Whether respondent entitled to contend that but for its misleading or deceptive conduct it would have lawfully terminated agreement – Whether presumption against wrongdoers applied – Whether evidence established real (not negligible) possibility that respondent would have terminated agreement by lawful means.

Words and phrases – "balance of probabilities", "counterfactual lawful termination", "deliberate contravention", "evidential burden", "lawful means alternative", "legal burden", "misleading or deceptive conduct", "notice of termination", "presumption against wrongdoers", "real (not negligible) possibility", "recovery of damages for lost commercial opportunities", "reversal of onus of proof".

Trade Practices Act 1974 (Cth) – ss 52, 82.

Lewis v Australian Capital Territory [2020] HCA 26

KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN JJ
Date: 5 Aug 2020 Case Number: C14/2019
Damages – Tort – False imprisonment – Where appellant convicted and sentenced to 12 months' imprisonment served by periodic detention – Where appellant breached obligations of periodic detention – Where appellant liable to arrest without warrant – Where Sentence Administration Board ("Board") required by statute to decide to cancel appellant's periodic detention – Where Board's decision was held invalid for lack of procedural fairness – Where appellant unlawfully imprisoned in full-time detention for 82 days following Board's invalid decision – Where appellant's liberty already qualified and attenuated – Where appellant's imprisonment would otherwise have lawfully occurred – Where appellant awarded nominal damages – Whether award of only nominal damages appropriate – Whether appellant entitled to substantial compensatory damages – Whether vindicatory damages available.

Words and phrases – "aggravated damages", "alternative causes", "but for", "causation", "compensatory damages", "compensatory principle", "counterfactual", "damages", "exemplary damages", "false imprisonment", "lawful authority", "liability", "loss", "material contribution", "nominal damages", "periodic detention", "relief", "substantial damages", "substitutionary remedy", "user principle", "vindication", "vindicatory damages", "wrongful act".

Crimes (Sentence Administration) Act 2005 (ACT) – Ch 5.

Singh v The Queen [2020] HCA 25

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 5 Aug 2020 Case Number: D16/2019
Appeals – Criminal appeal – Death of appellant – Where appellant died after appeal heard – Where appellant sought order quashing conviction and ordering retrial – Whether possible to make order sought – Whether other order appropriate.

Minister for Immigration and Border Protection v CED16 [2020] HCA 24

GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 30 Jun 2020 Case Number: S347/2019
Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection refused to grant first respondent protection visa – Where decision referred to Authority for review – Where Authority ordinarily obliged to consider "review material" provided by Secretary of Department of Immigration and Border Protection ("Secretary") without considering "new information" – Where review material must include material considered by Secretary to be relevant to review – Where review material included identity assessment form – Where Authority notified that s 473GB applied to identity assessment form – Where notification included certificate purporting to certify that disclosure of information or matter contained in identity assessment form contrary to public interest – Where certificate invalid – Where certificate not before delegate at time of making decision under review – Whether certificate "new information" within meaning of s 473DC(1) – Whether certificate a "document" or contained "information" – Whether Authority could be inferred to have considered that certificate may have been relevant to conduct of review.

Words and phrases – "certificate", "document", "documentation or information of an evidentiary nature", "fact, subject or event", "fast track reviewable decision", "identity assessment form", "information", "new information", "notification", "procedural obligation", "protection visa", "relevant", "relevant to the conduct of the review", "review material".

Migration Act 1958 (Cth) – Pt 7AA.

Nguyen v The Queen [2020] HCA 23

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 30 Jun 2020 Case Number: D15/2019
Evidence – Criminal trial – Mixed statements – Where appellant interviewed by police prior to being charged – Where appellant made inculpatory and exculpatory statements during interview ("mixed statements") – Where recorded interview relevant and admissible – Where recorded interview not tendered by prosecution at trial – Whether prosecution's obligation to put case fully and fairly requires tender of records of interview containing mixed statements.

Words and phrases – "admissibility of mixed statements", "admissions", "all available, cogent and admissible evidence", "duty of fairness", "ethical practice", "fair trial", "fully and fairly", "inculpatory and exculpatory statements", "miscarriage of justice", "mixed record of interview", "mixed statement", "obligation to tender", "prosecutorial discretion", "prosecutorial duty", "record of interview", "rule of practice", "speculation by the jury", "tactical decision".

Evidence (National Uniform Legislation) Act 2011 (NT) – ss 59(1), 81, 190.

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