Judgments, ordered by date

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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.

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

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after credited to prevent customers having practical opportunity to access monies – Where respondent applied part of withdrawn funds to reduce customer's indebtedness and made remainder available for provision of future goods and services – Where respondent's record-keeping inadequate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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Spence v Queensland [2019] HCA 15

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13

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

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

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

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

Tjungarrayi v Western Australia [2019] HCA 12

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

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

Mining Act 1978 (WA) – Pt IV Div 2.

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

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

Clubb v Edwards [2019] HCA 11

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

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

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

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

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

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

OKS v Western Australia [2019] HCA 10

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

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

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

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

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

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

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

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

Juries Act 2000 (Vic) – s 48.

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

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

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

Crimes Act 1900 (NSW) – s 195(1).

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

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

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

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

Constitution – 51(xxxi).

Lands Acquisition Act (NT) – Sch 2.

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

Racial Discrimination Act 1975 (Cth) – s 10.

AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6

Nettle J
Date: 27 Feb 2019 Case Number: M73/2018 M74/2018
Practice and procedure – High Court – Suppression and non-publication orders – Power to make – Where risk of harm to persons associated with party to proceeding "acute" – Whether non-publication order necessary to protect safety of persons.

Words and phrases – "administration of justice", "necessary to protect the safety of any person", "non-publication order", "public interest in open justice".

Judiciary Act 1903 (Cth) – ss 77RE, 77RF(1)(c).

McKell v The Queen [2019] HCA 5

Bell, Gageler, Keane, Gordon, Edelman JJ
Date: 13 Feb 2019 Case Number: S223/2018
Criminal practice – Trial – Summing-up – Where appellant convicted of drug-related offences – Where trial judge made comments on evidence that went beyond arguments advanced by prosecution – Whether comments apt to create danger or substantial risk that jury might be persuaded of appellant's guilt – Whether comments so lacking in balance as to be exercise in persuading jury of appellant's guilt – Whether comments unfair to appellant – Whether comments resulted in miscarriage of justice.

Criminal practice – Trial – Summing-up – Whether trial judge may make comments which convey his or her opinion as to proper determination of disputed issue of fact to be determined by jury.

Words and phrases – "comment on the facts", "discretion to comment", "disputed issue of fact", "duty to give fair and accurate instructions", "fair trial", "fairness", "fundamental task of a trial judge", "lacking in balance", "miscarriage of justice", "overawing the jury", "right to comment", "strong Crown case", "summing-up".

Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 13 Feb 2019 Case Number: C5/2018
Constitutional law (Cth) – Powers of Commonwealth Parliament – Territories – Inconsistency between Commonwealth and Territory laws – Where Council empowered under Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) ("Land Grant Act") to grant leases over certain land within Jervis Bay Territory ("JBT") – Where Land Grant Act does not affect application of other laws to extent other laws "capable of operating concurrently" with Land Grant Act – Where Residential Tenancies Act 1997 (ACT) applies in JBT as if JBT formed part of Australian Capital Territory – Where Residential Tenancies Act provides that all leases to which it applies include "standard residential tenancy terms" including term requiring lessor to maintain premises in reasonable state of repair – Whether, and to what extent, Residential Tenancies Act is law which is not capable of operating concurrently with Land Grant Act.

Words and phrases – "alter, impair or detract from", "anti-exclusivity provision", "capable of operating concurrently", "complete or exhaustive statement", "implicit negative proposition", "indirect inconsistency", "residential tenancy agreement", "standard residential tenancy terms", "statutory power".

Constitution – s 109.

Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) – ss 6, 7, 12, 38, 40, 41, 42, 46.

Australian Capital Territory (Self –Government) Act 1988 (Cth), s 28.

Jervis Bay Territory Acceptance Act 1915 (Cth) – s 4A.

Residential Tenancies Act 1997 (ACT) – ss 8, 9, 10, 54, 128, Sch 1.

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 13 Feb 2019 Case Number: S36/2018 M75/2018 S135/2018
Immigration – Refugees – Administrative Appeals Tribunal – Refugee Review Tribunal – Review by Tribunal under Pt 7 of Migration Act 1958 (Cth) – Where visa applicants sought review by Tribunal of decisions by delegates of Minister for Immigration and Border Protection to refuse visas – Where Secretary of Department of Immigration and Border Protection gave Tribunal documents considered relevant to Tribunal's review – Where Secretary or officer of Department purported to notify Tribunal that s 438 of Act applied to information contained in provided documents – Where s 438 applies if either of two preconditions concerning confidentiality or public interest in non-disclosure of documents or information met – Where s 438(3) conferred discretions on Tribunal, upon notification that s 438 applies to document or information, to have regard to matter in document or to information and to disclose such matter or information to applicant for review – Where fact of notification not disclosed to visa applicants during Tribunal's review – Where notifications incorrect and invalid – Whether procedural fairness required Tribunal to disclose fact of notification to visa applicants – Whether incorrect and invalid notification resulted in denial of procedural fairness.

Administrative law – Judicial review – Jurisdictional error – Procedural fairness – Materiality – Where denial of procedural fairness occurred – Whether denial constitutes jurisdictional error if and only if denial was material in that denial deprived applicant for review of possibility of successful outcome – Whether Tribunal's review affected by jurisdictional error.

Words and phrases – "disclosure", "discretion to refuse relief", "document or information", "fact of notification", "incorrect and invalid notification", "jurisdictional error", "material", "onus of proof", "possibility of a successful outcome", "practical injustice", "procedural fairness", "s 438 certificate".

Migration Act 1958 (Cth) – Pt 7.

Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 6 Feb 2019 Case Number: D4/2018
Constitutional law (Cth) – Powers of Commonwealth Parliament – Territories – Inconsistency between Commonwealth and Territory laws – Where Commonwealth civil aviation law regulates matters preparatory to and subsequent to aircraft flight including embarkation and disembarkation of passengers – Where Commonwealth law implements and extends international obligations designed to achieve uniformity in regulation of civil aviation – Where Territory law regulates work health and safety – Whether Commonwealth law designed to operate within framework of other State, Territory and Commonwealth laws – Whether Commonwealth law contains implicit negative proposition that it is only law with respect to safety of persons affected by operations of aircraft including embarkation – Whether Territory law inconsistent with Commonwealth law.

Words and phrases – "alter, impair or detract from", "anti-exclusivity clause", "Chicago Convention", "civil aviation", "cover the field", "embarkation", "implicit negative proposition", "indirect inconsistency", "intention to deal completely, exhaustively or exclusively", "legislative intention", "nationally harmonised laws", "operations associated with aircraft", "rule of conduct", "safety standards", "subject matter".

Constitution – ss 109, 122.

Air Navigation Act 1920 (Cth).

Civil Aviation Act 1988 (Cth)
– ss 3, 3A, 9, 11, 20A, 27, 28BA, 28BD, 28BE, 29, 98. Civil Aviation Regulations 1988 (Cth), regs 2, 215, 235.

Crimes Act 1914 (Cth) – s 4C.

Northern Territory (Self –Government) Act 1978 (Cth), s 6.

Work Health and Safety Act 2011 (Cth).

Work Health and Safety (National Uniform Legislation) Act 2011 (NT)
– ss 19, 27, 32.

Unions NSW v New South Wales [2019] HCA 1

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 29 Jan 2019 Case Number: S204/2018
Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where s 29(10) of Electoral Funding Act 2018 (NSW) ("EF Act") substantially reduced cap on electoral expenditure applicable to third-party campaigners from cap applicable under previous legislation – Where third-party campaigners subject to substantially lower cap than political parties – Where s 35 of EF Act prohibits third-party campaigner from acting in concert with another person to incur electoral expenditure exceeding cap – Where preparatory materials to EF Act recommended reduction in cap for various reasons, including that third parties should not be able to "drown out" political parties, which should have a "privileged position" in election campaigns – Where subsequent parliamentary committee report recommended that, before reducing cap, government consider whether proposed reduced cap would enable third-party campaigners reasonably to present their case – Where no evidence that such consideration was undertaken – Whether s 29(10) enacted for purpose compatible with maintenance of constitutionally prescribed system of representative government – Whether s 29(10) necessary to achieve that purpose – Whether necessary to decide validity of s 35.

Words and phrases – "capped expenditure period", "compatible with maintenance of the constitutionally prescribed system of representative government", "deference to Parliament", "domain of selections", "domain of the legislative discretion", "effect of the law", "electoral expenditure", "expenditure cap", "justified", "legislative purpose", "legitimate purpose", "level playing field", "marginalise", "margin of appreciation", "necessity", "reasonably appropriate and adapted", "third-party campaigner".

Constitution – ss 7, 24.

Electoral Funding Act 2018 (NSW) – ss 3, 29, 33, 35.

Election Funding – Expenditure and Disclosures Act 1981 (NSW), ss 4, 4A, 95F.

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