Judgments, ordered by date

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BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 9 Oct 2019 Case Number: S46/2019
Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where decision by delegate of Minister for Immigration and Border Protection to refuse protection visa referred to Authority for review – Where Secretary of Department of Immigration and Border Protection gave Authority documents and information – Where Secretary notified Authority that s 473GB applied to documents and information – Where s 473GB(3) conferred discretions on Authority, upon notification, to have regard to matter in document or to information and to disclose matter in document or information to referred applicant – Where documents and information not disclosed to referred applicant during review – Where fact of notification not disclosed to referred applicant during review – Whether procedural fairness required Authority to disclose fact of notification to referred applicant.

Administrative law – Judicial review – Jurisdictional error – Procedural fairness – Where Div 3 of Pt 7AA, s 473GA and s 473GB provided exhaustive statement of natural justice hearing rule in relation to reviews by Authority – Whether implied obligation of procedural fairness precluded.

Words and phrases – "disclosure", "document or information", "exhaustive statement", "fact of notification", "natural justice hearing rule", "notification", "exclusion of procedural fairness".

Migration Act 1958 (Cth) – Pt 7AA.

Connective Services Pty Ltd v Slea Pty Ltd [2019] HCA 33

Kiefel CJ, Gageler, Keane, Gordon, Edelman JJ
Date: 9 Oct 2019 Case Number: M203/2018
Companies – Shares – Implied prohibition against financial assistance by company to acquire shares in company – Meaning of "financial assistance" – Where s 260A(1) of Corporations Act 2001 (Cth) provides that company may financially assist a person to acquire shares in the company only if giving the assistance does not materially prejudice the interests of the company or its shareholders, or the company's ability to pay its creditors – Where appellant companies' constitutions contained pre-emption clause which provided that, before a shareholder could transfer shares of a particular class, those shares must first be offered to existing shareholders of that class in proportion to the number of shares of that class already held by that shareholder – Where sole shareholder of one shareholder company entered into agreements for sale of shares – Where appellant companies claimed that agreements breached pre-emptive rights provisions – Where injunction sought under s 1324 of Corporations Act to restrain appellant companies from prosecuting proceedings in relation to pre emptive rights on basis that proceedings contravened the prohibition against financial assistance in s 260A(1) – Whether funding by company of legal proceedings directed at compelling one shareholder to offer shares to other shareholders is financial assistance – Whether the companies should be enjoined from continuing legal proceedings at their expense to vindicate alleged breach of pre-emptive rights.

Words and phrases – "acquisition of shares", "creditors", "financial assistance", "implied prohibition against financial assistance", "injunction", "material prejudice", "power to enforce company constitution", "pre-emptive rights", "shareholders".

Corporations Act 2001 (Cth) – ss 260A(1), 1324(1).

Mann v Paterson Constructions Pty Ltd [2019] HCA 32

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 9 Oct 2019 Case Number: M197/2018
Restitution – Unjust enrichment – Work and labour done – Where land owners and builder entered into contract to which Domestic Building Contracts Act 1995 (Vic) applied – Where contract provided for progress payments at completion of stages – Where owners requested, and builder carried out, variations to plans and specifications in contract without giving written notice as required by s 38 of Act – Where owners repudiated contract after builder raised invoice claiming for variations – Where contract terminated by builder's acceptance of owners' repudiation – Whether s 38 of Act applied to limit amount recoverable by builder for variations – Whether builder entitled to recover in restitution as alternative to claim in damages for breach of contract – Whether contract price operated as ceiling on amount recoverable by way of restitution.

Words and phrases – "accrued rights", "alternative restitutionary remedy", "common counts", "completed stage", "contract price ceiling", "contractual incentives", "domestic building contract", "failure of basis", "failure of consideration", "limit on recovery", "measure of restitution", "notice", "primary and secondary obligations", "principle of legality", "protective provisions", "qualifying or vitiating factor", "quantum meruit", "quasi-contractual obligation", "repudiation", "restitution", "subjective devaluation", "unjust enrichment", "variations", "work and labour done".

Domestic Building Contracts Act 1995 (Vic) – ss 1, 3, 4, 16, 27, 38, 39, 53, 132.

Minogue v Victoria [2019] HCA 31

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 11 Sep 2019 Case Number: M162/2018
Constitutional law – State Parliament – Constitution – Ch III – Where plaintiff convicted of murder of police officer – Where plaintiff sentenced to imprisonment for life with non-parole period – Where plaintiff's non-parole period expired – Where s 74AB of Corrections Act 1986 (Vic) prevented making of parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person, and does not pose risk to community – Where s 74AB identified plaintiff by name and applied only to plaintiff – Where plaintiff not in imminent danger of dying or seriously incapacitated – Where s 74AAA of Corrections Act imposed conditions for making parole order if person convicted of murder and victim police officer – Whether ss 74AB and 74AAA contrary to Ch III of Constitution and therefore invalid – Whether ss 74AB and 74AAA impermissibly legislatively resentenced plaintiff – Whether ss 74AB and 74AAA impose additional or separate punishment to that imposed by sentencing court – Whether s 74AB distinguishable from provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 – Whether Knight and Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 should be reopened.
Words and phrases – "additional or separate punishment", "judicial power", "legislative punishment", "legislatively resentenced", "life imprisonment", "minimum term", "more punitive or burdensome to liberty", "non-parole period", "opportunity to be considered for release on parole", "parole", "severity of the punishment", "substantive operation and practical effect".
Constitution, Ch III. Corrections Act 1986 (Vic), ss 74AAA, 74AB, 127A.

Taylor v Attorney-General (Cth) [2019] HCA 30

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 11 Sep 2019 Case Number: M36/2018
Criminal practice – Private prosecution – Authority to prosecute – Where private citizen sought to commence criminal proceeding for offence of crime against humanity contrary to s 268. 11 of Criminal Code (Cth) – Where offence located within Div 268 of Criminal Code – Where s 268. 121(1) provides that proceedings under Div 268 must not be commenced without Attorney-General's written consent – Where Attorney-General did not consent – Where s 268. 121(2) of Criminal Code provides that offence against Div 268 "may only be prosecuted in the name of the Attorney-General" – Where s 13(a) of Crimes Act 1914 (Cth) provides that any person may "institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth" unless contrary intention appears – Whether s 268. 121(2) expresses contrary intention for purpose of s 13(a) – Whether s 268. 121(2) precludes private prosecution of offence against Div 268.
Words and phrases – "commencement of proceedings", "committal", "consent", "consent of the Attorney-General", "contrary intention", "crime against humanity", "in the name of", "indictable offence against the law of the Commonwealth", "private prosecution", "prosecuted in the name of the Attorney-General", "relator proceeding", "right to prosecute", "summary proceedings", "trial on indictment".
Crimes Act 1914 (Cth), s 13(a). Criminal Code (Cth), ss 268. 11, 268. 121. Judiciary Act 1903 (Cth), ss 68, 69.

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 4 Sep 2019 Case Number: S352/2018
Practice and procedure – Costs – Legal practitioners – Barristers – Where self-represented litigant may not obtain any recompense for value of his or her time spent in litigation – Where exception commonly referred to as "Chorley exception" exists for a self-represented litigant who is a solicitor – Where first respondent is a barrister – Where first respondent undertook legal work in litigation in which she was represented – Where first respondent incurred costs on her own behalf and for legal services provided by herself – Whether Chorley exception operates to benefit barristers – Whether Chorley exception recognised as part of common law of Australia.
Words and phrases – "anomalous", "Chorley exception", "common law of Australia", "costs", "costs payable", "creature of statute", "employed solicitors", "equality before the law", "exception to the general rule", "exercise of professional skill", "incorporated legal practice", "indemnity", "judicial abolition", "professional legal services", "prospective overruling", "remuneration", "rule of practice", "rules committees", "self-represented litigants", "statutory power".
Civil Procedure Act 2005 (NSW), ss 3(1), 98(1).

Lee v Lee [2019] HCA 28

Kiefel CJ, Bell, Gageler, Nettle, Edelman JJ
Date: 4 Sep 2019 Case Number: B61/2018 B62/2018 B63/2018
Insurance law – Motor vehicles – Personal injury – Where appellant injured in motor vehicle collision – Where appellant gave evidence father driving vehicle at time of collision – Where appellant alleged injuries caused by negligence of father – Where appellant’s blood located on driver's airbag – Where expert evidence relating to possible source of blood – Where expert evidence relating to seatbelt and airbag design – Where trial judge concluded appellant driving vehicle – Where Court of Appeal dismissed appeal – Whether trial judge's findings glaringly improbable or contrary to compelling inferences.
Appeal – Rehearing – Where trial judge drew inferences and made findings of fact based on lay and expert evidence – Where Court of Appeal found inferences wrong in material respects – Whether Court of Appeal erred in failing to conclude trial judge misused advantage as trial judge – Whether Court of Appeal failed to conduct "real review" of evidence given and trial judge's reasons for judgment.
Words and phrases – "contrary to compelling inferences", "glaringly improbable", "real review", "trial judge's advantage".

Brisbane City Council v Amos [2019] HCA 27

Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ
Date: 4 Sep 2019 Case Number: B47/2018
Limitation of actions – Debts created by statute – Debts secured by charge – Where Council commenced proceeding against respondent for overdue rates and charges – Where overdue rates and charges secured by charge – Where respondent argued claim was an action to recover a sum recoverable by virtue of an enactment under s 10(1)(d) of Limitation of Actions Act 1974 (Qld) – Where Council argued claim was an action to recover a principal sum of money secured by a charge and subject to s 26(1) of the Act – Where proceeding falls within both ss 10(1)(d) and 26(1) – Whether s 26(1) applies to exclude operation of s 10(1)(d).
Words and phrases – "Barnes v Glenton", "claim in rem", "limitation of actions", "overlap between limitation periods", "personal claim", "real claim", "sums secured by mortgage or charge", "what claims are within limitation statutes".
Limitation of Actions Act 1974 (Qld), ss 10(1)(d), 26(1).

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.

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