Bell, Keane, Gordon JJ
Date: 11 Sep 2018 Case Number: M26/2018
Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Tribunal made adverse findings as to credibility – Whether error in Tribunal's reasons.
Words and phrases – "appeal", "credibility", "error".
Refugees Convention Act 2012 (Nr).
Convention relating to the Status of Refugees (1951) as modified by the Protocol relating to the Status of Refugees (1967).
Kiefel CJ, Gageler, Nettle JJ
Date: 11 Sep 2018 Case Number: M27/2018
Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and Border Control refused application for complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's decision – Where appellant claimed he would be subject to cruel, inhuman or degrading treatment if returned to Sri Lanka – Where basis for claim was that appellant may be remanded in prison if returned to Sri Lanka and prison conditions in Sri Lanka are poor – Whether Tribunal had regard to material before it concerning prison conditions in Sri Lanka – Whether reasons of Tribunal met standard required by s 34(4) of Refugees Convention Act 2012 (Nr).
Words and phrases – "cruel, inhuman or degrading treatment", "duty to give reasons", "prison conditions".
Refugees Convention Act 2012 (Nr) – ss 5(1), 6(1), 34(4).
244 CLR 530
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 5 Oct 2011 Case Number: C2/2011 C3/2011
Constitutional law (Cth) – Duties of excise - Water Resources Act 1998 (ACT) and Water Resources Act 2007 (ACT) imposed licence fees upon first respondent for extracting water from Australian Capital Territory water catchments, and Utilities (Network Facilities Tax) Act 2006 (ACT) imposed charge upon first respondent calculated by reference to route length of its water infrastructure network - First respondent passed on cost of imposts to appellant - Territory- owned Corporations Act 1990 (ACT) provided that first respondent was a "territory-owned corporation" and regulated share ownership, corporate decision- making and corporate borrowing of first respondent - Section 8(1) also provided that first respondent is not "the Territory" only because of its status as a "territory-owned corporation" - Whether first respondent identified with government of Australian Capital Territory - Whether imposts are duties of excise - Whether imposts are financial arrangements internal to government of Australian Capital Territory.
Words and phrases – "compulsory exaction", "duties of excise", "extensive control", "identified with the Territory", "tax".
Constitution – ss 90, 122.
Australian Capital Territory (Self –Government) Act 1988 (Cth), Pts III, IV, VII.
Territory –owned Corporations Act 1990 (ACT), Pts 2, 3, 4, ss 6-8, Sched 4.
French CJ, Hayne, Kiefel, Bell, Gageler, Keane, Nettle JJ
Date: 8 Apr 2015 Case Number: B25/2013
Constitutional law – Constitution, s 99 – Prohibition on Commonwealth, by any law of revenue, giving preference to one State over another – Discrimination – Practical operation of law – Clean Energy Act 2011 (Cth), Clean Energy (Charges – Excise) Act 2011 (Cth), Pt 3, Clean Energy (Charges – Customs) Act 2011 (Cth), Pt 3, and Clean Energy (Unit Shortfall Charge – General) Act 2011 (Cth) established and imposed tax on certain greenhouse gas emissions – Schedule 1 ("JCP") to Clean Energy Regulations 2011 (Cth) provided for reduction of tax liability for emissions generated by certain activities – JCP, Pt 3, Div 48 defined "production of nickel" as an activity – Whether JCP, Pt 3, Div 48 discriminates between States because of differences between States in natural, business or other circumstances – Whether JCP, Pt 3, Div 48 contrary to Constitution, s 99.
Words and phrases – "discrimination", "natural, business or other circumstances", "practical effect", "practical operation", "States or parts of States".
Constitution – s 99.
Clean Energy Regulations 2011 (Cth) – Sched 1, Pt 3, Div 48.
235 CLR 81; 82 ALJR 115; 240 ALR 234
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 15 Nov 2007 Case Number: M54/2007
Real property – Torrens title – Transfer of mortgage – Separate mortgage and loan agreements – Debts or obligations secured by mortgage – Whether s 62 of the Land Title Act 1994 (Q) ("the Act") operated to vest in transferee of the mortgage the right to recover monies under the loan agreement – Relevance of the historical and legislative purpose of s 62 of the Act – Relevance of connection of the loan to the mortgage – Whether a right to recover monies under the loan agreement was a right "to recover a debt or enforce a liability under the mortgage" within the meaning of s 62(4) of the Act.
Statutes – Interpretation – Meaning of "under the mortgage" in s 62 of the Act – Whether a right to recover a debt or enforce a liability under the mortgage includes a right to recover a debt or enforce a liability secured by the mortgage.
Words and phrases – "under the mortgage".
Land Title Act 1994 (Q) – s 62.
French CJ, Hayne, Kiefel, Bell, Gageler, Keane JJ
Date: 13 May 2015 Case Number: B39/2014
Native title – Native title rights in relation to land – National Security Act 1939 (Cth), s 5(1)(b)(i) provided for making of regulations for securing public safety and defence of Commonwealth and for authorising taking of possession or control, on behalf of Commonwealth, of any property – National Security (General) Regulations 1939 (Cth), reg 54(1) provided that if it appeared to Minister of State for Army to be necessary or expedient to do so in interests of public safety, defence of Commonwealth or efficient prosecution of war, or for maintaining supplies and services essential to life of Commonwealth, Minister could, on behalf of Commonwealth, take possession of any land and give such directions as appeared necessary or expedient in connection with taking possession – Where orders were made under reg 54(1) in relation to land authorising officer to do anything in relation to land that holder of estate in fee simple in land could do and prohibiting all other persons from exercising any right of way over land or any other right relating thereto – Whether orders inconsistent with claimed native title rights and interests – Whether clear and plain legislative intention to extinguish native title rights and interests.
Words and phrases – "clear and plain legislative intention", "exclusive possession", "extinguishment", "inconsistency of rights", "possession".
National Security Act 1939 (Cth) – s 5(1).
National Security (General) Regulations 1939 (Cth) – reg 54.
237 CLR 603; 83 ALJR 557; 254 ALR 1
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 2 Apr 2009 Case Number: S384/2008 S385/2008
Real property – Compulsory acquisition - Where Local Government Act 1993 (NSW) ("LG Act"), s 186(1), provided that council may acquire land "for the purpose of exercising any of its functions" - Where LG Act, s 188(1) provided that council may not acquire land by compulsory process if land being "acquired for the purpose of re-sale" - Relationship between purpose of exercising any council functions and purpose of re-sale - Meaning of "purpose of re-sale" - Whether acquisition of land by council pursuant to development agreement requiring council to hold land acquired on trust for private developer, in exchange for money and money's worth, as part of larger public-private partnership, is acquisition for purpose of re-sale.
Real property – Compulsory acquisition - Where LG Act, s 188(2)(a) provided that land may be acquired by compulsory process even if acquisition for purpose of re-sale if land in question adjoins or lies in vicinity of other land acquired at same time under LG Act, Pt 1 of Ch 8, for purpose other than purpose of re-sale - Where adjoining land comprised public roads already vested in fee simple in council - Where Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 7B provided that State authority authorised to acquire land by compulsory process may do so even where land already vested in authority - Whether adjoining land nevertheless acquired under LG Act, Pt 1 of Ch 8.
Statutes – Interpretation - Presumption that legislature does not intend to interfere with property rights unless contrary intention manifest - Consequences for identification of purpose of acquisition.
Words and phrases – "function", "public-private partnership", "purpose of re-sale", "re-sale".
Local Government Act 1993 (NSW) – ss 24, 26, 186, 187, 188, 400B(1), 400B(2).
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – s 7B.
Roads Act 1993 (NSW) – ss 7(4), 145(3), 146(1)(e).
203 CLR 452; 74 ALJR 1319; 174 ALR 1
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 31 Aug 2000 Case Number: M95/1999
Sentencing – Power of Court of Appeal to re-sentence on remaining convictions after quashing some convictions - Counts properly joined - No appeal against sentence by either Crown or appellant - Principles of proportionality and totality - Whether Court of Appeal had power to increase the sentences of the appellant on the remaining convictions - Whether Court of Appeal gave adequate reasons for increase in sentence - Whether substituted sentence ordinarily subject to ceiling on total punishment so appellant not exposed to risk of increased punishment following a successful appeal.
Words and phrases – "totality principle", "ceiling principle".
Crimes Act 1958 (Vic) – s 569(1).
Sentencing Act 1991 (Vic) – s 16(3A).
French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 10 Mar 2016 Case Number: M246/2015
Statutory interpretation – Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ("IBAC Act") – Investigation by Independent Broad-based Anti-corruption Commission into allegations of assault and human rights violations by officers of Victoria Police – Where appellants were police officers suspected of involvement in alleged assault – Where appellants summoned to give evidence at public examination – Whether power to hold examination under Pt 6 of IBAC Act exercisable in relation to persons who have not been, but may be, charged with offence relating to subject matter of examination.
Statutory interpretation – Common law rights – Whether s 144 of IBAC Act abrogates privilege against self-incrimination.
Words and phrases – "abrogate", "companion principle", "compulsory examination", "police personnel misconduct", "principle of legality", "privilege against self-incrimination".
Independent Broad –based Anti-corruption Commission Act 2011 (Vic), ss 5, 8, 15, 42, 84(2), 120, 144.
238 CLR 460; 83 ALJR 654; 254 ALR 606
French CJ, Gummow, Heydon, Kiefel, Bell JJ
Date: 22 Apr 2009 Case Number: S474/2008
Defamation – Statements amounting to defamation - Test to be applied in determining what is defamatory - Whether general test has application to imputations concerning business or professional reputation - Whether general test limited to imputations concerning character or conduct - Distinction between defamation and injurious falsehood - Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 considered.
Defamation – Statements amounting to defamation - Standards by which allegedly defamatory imputations to be judged - Distinction between general test for defamation and standards to be applied - Standards imported by describing hypothetical referees of whether person defamed as "right-thinking" - Relevance and applicability of general community standards.
Defamation – Statements amounting to defamation - Standards by which allegedly defamatory imputations to be judged - Whether in cases concerning business or professional reputation hypothetical referees assumed to have special knowledge of business or profession - When plea of true innuendo appropriate.
Defamation – Statements amounting to defamation - Test to be applied in determining what is defamatory - Whether jury misdirected - Whether substantial wrong or miscarriage occurred.
Words and phrases – "business defamation", "general community standards", "hypothetical referee", "ordinary decent person", "ordinary reasonable person", "reputation", "right-thinking", "true innuendo".
Defamation Act 1974 (NSW) – s 4(2).
Defamation Act 2005 (NSW) – s 6(2).
Uniform Civil Procedure Rules 2005 (NSW) – r 51.
238 CLR 516; 82 ALJR 934; 246 ALR 406
Gleeson CJ, Gummow, Kirby, Heydon, Crennan JJ
Date: 22 May 2008 Case Number: B39/2007
Income tax – Trust income - Present entitlement - Trust deed provided that beneficiaries entitled under default provision had immediate and indefeasible vested interest in income - Income never paid to or demanded by appellant as trustee of Unit Trust - Whether appellant as trustee of Unit Trust presently entitled to trust income - Whether entitlement of appellant under default provision reflected legal entitlements intended by parties creating trusts - Application of parol evidence rule - Whether entitlement of appellant under default provision a "sham".
Income tax – Trust income - Present entitlement - Reimbursement agreement - Income Tax Assessment Act 1936 (Cth), s 100A provided that beneficiary otherwise presently entitled to income of trust estate deemed not to be presently entitled where entitlement arose out of, or arose by reason of act, transaction or circumstance that occurred in connection with, "reimbursement agreement" - Whether transactions between building companies and Development Trust "reimbursement agreement" - Whether other income of Development Trust distributed to Raftland Trust but not derived from agreement between building companies and Development Trust arose out of, or arose by reason of act, transaction or circumstance that occurred in connection with, "reimbursement agreement" - Whether, by operation of s 100A, appellant as trustee of Raftland Trust and not tertiary beneficiaries of Raftland Trust presently entitled to trust income.
Income tax – Avoidance or minimisation of liability to tax - Proper analysis of documents and actions of appellant and other persons - Suggestion that certain actions constitute a "sham" - History and meaning of "sham" for the purposes of Australian law - Utility for legal purposes of conclusion that transactions constitute a "sham" - Whether in present case propounded documents expressed purposes and intentions of parties with legal consequences determined accordingly - Whether documents were a "sham" and may be disregarded with legal obligations of parties determined otherwise - Whether primary judge erred in references to and conclusions of "sham" - Whether Full Court erred in giving effect to different conclusion as to existence of "sham".
Trusts – Trust income - Whether losses borne by capital in previous tax years must be recouped before trust income is available for distribution - Relevance of existence of successive interests, where interest in income followed by interest in capital - Relevance of Upton v Brown (1884) 26 Ch D 588.
Words and phrases – "present entitlement", "reimbursement agreement", "sham".
Income Tax Assessment Act 1936 (Cth) – ss 99A, 100A, 226H, 260, Pt IVA.
Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ
Date: 17 Aug 2017 Case Number: S53/2017
Bankruptcy – Creditor's petition – Where petitioning creditor relied upon judgment debt – Where judgment debt resulted from contested hearing – Where no suggestion of fraud or collusion in obtaining judgment – Where evidence adduced to suggest debt not truly owing – Whether Bankruptcy Court has, and should exercise, discretion to "go behind" judgment to investigate debt.
Words and phrases – "debt truly owing", "fraud, collusion or miscarriage of justice", "'go behind' a judgment", "miscarriage of justice".
Bankruptcy Act 1966 (Cth) – s 52.
247 CLR 304; 87 ALJR 1; 292 ALR 617
French CJ, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 7 Nov 2012 Case Number: B28/2012
Family law – Children – Family Law Act 1975 (Cth) – Family Law (Child Abduction Convention) Regulations (Cth) – Convention on the Civil Aspects of International Child Abduction – Wrongful removal – Order for return to country of habitual residence – Discretion to refuse to make return order – Objection of child to return – Ascertaining child's views and interests – Appointment of family consultant.
Practice and procedure – Procedural fairness – Mother removed children from country of habitual residence in Italy – Father sought children's return – Family Court has discretion not to make return order if person opposing return establishes child objects to being returned with strength of feeling beyond mere preference or ordinary wish and child has attained appropriate age and maturity – Family Court made return order notwithstanding children objected to their return – Family Court received evidence and report by family consultant about children's views – Children unsuccessfully applied at late stage to intervene by case guardian in proceedings between mother and father – No evidence of exceptional circumstances to suggest Family Court should have ordered independent representation for children under s 68L of Family Law Act 1975 (Cth) – Whether children denied procedural fairness in making of return order – Whether procedural fairness required children to have independent legal representation.
Words and phrases – "family consultant", "independent representation", "return order".
Family Law Act 1975 (Cth) – ss 62G, 68L, 68LA, 69ZT, 92, 111B.
Family Law (Child Abduction Convention) Regulations (Cth) – regs 14, 16, 19A, 26.
77 ALJR 1307; 198 ALR 262
Date: 25 Jun 2003 Case Number: S403/2002
Parliamentary elections (Cth) – Senate - New South Wales half Senate election - Whether date fixed for close of nominations in writ for election issued by Governor of New South Wales complied with s 156(1) of the Commonwealth Electoral Act 1918 (Cth) and s 4A(1) of the Senators' Elections Act 1903 (NSW) - Relationship between Commonwealth Electoral Act 1918 (Cth) and Senators' Elections Act 1903 (NSW) - Nature of relief by way of quo warranto - Whether proclamation by Governor-General proroguing Parliament may validly take effect prior to its publication in the Commonwealth of Australia Gazette.
Date: 7 Nov 2017 Case Number: M122/2017
Practice and procedure – Leave to issue or file document – Where applicant seeks declaration various steps are reasonable in order for him not to be incapable under s 44(i) of Constitution of being chosen as Senator – Whether declaration involves a justiciable matter.
Words and phrases – "advisory opinion", "all steps that are reasonably required", "declaration", "foreign citizenship", "hypothetical facts", "incapable of being chosen", "matter".
Constitution – s 44(i).
High Court Rules 2004 (Cth) – r 6.
75 ALJR 478; 178 ALR 57
Date: 14 Feb 2001 Case Number: M9/2001
Federal Magistrates Court – Federal Magistrates Act 1999 (Cth) - Validity.
Constitution – ss 71, 72, 73, 79, 80.
Federal Magistrates Act 1999 (Cth) – ss 11, 17, 20, 37(2).
Federal Magistrates (Consequential Amendments) Act 1999 (Cth) – Scheds 11, 12.
Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 27 Oct 2017 Case Number: C11/2017 C12/2017 C13/2017 C14/2017 C15/2017 C17/2017 C18/2017
Constitutional law (Cth) – Parliamentary elections – References to Court of Disputed Returns – Where referred persons elected to Commonwealth Parliament – Where evidence to suggest each held dual citizenship at date of nomination for election – Whether each person incapable of being chosen or of sitting as senator or member of House of Representatives by reason of s 44(i) of Constitution – Proper construction of s 44(i) of Constitution – Whether s 44(i) contains implied mental element in relation to acquisition or retention of foreign citizenship – Whether each person subject or citizen of foreign power or entitled to rights or privileges of subject or citizen of foreign power for purposes of s 44(i).
Words and phrases – "a subject or a citizen … of a foreign power", "constitutional imperative", "foreign citizenship", "incapable of being chosen", "knowledge", "natural-born", "naturalised", "reasonable steps", "voluntariness", "voluntary act", "wilful blindness".
Constitution – ss 16, 34, 44(i), 45(i).
Commonwealth Electoral Act 1918 (Cth) – ss 163, 376.
74 ALJR 1148; 173 ALR 145
Date: 27 Jun 2000 Case Number: S116/2000
Constitutional law (Cth) – "Matter" - Divisibility of - Appeal from Administrative Appeals Tribunal to Federal Court - Whether can be restricted to point of law - Whether Court has duty to determine entire matter.
Constitutional law (Cth) – Jurisdiction of Federal Court - Jurisdiction subject to exclusion by other Acts.
Income tax – Practice and procedure - Appeal to Full Court of Federal Court - Whether without jurisdiction - Alternative proceedings involving review by Administrative Appeals Tribunal and appeal to Federal Court - Applicable provisions governing Federal Court in each case.
Income tax – Public Tax Ruling - Duty imposed on Commissioner to abide by Ruling - Whether bound by duty where contradictory order of Federal Court - Whether mandamus available.
High Court – Constitutional writs - Applications for orders nisi for prohibition and mandamus and other relief - Test to be applied - Whether applicant has demonstrated reasonably arguable case.
Administrative law – Administrative Appeals Tribunal - Whether constitutionally permissible to restrict appeal to Federal Court to point of law.
Constitution – s 75(v).
Administrative Appeals Tribunal Act 1976 (Cth) – ss 43, 44.
Federal Court of Australia Act 1976 (Cth) – s 24.
Income Tax Assessment Act 1936 (Cth) – ss 25(1), 25A(1), 170BA.
Taxation Administration Act 1953 (Cth) – ss 14ZZ, 14ZZA, 14ZZL, 14ZZQ.
Federal Court Rules – O 52, r 15, O 52, r 10, O 53, r 2.
High Court Rules – O 55, r 2.
77 ALJR 1202; 198 ALR 259
Gummow, Hayne, Callinan JJ
Date: 17 Jun 2003 Case Number: S457/2002
Practice and procedure – High Court of Australia - Decision of single Justice - Application for leave to appeal discontinued - Whether collateral relief available pursuant to s 75(v) of the Constitution.
Constitution – s 75(v).
Judiciary Act 1903 (Cth) – s 34.
220 CLR 308; 209 ALR 311; 78 ALJ R 1451
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 9 Sep 2004 Case Number: B60/2003
Constitutional law (Cth) – Defence – Offences by service members – Service offences – Offence of sexual intercourse without consent – Offence allegedly committed overseas – Service member on leave – Whether beyond legislative power to make conduct of a service member allegedly committed while overseas on leave a service offence triable before an Australian service tribunal.
Defence – Military forces – Discipline – Service member on leave – Offence of sexual intercourse without consent – Offence alleged to have occurred in Thailand – Whether offence may be prosecuted before Australian service tribunal in Australia – Whether beyond constitutional power so to provide – Whether service connection sufficient within Constitution to found valid conferral of power upon tribunal.
Constitution – s 51(vi), Ch III.
Defence Force Discipline Act 1982 (Cth) – ss 9, 61.
75 ALJR 470; 177 ALR 491
Date: 14 Dec 2000 Case Number: C17/2000
Practice and procedure – Extension of time - Factors to be considered.
Constitutional law – Constitutional relief - Jurisdictional error - Whether Full Bench of Australian Industrial Relations Commission made a jurisdictional error - Role of Full Bench on appeal.
Practice and procedure – Costs - Whether s 347 of the Workplace Relations Act 1996 (Cth) applied - Whether proceedings commenced "vexatiously or without reasonable cause".
Constitution – s 75(v).
Workplace Relations Act 1996 (Cth) – ss 45, 347.
High Court Rules – O 55, r 17 O 55, r 30 O 60, r 6