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HT v The Queen [2019] HCA 40

Kiefel CJ, Bell, Keane, Nettle, Gordon, Edelman JJ
Date: 13 Nov 2019 Case Number: S123/2019
Criminal practice – Appeal – Crown appeal against sentence – Procedural fairness – Where appellant provided assistance to law enforcement authorities – Where court required by statute to take assistance into account in sentencing – Where evidence of assistance kept confidential from appellant and appellant's legal representatives in sentencing proceedings – Where evidence contained highly sensitive criminal intelligence – Where appellant sought access to confidential evidence on appeal – Where Court of Criminal Appeal denied appellant access to confidential evidence on basis of public interest immunity – Where Court of Criminal Appeal exercised discretion under s 5D(1) of Criminal Appeal Act 1912 (NSW) to re-sentence – Whether appellant denied procedural fairness – Whether Court of Criminal Appeal had power to deny appellant access to the confidential evidence – Whether Court of Criminal Appeal should have declined to exercise discretion to re-sentence.

Words and phrases – "access to evidence", "assistance to law enforcement authorities", "confidential information", "Crown appeal against sentence", "discount in sentence", "evidence of assistance", "mitigating factor", "non-disclosure", "open justice", "procedural fairness", "public interest immunity", "residual discretion", "tailored order".

Court Suppression and Non –publication Orders Act 2010 (NSW), ss 7, 8.

Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A, 23.

Criminal Appeal Act 1912 (NSW) – ss 5D(1), 12.

Evidence Act 1995 (NSW) – s 130.

Lordianto v Commissioner of the Australian Federal Police [2019] HCA 39

Kiefel CJ, Bell, Keane, Gordon, Edelman JJ
Date: 13 Nov 2019 Case Number: S110/2019 P17/2019
Criminal practice – Forfeiture of tainted property – Where appellants remitted money to Australia using money remitters or money changers in foreign country – Where large number of cash deposits, usually each less than $10,000, made into appellants' bank accounts in Australia in process known as "cuckoo smurfing" – Where deposits proceeds or instrument of structuring offence under s 142 of Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – Where Commissioner of Australian Federal Police successfully applied for restraining orders over appellants' bank accounts under s 19 of Proceeds of Crime Act 2002 (Cth) ("POCA") – Where appellants applied under ss 29 and 31 of POCA to have property excluded from orders – Whether property "ceased" to be proceeds or instrument of offence under s 330(4) of POCA – Whether property acquired by third party for sufficient consideration without third party knowing, and in circumstances that would not arouse reasonable suspicion, that property proceeds or instrument under s 330(4)(a) of POCA.

Words and phrases – "acquisition of property", "cuckoo smurfing", "for sufficient consideration", "in circumstances that would not have aroused a reasonable suspicion", "instrument of a serious offence", "money changers", "money laundering", "money remitters", "proceeds of an indictable offence", "proceeds of crime", "reporting threshold", "structuring offence", "third party", "volunteer".

Anti –Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), ss 5, 142.

Proceeds of Crime Act 2002 (Cth) – ss 19, 29, 31, 317, 329, 330, 338.

Vella v Commissioner of Police (NSW) [2019] HCA 38

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 6 Nov 2019 Case Number: S30/2019
Constitutional law (Cth) – Judicial power – Constitution – Ch III – State Parliament – Institutional integrity of State courts – Where s 5(1) of Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) provides that State court may make order if satisfied that specified person has been convicted of serious criminal offence or involved in serious crime related activity and satisfied that reasonable grounds to believe that making of order would protect public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where s 6(1) of Act provides that order against that specified person may contain such prohibitions, restrictions, requirements and other provisions as court considers appropriate for purpose of protecting public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where proceedings under Act are civil proceedings – Whether making order exercise of judicial power – Whether powers conferred by Act incompatible with State court's role as repository of federal judicial power – Whether powers conferred by Act substantially impair institutional integrity of State court.

Words and phrases – "appropriate", "balancing", "facilitates or is likely to facilitate", "future risk", "institutional integrity", "judicial power", "Kable v Director of Public Prosecutions (NSW)", "open-textured", "preventing, restricting or disrupting", "preventive orders", "real or significant risk", "reasonable grounds to believe", "risk assessment", "serious crime related activities", "serious criminal offence".

Constitution – Ch III.

Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) – ss 3, 5, 6.

Fennell v The Queen [2019] HCA 37

Kiefel CJ, Keane, Nettle, Gordon, Edelman JJ
Date: 6 Nov 2019 Case Number: B20/2019
Criminal law – Murder – Appeal – Appeal against conviction – Where appellant convicted by jury – Where Crown case based entirely on circumstantial evidence – Where circumstantial evidence related to opportunity and motive and miscellany of other inculpatory matters – Where evidence of opportunity and motive extremely weak – Where evidence connecting accused to alleged murder weapon based on glaringly improbable identification evidence – Whether verdict unreasonable or cannot be supported having regard to evidence.

Words and phrases – "basis for an inference", "circumstantial case", "contamination of recollection", "credibility and reliability", "glaringly improbable", "identification evidence", "identification of object", "motive", "murder weapon", "opportunity", "unreasonable verdict".

Criminal Code (Qld) – s 668E(1).

Commissioner of Taxation v Sharpcan Pty Ltd [2019] HCA 36

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 16 Oct 2019 Case Number: M52/2019
Income tax (Cth) – Allowable deductions – Where taxpayer had received percentage of income derived from 18 gaming machines operated by authorised gaming operator under Gambling Regulation Act 2003 (Vic) at its hotel premises – Where Gambling Regulation Act amended to provide for gaming machine entitlements ("GMEs") to be allocated directly to gaming venue operators – Where taxpayer bid for and was allocated 18 GMEs permitting it to operate gaming machines at its premises for ten years – Where taxpayer paid purchase price by instalments – Whether purchase price was outgoing on revenue account deductible under s 8-1 of Income Tax Assessment Act 1997 (Cth) ("1997 Act") – Whether purchase price was expenditure incurred to preserve (but not enhance) value of goodwill in relation to legal or equitable right with value to taxpayer solely attributable to effect on goodwill deductible under s 40-880 of 1997 Act.

Words and phrases – "asset of enduring value", "barrier to entry", "blackhole expenditure", "capital account", "capital asset", "CGT asset", "CGT cost base", "CGT event", "gaming machine entitlements", "goodwill", "motive", "objective purpose", "once-and-for-all outgoing", "practical and business point of view", "purchase price funded out of revenue", "revenue account", "statutory rights", "structural solution".

Gambling Regulation Act 2003 (Vic) – Ch 3, Pt 4A.

Income Tax Assessment Act 1997 (Cth) – ss 8-1, 40-880.

The Queen v A2 [2019] HCA 35

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 16 Oct 2019 Case Number: S43/2019 S44/2019 S45/2019
Statutes – Construction – Where s 45(1)(a) of Crimes Act 1900 (NSW) provides that a person who "excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person" is liable to imprisonment – Where two respondents charged with having "mutilated the clitoris" of each of complainants – Where other respondent charged with assisting those respondents following commission of those offences – Where defence case that procedure performed on complainants merely ritualistic – Where trial judge directed jury that word "mutilate" in context of female genital mutilation means "to injure to any extent" – Where trial judge directed jury that "clitoris" includes "clitoral hood or prepuce" – Whether "otherwise mutilates" should be given ordinary meaning or take account of context of female genital mutilation – Whether "clitoris" includes clitoral hood or prepuce – Whether trial judge misdirected jury as to meaning of "mutilate" and "clitoris".

Appeals – Where s 6(2) of Criminal Appeal Act 1912 (NSW) provides that if appeal against conviction allowed, subject to special provisions of Act, Court of Criminal Appeal "shall . . . quash the conviction and direct a judgment and verdict of acquittal to be entered" – Where s 8(1) provides that on appeal against conviction, Court of Criminal Appeal may order new trial if it considers that miscarriage of justice has occurred and it can be more adequately remedied by order for new trial than any other order – Where Court of Criminal Appeal allowed appeals against convictions based on construction of s 45(1)(a) of Crimes Act and on other grounds including that verdicts unreasonable or unsupported by evidence – Whether open to Court to quash conviction and decline to make further order – Whether sufficient evidence to warrant order for new trial – Whether matter should be remitted to Court of Criminal Appeal for redetermination of ground alleging that verdicts unreasonable or unsupported by evidence.

Words and phrases – "child abuse", "clitoris", "context", "de minimis injury", "female genital mutilation", "injury", "khatna", "mischief", "misdirected the jury", "mutilation", "offence provisions", "otherwise mutilates", "purposive construction", "ritualised circumcision", "sufficient evidence", "tissue damage", "umbrella term".

Crimes Act 1900 (NSW) – s 45.

Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW).

Criminal Appeal Act 1912 (NSW)
– ss 6(2), 8(1).

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.

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