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Glencore International AG v Commissioner of Taxation [2019] HCA 26

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Aug 2019 Case Number: S256/2018
Privilege – Legal professional privilege – Where documents identified by plaintiffs as having been created by law practice for sole or dominant purpose of provision of legal advice to plaintiffs – Where privileged documents stolen from electronic file management system of law practice and disseminated – Where documents obtained by defendants – Where defendants refused to return documents to plaintiffs and provide undertaking not to refer to or rely upon documents – Where plaintiffs sought injunctive relief in equity's auxiliary jurisdiction solely on basis of legal professional privilege – Where plaintiffs did not seek injunctive relief on basis of confidentiality or other area of law – Where defendants demurred on basis that no cause of action disclosed – Whether legal professional privilege operates only as immunity or is also actionable legal right – Whether policy considerations justify creation of new actionable right in respect of documents subject to legal professional privilege.

Words and phrases – "actionable legal right", "basis for relief", "breach of confidence", "cause of action", "common law right", "confidentiality", "development of the law", "immunity", "injunction", "legal professional privilege", "policy of the law", "public interest", "remedy".

Northern Territory v Sangare [2019] HCA 25

Kiefel CJ, Bell, Gageler, Keane, Nettle JJ
Date: 14 Aug 2019 Case Number: D11/2018
Practice and procedure – Costs – Where respondent commenced defamation proceedings against appellant – Where appellant wholly successful on appeal and at first instance – Where appellant sought order that respondent pay its costs – Where Court of Appeal made no order as to costs because respondent's impecuniosity would likely render order futile – Whether appellant entitled to order for costs – Whether impecuniosity of unsuccessful party can alone justify decision to deny successful party its costs.

Words and phrases – "award", "costs", "discretion as to costs", "futility", "impecuniosity", "indemnity", "litigant-in-person", "litigation", "matters relating to costs", "successful party", "unmeritorious litigation", "unsuccessful party".

Northern Territory Supreme Court Act 1961 (Cth) – s 18.

Supreme Court Act 1979 (NT) – ss 14(1), 55(1), 71.

Supreme Court Rules 1987 (NT) – r 63. 03.

Palmer v Australian Electoral Commission [2019] HCA 24

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Aug 2019 Case Number: B19/2019
Parliamentary elections (Cth) – House of Representatives – Counting of votes – Where s 274(2A)-(2C) of Commonwealth Electoral Act 1918 (Cth) provides for indicative two-candidate preferred count in each Division – Where s 7(3) of Commonwealth Electoral Act confers power on Australian Electoral Commission to do all things necessary or convenient for or in connection with performance of its functions – Where practice of Australian Electoral Commission to publish information about indicative two-candidate preferred count for a Division after close of polls in that Division – Whether publication of information for a Division before polls closed in all parts of nation has any demonstrated effect on electoral choices – Whether information inaccurate or misleading – Whether publication constitutes imprimatur to any particular candidate or outcome – Whether publication authorised by s 7(3).

Constitutional law (Cth) – Parliament – Elections – Whether publication of information about indicative two-candidate preferred count prior to close of polls nationally contrary to ss 7 and 24 of Constitution – Whether factual foundation of challenge established.

Words and phrases – "direct and popular choice", "effect on electoral choices", "factual foundation", "imprimatur", "indicative two-candidate preferred count", "necessary or convenient", "partiality", "scrutiny of votes".

Constitution – ss 7, 24.

Commonwealth Electoral Act 1918 (Cth) – ss 7, 274.

Comcare v Banerji [2019] HCA 23

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 7 Aug 2019 Case Number: C12/2018
Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where Australian Public Service ("APS") Code of Conduct ("Code") included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS – Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner – Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment – Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament – Where employment with Commonwealth terminated for breach of Code – Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for "injury", defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of employee's employment – Whether ss 10(1), 13(11) and 15(1) of Public Service Act impose effective burden on implied freedom – Whether burden on implied freedom justified – Whether impugned provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance.

Words and phrases – "adequate in its balance", "anonymous", "apolitical", "APS Code of Conduct", "effective burden", "impartial", "implied freedom of political communication", "integrity", "legitimate purpose", "necessary", "public servants", "public service", "reasonably appropriate and adapted", "suitable", "system of representative and responsible government", "tweets", "unjustified burden".

Fair Work Act 2009 (Cth) – Pt 3. 2.

Public Service Act 1999 (Cth) – ss 10(1), 13(11), 15(1), 33(1).

Safety – Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1), 14.

Victorian Building Authority v Andriotis [2019] HCA 22

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 7 Aug 2019 Case Number: M134/2018
Statutes – Construction – Statutory powers – Mutual recognition – Where s 17(1) of Mutual Recognition Act 1992 (Cth) provides that person registered in one State for occupation entitled to be registered in equivalent occupation in second State where person lodges written notice with local registration authority of second State – Where s 20(1) of Mutual Recognition Act provides that registration in first State sufficient ground of entitlement to registration in second State – Where s 20(2) of Mutual Recognition Act provides that local registration authority of second State "may" grant registration on that ground – Where s 17(2) of Mutual Recognition Act provides that mutual recognition principle subject to exception that it does not affect operation of laws that regulate manner of carrying on occupation in second State, provided laws not based on attainment or possession of some qualification or experience relating to fitness to carry on occupation – Where respondent registered as waterproofer in first State – Where respondent refused registration in second State for non-compliance with "good character" requirement in local Act – Whether local registration authority has discretion to refuse registration – Whether "good character" requirement is law based on "qualification" relating to fitness to carry on occupation.

Words and phrases – "character requirement", "disciplinary action", "discretionary power", "entitlement to registration", "fitness to carry on an occupation", "good character", "local registration authority", "may", "mutual recognition principle", "mutual recognition scheme", "qualification or experience", "registration for an occupation", "residual discretion", "sufficient ground of entitlement to registration".

Acts Interpretation Act 1901 (Cth) – ss 2, 13, 15AA, 33.

Building Act 1993 (Vic) – ss 170, 179, 180.

Mutual Recognition Act 1992 (Cth) – ss 3, 6, 16, 17, 19, 20, 21, 22, 23, 33, 36, 37.

Masson v Parsons [2019] HCA 21

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 19 Jun 2019 Case Number: S6/2019
Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction.

Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child's financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be "parent" within ordinary meaning of word but not under s 60H – Whether s 60H exhaustive of persons who may qualify as "parent" of child born of artificial conception procedure – Whether "parent" used in Family Law Act according to ordinary meaning except as otherwise provided – Whether appellant is "parent" within ordinary meaning – Whether ordinary meaning of "parent" excludes "sperm donor" – Whether appellant is "sperm donor".

Words and phrases – "artificial conception procedure", "complete upon its face", "federal courts", "federal jurisdiction", "implicit negative proposition", "inconsistency", "irrebuttable presumption", "jurisdiction", "matter", "ordinary meaning", "otherwise provided", "parent", "parentage", "parenting orders", "picked up and applied", "power", "presumptions", "regulates the exercise of jurisdiction", "sperm donor", "State jurisdiction", "State legislative power", "status".

Constitution – s 109.

Family Law Act 1975 (Cth) – ss 4, 60B, 60EA, 60G, 60H, 61D, 61DA.

Judiciary Act 1903 (Cth) – s 79(1).

Status of Children Act 1996 (NSW) – Pt 3 Div 1.

Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 19 Jun 2019 Case Number: M137/2018
Corporations – External administration – Receivers and other controllers of property – Priority debts – Where corporation carrying on business solely as trustee created circulating security interest over trust assets in favour of bank – Where receivers and managers appointed by bank realised trust assets and satisfied obligations to bank – Whether surplus proceeds required to be paid in accordance with Corporations Act 2001 (Cth), s 433 – Whether corporation's right of indemnity is property of the company "comprised in or subject to a circulating security interest" within meaning of s 433 – Whether trust assets themselves are such "property of the company" – Whether statutory order of priorities for payment of debts applicable to distribution of surplus proceeds from trust assets among trust creditors – Whether proceeds from exercise of insolvent corporate trustee's right of exoneration to be applied only in satisfaction of trust liabilities to which it relates.

Trusts – Trustees – Right of indemnity – Whether trustee's right of indemnity confers beneficial interest in trust assets – Whether such interest is "property" within meaning of Corporations Act, s 9.

Words and phrases – "beneficial interest", "circulating asset", "circulating security interest", "floating charge", "insolvent corporate trustee", "payment of creditors out of property", "power of exoneration", "PPSA security interest", "priority payments", "property", "property comprised in or subject to a circulating security interest", "property held by the bankrupt on trust", "property of the company", "right of exoneration", "right of indemnity", "taking possession or assuming control of property", "trust asset", "trust liabilities".

Corporations Act 2001 (Cth) – ss 9, 51, 51C, 433, 555, 556, 560.

Personal Property Securities Act 2009 (Cth) – ss 10, 12, 340.

Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [No 2] [2019] HCA 19

Nettle J
Date: 19 Jun 2019 Case Number: D1/2018 D2/2018 D3/2018
Practice and procedure – High Court – Suppression and non-publication orders – Power to make – Where expert evidence and gender restricted evidence of senior males of Ngaliwurru and Nungali Peoples admitted in support of compensation claims in native title proceedings – Whether suppression or non-publication orders in respect of such evidence necessary to prevent prejudice to the proper administration of justice.

Words and phrases – "administration of justice", "gender restricted knowledge", "suppression order".

Judiciary Act 1903 (Cth) – ss 77RD, 77RE, 77RF.

Australian Securities and Investments Commission v Kobelt [2019] HCA 18

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 12 Jun 2019 Case Number: A32/2018
Trade practices – Consumer protection – Unconscionable conduct – Where s 12CB(1) of Australian Securities and Investments Commission Act 2001 (Cth) relevantly prohibited "unconscionable" conduct in trade or commerce in connection with supply or possible supply of financial services – Where respondent provided "book-up" credit to Anangu customers of general store – Where book-up credit allowed deferral of whole or part of payment for goods subject to respondent retaining customer's debit card and personal identification number – Where respondent used debit card to withdraw whole or nearly whole of wages or Centrelink payments shortly after credited to prevent customers having practical opportunity to access monies – Where respondent applied part of withdrawn funds to reduce customer's indebtedness and made remainder available for provision of future goods and services – Where respondent's record-keeping inadequate and often illegible – Where customers vulnerable due to remoteness, limitations on education, impoverishment and low levels of financial literacy – Where book-up system "tied" Anangu customers to general store – Where customers had understanding of basic elements of book-up system – Where withdrawals authorised by customers – Where customers generally supportive of book-up and respondent's business – Where book-up protected customers from cultural practices requiring sharing of resources with certain categories of kin – Where book-up ameliorated effects of "boom and bust" cycle of expenditure and allowed purchase of food between pay days – Whether respondent's conduct unconscionable within meaning of s 12CB(1) of Act.

Words and phrases – "agency", "book-up", "credit", "cultural practices", "demand sharing", "dishonesty", "exploitation", "financial literacy", "humbugging", "inequality of bargaining power", "legitimate interests", "moral obloquy", "passive acceptance", "power imbalance", "special disadvantage", "standard of conscience", "system or pattern of conduct", "transparency or accountability", "unconscientious conduct", "unconscionable conduct", "undue influence", "unfair", "unjust", "unwritten law", "victimisation", "voluntary", "vulnerability".

Australian Securities and Investments Commission Act 2001 (Cth) – ss 12CA, 12CB, 12CC.

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 12 Jun 2019 Case Number: M47/2018
Immigration – Unlawful non-citizens – Detention pending removal from Australia – Where s 189 of Migration Act 1958 (Cth) requires unlawful non-citizen be detained – Where s 196 requires unlawful non-citizen detained under s 189 be kept in immigration detention – Where plaintiff an unlawful non-citizen – Where plaintiff arrived in migration zone using false passport and personal details – Where plaintiff kept in immigration detention since arrival in migration zone – Where plaintiff previously used false personal details – Where plaintiff's identity and nationality not known – Whether ss 189 and 196 authorise plaintiff's detention – Whether ss 189 and 196 constitutionally valid in application to plaintiff.

High Court – Original jurisdiction – Practice – Special case – Drawing of inferences – Where factual basis of questions of law depends on drawing inferences under r 27. 08. 5 of High Court Rules 2004 (Cth) – Where inferences concern likelihood of plaintiff's future removal from Australia – Where prospects of plaintiff's future removal depend on information provided by plaintiff and cooperation by plaintiff – Where plaintiff made false statements and failed to assist and cooperate – Where plaintiff gave inconsistent accounts of personal and family background – Where plaintiff seeks to take advantage of falsehoods and non-cooperation – Whether inferences can be drawn.

Words and phrases – "habeas corpus", "identity", "immigration detention", "inferences", "onus of proof", "prospects of removal", "real prospect", "reasonably foreseeable", "special case", "unlawful non-citizen".

High Court Rules 2004 (Cth) – r 27. 08. 5.

Migration Act 1958 (Cth) – ss 189, 196, 198.

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 15 May 2019 Case Number: M136/2018
Administrative law (Cth) – Administrative Appeals Tribunal – Nature and scope of review – Where appellant's convictions spent under Pt VIIC of Crimes Act 1914 (Cth) – Where Div 3 of Pt VIIC of Crimes Act prohibited Australian Securities and Investments Commission ("ASIC") from taking into consideration spent convictions in deciding to make banning order – Where review of decision of ASIC by Administrative Appeals Tribunal – Where s 85ZZH(c) of Crimes Act provided that Div 3 of Pt VIIC does not apply to Commonwealth tribunal – Whether Administrative Appeals Tribunal entitled to take into consideration on review spent convictions which ASIC was prohibited from taking into consideration.

Words and phrases – "banning order", "fit and proper person", "function of the original decision-maker", "review", "spent conviction", "stand in the shoes of the decision-maker".

Administrative Appeals Tribunal Act 1975 (Cth) – ss 25, 43.

Crimes Act 1914 (Cth) – Pt VIIC, ss 85ZM, 85ZV, 85ZW, 85ZZH(c).

National Consumer Credit Protection Act 2009 (Cth) – ss 80, 327.

Spence v Queensland [2019] HCA 15

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 15 May 2019 Case Number: B35/2018
Constitutional law (Cth) – Powers of Commonwealth Parliament – Federal elections – Severance – Where s 51(xxxvi) in application to ss 10 and 31 of Constitution conferred legislative power on Commonwealth Parliament with respect to federal elections – Where Commonwealth Parliament enacted s 302CA within Div 3A of Pt XX of Commonwealth Electoral Act 1918 (Cth) – Where s 302CA relevantly conferred authority on person to make, and on "political entity" to receive and retain, gift not prohibited by Div 3A provided that gift or part of it was "required to be, or may be" used for certain purposes relating to federal elections – Where s 302CA provided for displacement of such authority in circumstances including where State or Territory electoral law required gift or part of it to be kept or identified separately to be used only for purpose of State, Territory or local government election – Whether Commonwealth legislative power with respect to federal elections exclusive or concurrent – Whether s 302CA within scope of Commonwealth legislative power with respect to federal elections – Whether possible to sever s 302CA to preserve part of its operation within scope of Commonwealth legislative power.

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Gifts to political parties – Where Queensland Parliament passed amendments to Electoral Act 1992 (Qld) and Local Government Electoral Act 2011 (Qld) prohibiting property developers from making gifts to political parties that endorse and promote candidates for election to Legislative Assembly and local government councils – Whether Queensland amendments inconsistent with s 302CA or framework of Pt XX of Commonwealth Electoral Act – Whether s 302CA invalid for infringing principle in University of Wollongong v Metwally (1984) 158 CLR 447; [1984] HCA 74.

Constitutional law (Cth) – Implied freedom of communication about governmental and political matters – Where amendments to Electoral Act 1992 (Qld) substantially replicated provisions in Election Funding, Expenditure and Disclosures Act 1981 (NSW) upheld in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 – Whether amendments invalid for infringing implied freedom.

Constitutional law (Cth) – Relationship between Commonwealth and States – Doctrine of inter-governmental immunities – Whether implication expounded in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; [1947] HCA 26 operates reciprocally to protect States and Commonwealth from impermissible interference by law of one polity with operations of government in another – Whether s 302CA invalid for contravening Melbourne Corporation principle – Whether Queensland amendments invalid for contravening Melbourne Corporation principle.

Words and phrases – "bare attempt to limit or exclude State power", "concurrent power", "electoral expenditure", "electoral matter", "exclusive power", "federal elections", "federalism", "immunity from State laws", "incidental", "inconsistency", "inter-governmental immunities", "political entity", "political party", "required to be, or may be, used for the purposes of incurring electoral expenditure, or creating or communicating electoral matter", "severance", "State elections", "structural implication", "sufficient connection".

Constitution – ss 7, 9, 10, 29, 31, 51(xxxvi), (xxxix), 109.

Acts Interpretation Act 1901 (Cth) – ss 13, 15A, 15AD.

Commonwealth Electoral Act 1918 (Cth) – ss 4AA, 302CA, Pt XX.

Election Funding – Expenditure and Disclosures Act 1981 (NSW), Pt 6, Div 4A.

Electoral Act 1992 (Qld) – Pt 11, Div 8, Subdiv 4.

Local Government Electoral Act 2011 (Qld) – Pt 6, Div 1A.

Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) – Pts 3, 5.

Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14

Kiefel CJ, Bell, Keane, Gordon, Edelman JJ
Date: 8 May 2019 Case Number: S140/2018
Aviation – Carriage of passengers by air – Accident – Carrier's liability – Where respondent engaged by appellant to carry out survey using helicopter – Where passenger aboard helicopter killed in crash – Where Pt IV of Civil Aviation (Carriers' Liability) Act 1959 (Cth) applied – Where s 28 provided that carrier liable for damage sustained by reason of death of passenger – Where s 35(2) substituted liability under s 28 for any civil liability of carrier under any other law in respect of death of passenger – Where s 34 imposes time limit on availability of right of action created by s 28 – Where widow, daughter and son of passenger brought claims in tort against appellant and respondent for damages for negligently inflicted psychiatric harm resulting from death of passenger – Where claims brought outside time limit prescribed by s 34 – Whether claims precluded by Act.

Words and phrases – "any civil liability of the carrier under any other law", "by reason of the death of the passenger", "claim", "damage sustained", "Hague Protocol", "in respect of the death of the passenger", "Montreal Protocol No 4", "negligently inflicted psychiatric harm", "tort", "Warsaw Convention".

Civil Aviation (Carriers' Liability) Act 1959 (Cth) – ss 28, 34, 35(2), 37.

Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 8 May 2019 Case Number: S143/2018 S144/2018
Contract – Construction – Dispute resolution clause – Arbitration – Where arbitral clause in deeds provided for confidential arbitration in event of any dispute "under this deed" – Where deeds came into existence against background of claims and threats of litigation made publicly by one party to deeds against others – Where deeds contained releases, acknowledgments and covenants not to sue, and promises not to make further claims – Where deeds contained assurances they were entered into without undue influence or duress – Where appellants brought proceedings alleging breaches of equitable and contractual duties against other parties to deeds – Where appellants asserted they were not bound by deeds because their assent procured by misconduct of other parties to deeds ("validity claims") – Where respondents sought orders that matter be referred to arbitration and proceedings be dismissed or permanently stayed – Whether validity claims subject to arbitral clause.

Arbitration – Parties – Where s 8(1) of Commercial Arbitration Act 2010 (NSW) ("NSW Act") provided that court before which action is brought in matter which is subject of arbitration agreement must in certain circumstances refer parties to arbitration – Where s 2(1) of NSW Act defined "party" to include any person claiming "through or under" party to arbitration agreement – Where trustees and beneficiaries party to arbitration agreement – Where beneficiaries alleged breaches of trust against trustees and knowing receipt against third party companies as assignees of trust property – Where third party companies asserted beneficial entitlement of trustees to property as essential element of defence – Where third party companies sought order that claims against them be referred to arbitration pursuant to s 8(1) of NSW Act – Whether third party companies claiming "through or under" party to arbitration agreement.

Words and phrases – "arbitral clause", "arbitration agreement", "claiming through or under a party", "confidential processes of dispute resolution", "context and purpose of deed", "dispute under this deed", "party", "privity of contract".

Commercial Arbitration Act 2010 (NSW) – ss 2, 8.

Tjungarrayi v Western Australia [2019] HCA 12

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Apr 2019 Case Number: P37/2018 P38/2018
Aboriginals – Native title rights – Extinguishment of rights – Where s 47B of Native Title Act 1993 (Cth) provides that any historic extinguishment of native title rights and interests is to be "disregarded" for purposes of claim for determination of native title rights and interests over vacant Crown land – Where s 47B(1)(b)(i) provides that provision does not apply if relevant area is covered by "lease" – Where s 242(2) relevantly provides that "[i]n the case only of references to a mining lease, the expression lease also includes a licence . . . or an authority" – Where native title claim groups sought native title determinations over land including parcels of unallocated Crown land – Where claim areas intersected with areas covered by petroleum exploration permits granted under Petroleum and Geothermal Energy Resources Act 1967 (WA) or mineral exploration licence granted under Mining Act 1978 (WA) ("exploration tenements") – Where native title right to exclusive possession had been extinguished – Whether exploration tenements were "lease[s]" within exclusion in s 47B(1)(b)(i).

Words and phrases – "declared to be or described as a lease", "disregarded", "extinguishment", "historic extinguishment", "in the case only of references to", "lease", "mineral exploration licence", "mining lease", "native title", "non extinguishment principle", "petroleum exploration permit", "principle of non discrimination", "textual reference".

Mining Act 1978 (WA) – Pt IV Div 2.

Native Title Act 1993 (Cth) – ss 47B, 242, 243, 245, 253.

Petroleum and Geothermal Energy Resources Act 1967 (WA) – Pt III Div 2.

Clubb v Edwards [2019] HCA 11

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 10 Apr 2019 Case Number: M46/2018 H2/2018
Constitutional law (Cth) – Implied freedom of communication about governmental or political matters – Where s 185D of Public Health and Wellbeing Act 2008 (Vic) and s 9(2) of Reproductive Health (Access to Terminations) Act 2013 (Tas) prohibit certain communications and activities in relation to abortions within access zone of 150 m radius around premises at which abortions are provided – Where appellants engaged in communications and activities in relation to abortions within access zone – Whether communications and activities in relation to abortions are communications about governmental and political matters – Whether provisions effectively burden implied freedom – Whether provisions imposed for legitimate purpose – Whether provisions reasonably appropriate and adapted to that purpose – Whether provisions suitable, necessary and adequate in balance.

Constitutional law (Cth) – Implied freedom of communication about governmental or political matters – Severance, reading down and disapplication – Where appellant charged and convicted of offence against s 185D of Public Health and Wellbeing Act 2008 (Vic) – Where it was not contended that appellant's conduct involved political communication – Where substantial overlap with issues raised in proceedings in relation to interstate Act – Whether s 185D able to be severed, read down or partially disapplied so as to have valid operation in respect of appellant – Whether appropriate to proceed to determine constitutional validity of s 185D.

Words and phrases – "access zone", "adequate in its balance", "calibration", "compatible with the maintenance of the constitutionally prescribed system of representative and responsible government", "compelling purpose", "dignity", "discriminatory", "legitimate purpose", "necessary", "partial disapplication", "political communication", "privacy", "prohibited behaviour", "proportionality testing", "protest", "rational connection", "reading down", "reasonably appropriate and adapted", "safe access zone", "severance", "structured proportionality", "suitable", "undue burden", "viewpoint neutral".

Interpretation of Legislation Act 1984 (Vic) – s 6.

Public Health and Wellbeing Act 2008 (Vic) – ss 185A, 185B, 185C, 185D, 185E.

Reproductive Health (Access to Terminations) Act 2013 (Tas) – s 9.

OKS v Western Australia [2019] HCA 10

Bell, Keane, Nettle, Gordon, Edelman JJ
Date: 20 Mar 2019 Case Number: P62/2018
Criminal practice – Appeal against conviction – Application of proviso that no substantial miscarriage of justice actually occurred – Criminal Appeals Act 2004 (WA), s 30(4) – Where jury found appellant guilty of indecently dealing with child under 13 years of age – Where credibility and reliability of complainant's evidence central issue at trial – Where complainant admitted and was alleged to having lied – Where trial judge directed jury not to reason that complainant's lies meant that all her evidence dishonest and could not be relied upon – Where Court of Appeal found direction by trial judge was wrong decision on question of law – Where Court of Appeal found no substantial miscarriage of justice occurred – Whether error in application of proviso.

Words and phrases – "misdirection", "natural limitations of proceeding on the record", "no effect upon the jury's verdict", "proviso", "substantial miscarriage of justice", "sufficiency of evidence to prove guilt", "very significant weight", "weight to the verdict of guilty", "wrong decision on a question of law".

Criminal Appeals Act 2004 (WA) – s 30(4).

Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 20 Mar 2019 Case Number: M129/2018
Criminal practice – Trial – Jury directions – Prasad direction – Where accused charged with murder – Where Prasad direction given over objection at close of Crown case – Where another Prasad direction given at close of defence case – Whether Prasad direction contrary to law and should not be administered to jury determining criminal trial.

Criminal practice – Jury – Reserve jurors – Where one of 13 jurors balloted off to consider response to Prasad direction – Where jury wished to hear more – Where juror balloted off re-joined jury – Where second ballot conducted to reduce jury to 12 jurors again – Where jury delivered verdicts of not guilty of murder and not guilty of manslaughter after second ballot – Whether ballot conducted at time at which "jury required to retire to consider its verdict".

Words and phrases – "fair trial", "fairness to the prosecution", "jury's suggested right to stop the case", "no case submission", "power of the trial judge", "practice of inviting the jury to stop the case", "Prasad direction", "retire to consider its verdict".

Criminal Procedure Act 2009 (Vic) – ss 66, 213, 234, 238, 241.

Juries Act 2000 (Vic) – s 48.

Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8

Kiefel CJ, Bell, Keane, Nettle, Gordon JJ
Date: 13 Mar 2019 Case Number: S141/2018
Criminal law – Appeal against conviction – Question of law referred to Court of Criminal Appeal – Case stated – Destroying or damaging property – Physical element of offence – Where appellant harnessed himself to ship loader – Where ship loader shut down due to safety concerns – Where ship loader inoperable until appellant removed – Where no alteration to physical integrity of ship loader – Whether property damaged.

Words and phrases – "destroys or damages", "impairment of value", "physical derangement", "temporary functional derangement".

Crimes Act 1900 (NSW) – s 195(1).

Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 13 Mar 2019 Case Number: D1/2018 D2/2018 D3/2018
Aboriginals – Native title rights – Assessment of compensation – Where "previous exclusive possession act[s]" within meaning of s 23B in Div 2B of Pt 2 of Native Title Act 1993 (Cth) ("NTA") extinguished non-exclusive native title rights and interests held by Ngaliwurru and Nungali Peoples ("Claim Group") – Where Claim Group entitled to compensation under Div 5 of Pt 2 of NTA – Whether economic loss and cultural loss assessed separately – Principles of assessment for compensation for economic loss – Whether economic value of Claim Group's native title rights and interests equivalent to freehold value of affected land – Whether reduction from freehold value appropriate and how calculated – Whether inalienability of native title rights and interests a relevant discounting factor – Principles of assessment for compensation for cultural loss – Whether trial judge erred in assessment of cultural loss – Whether award manifestly excessive – Whether award met community standards.

Interest – Whether simple or compound interest payable on award for economic loss – Upon what basis simple interest payable.

Words and phrases – "compensable acts", "compensation", "compound interest", "compulsory acquisition", "cultural loss", "discount", "easement", "economic loss", "exclusive native title rights and interests", "extinguishing act", "inalienability", "just terms", "manifestly excessive", "native title", "non-economic loss", "non-exclusive native title rights and interests", "objective economic value", "percentage reduction from full exclusive native title", "previous exclusive possession act", "simple interest", "solatium".

Constitution – 51(xxxi).

Lands Acquisition Act (NT) – Sch 2.

Native Title Act 1993 (Cth) – Pts 1, 2, 15.

Racial Discrimination Act 1975 (Cth) – s 10.

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