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Pickett v Western Australia [2020] HCA 20

KIEFEL CJ, BELL, KEANE, NETTLE, GORDON JJ
Date: 29 May 2020 Case Number: P45/2019 P46/2019 P47/2019 P48/2019 P49/2019
Criminal law – Parties to offences – Where group of eight males assaulted victim – Where group included appellants and a youth aged 11 years ("PM") – Where one member of group stabbed victim causing death – Where appellants charged with murder under Criminal Code (WA) – Where Crown alleged seven males who did not stab victim deemed to have taken part in committing offence under s 7(b), s 7(c) or s 8 of Criminal Code – Where ss 7(b), 7(c) and 8 of Criminal Code operated when "an offence is committed" – Where reasonably possible that PM inflicted fatal stab wound – Where PM could not be criminally responsible for acts unless he had capacity to know he ought not to do act under s 29 of Criminal Code – Where prosecution adduced no evidence to establish capacity – Where trial judge declined to direct jury that they could not convict appellants of murder unless satisfied beyond reasonable doubt PM did not cause death – Where appellants convicted of murder – Whether trial judge erred in declining to direct jury that they could not convict appellants of murder unless satisfied that PM did not cause death – Whether "offence" committed for purposes of ss 7(b), 7(c) and 8 where failure to prove criminal responsibility of person who may have done act constituting offence.

Words and phrases – "accessorial criminal liability", "an offence is committed", "authorised or justified or excused by law", "commission of an offence", "common law antecedents", "construction of the Code", "criminally responsible", "enabler or aider", "excuse", "justification", "liable to punishment", "offence", "participants in the offence", "parties to the offence", "party to an unlawful common purpose", "principal offender", "unlawful killing".

Criminal Code (WA) – Chs V, XXVI; ss 1, 2, 7, 8, 29, 36, 268, 277, 279.

Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCA 18

NETTLE J
Date: 24 Apr 2020 Case Number: M164/2019
High Court – Original jurisdiction – Applications for constitutional or other writ – Determination without hearing – Abuse of process – Where plaintiff seeks orders inter alia to quash orders of superior court of record dismissing appeal from judgment dismissing application for judicial review of decision of administrative tribunal affirming decision by delegate of defendant Minister – Where plaintiff has not applied for special leave to appeal or provided explanation for departure from ordinary appellate process – Whether application is an abuse of process.

Migration – Visas – Skilled visas – Criteria for grant – Proof of skills – Where primary criteria to be satisfied for grant of visa include that application be accompanied by evidence that applicant had applied for assessment of skills for nominated skilled occupation by relevant assessing authority – Where visa applicant had failed skills assessment and not applied for subsequent skills assessment at time of submitting application – Whether evidence provided to defendant Minister after that time relevant to satisfaction of criterion.

Words and phrases – "abuse of process", "accompanied by", "constitutional writs", "determination without oral hearing", "discretion to refuse relief", "extraordinary relief", "less convenient, beneficial and effective", "ordinary appellate process", "original jurisdiction", "skills assessment", "unnecessary recourse".

Constitution – s 75(v).

Migration Regulations 1994 (Cth) – Sch 2, cl 485. 223.

Moore v Scenic Tours Pty Ltd [2020] HCA 17

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 24 Apr 2020 Case Number: S285/2019
Damages – Consumer guarantees – Personal injury – Where appellant booked holiday cruise tour supplied by respondent – Where holiday cruise tour severely disrupted by adverse weather conditions – Where respondent breached consumer guarantees in ss 60 and 61 of Australian Consumer Law ("ACL") – Where appellant claimed damages for disappointment and distress – Where s 275 of ACL provided that where failure to comply with consumer guarantee that applies to supply of services and State law proper law of contract, that law applies to limit or preclude liability for failure and recovery of liability as it would for breach of contract – Where New South Wales proper law of contract – Where s 16(1) of Civil Liability Act 2002 (NSW) ("CLA") precluded damages for non-economic loss in relation to personal injury cases unless non-economic loss at least 15% of most extreme case – Where threshold in s 16(1) not reached – Whether s 275 of ACL picked up and applied s 16 of CLA as surrogate federal law – Whether s 16 of CLA applied to preclude damages for disappointment and distress not consequential upon physical or psychiatric injury.

Words and phrases – "breach of contract", "damages", "disappointment and distress", "enjoyment", "head of loss", "holiday cases", "impairment of a person's physical or mental condition", "loss of amenities of life", "non-economic loss", "pain and suffering", "peace of mind", "personal injury", "quantification of damages", "recovery", "recovery of that liability", "recreation", "surrogate federal law".

Competition and Consumer Act 2010 (Cth) – Sch 2, ss 60, 61, 267, 275.

Civil Liability Act 2002 (NSW) – ss 3, 11, 11A, 16.

Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 24 Apr 2020 Case Number: S217/2019
Criminal practice – Accusatorial system of criminal justice – Companion rule – Where subpoena issued for employee to attend to give evidence at coronial inquest into manner and cause of another employee's death – Where employer and Commonwealth of Australia prosecuted for alleged failures to comply with duty to ensure worker health and safety – Where s 87(1)(b) of Evidence Act 2011 (ACT) relevantly entailed that representation by employee of party relating to matter within scope of employment taken as admission by that party – Whether invocation of investigative power to compel employee to give evidence about matter with respect to which employer stands charged amounts to compelling employer to give evidence contrary to rule that accused not required to assist Crown in proving its case.

High Court – Appellate jurisdiction – Practice – Extension of time – Where first respondent sought leave to file notice of contention out of time alleging that compulsion of its employee to give evidence at coronial inquest would constitute contempt of court in parallel criminal proceedings by creating real risk of interference with justice according to law – Where criminal proceedings concluded and first respondent acquitted of offences – Whether extension of time should be granted to resolve question of whether compulsory examination of potential witness other than accused can amount to contempt of court.

Words and phrases – "accusatorial system of criminal justice", "admissions made with authority", "attribution", "companion rule", "compulsory investigative powers", "compulsory pre-trial examination", "contempt of court", "coronial inquest", "extension of time", "hypothetical circumstances", "practical reality", "real risk of improper interference with criminal proceedings".

Coroners Act 1997 (ACT) – ss 36, 43, 58(6).

Evidence Act 2011 (ACT) – s 87(1)(b).

Coughlan v The Queen [2020] HCA 15

KIEFEL CJ, BELL, GAGELER, KEANE, EDELMAN JJ
Date: 24 Apr 2020 Case Number: B60/2019
Criminal law – Arson and attempted fraud – Appeal against conviction – Where prosecution case based on circumstantial evidence – Where appellant's house destroyed by explosion and resulting fire – Where appellant present at and seen running away from scene – Where appellant gave version of events to police consistent with innocence – Where appellant made insurance claim on house and contents in connection with fire – Where no apparent financial motive to commit offences – Where expert evidence that explosion caused by build-up of gaseous vapours – Where petrol residues found on appellant's clothes – Where no evidence of petrol residues in house – Whether open to jury to be satisfied of appellant's guilt beyond reasonable doubt – Whether prosecution excluded reasonable possibility that explosion caused by build-up of gas ignited by electrical fire.

Words and phrases – "absence of apparent financial motive", "arson", "attempted fraud", "beyond reasonable doubt", "circumstantial case", "consciousness of guilt", "inference consistent with innocence", "lack of motive", "reasonable possibility", "scientific evidence".

Criminal Code (Qld) – ss 408C(1)(c), 459, 461(1)(a).

Smethurst v Commissioner of Police [2020] HCA 14

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 15 Apr 2020 Case Number: S196/2019
Police – Search warrants – Validity of warrant – Where police searched premises in reliance on warrant – Where police retained material copied from first plaintiff's mobile phone in reliance on warrant – Where warrant relied upon reasonable grounds for suspecting commission of Commonwealth offence – Where warrant purported to set out offence against s 79(3) of Crimes Act 1914 (Cth) – Whether warrant misstated substance of s 79(3) of Crimes Act – Whether warrant failed to state offence to which it related with sufficient precision.

Injunctions – Mandatory injunction – Principles applicable – Where plaintiffs sought mandatory injunction requiring destruction or delivery up of material obtained under invalid warrant – Where plaintiffs sought injunction restraining police from making information available to prosecuting authorities – Whether statutory basis for injunction – Whether plaintiffs identified legal right to support injunction in auxiliary jurisdiction – Whether consequences of trespass provide basis for injunction – Whether s 75(v) of Constitution provides basis for injunction – Whether damages inadequate – Whether injunctive relief should be refused on discretionary grounds.

Words and phrases – "adequacy of damages", "auxiliary jurisdiction", "basis for injunction", "certiorari", "computer or data storage device", "constitutional injunction", "constitutional remedies", "constitutional writs", "description of the offence", "discretionary considerations", "entry, search and seizure", "equity", "evidential material", "injunction", "injunctive relief", "juridical basis", "legal right or interest", "mandatory injunction", "misstatement", "mobile phone", "nature of the offence", "official secrets", "privacy", "relief", "remedy", "right to privacy", "search warrants", "statement of offence", "substance of the offence", "sufficient interest", "sufficient particularity", "sufficient precision", "trespass".

Constitution – s 75(v).

Australian Federal Police Act 1979 (Cth) – s 8.

Crimes Act 1914 (Cth) – Pts IAA, VII; ss 3C, 3E, 3F, 3H, 3LA, 3ZQU, 79(3).

Judiciary Act 1903 (Cth) – s 32.

Re Young [2020] HCA 13

GAGELER J
Date: 15 Apr 2020 Case Number: S12/2020 S13/2020
High Court – Leave to issue or file proceeding – Removal of proceedings – Where causes said to be pending in Supreme Court of New South Wales said to involve matter "arising under any treaty" within meaning of s 75(i) of Constitution – Where applications for removal of causes into High Court under s 40 of Judiciary Act 1903 (Cth) were refused – Where applicant sought to file documents in the form of applications for leave to appeal and accompanying summons – Where Registrar directed to refuse to issue or file documents without leave of a Justice first had and obtained – Whether appellate jurisdiction of High Court extends to hearing and determining appeal from order granting or refusing removal of cause – Whether order is under implied exception to appellate jurisdiction prescribed by Parliament within meaning of s 73(i) of Constitution – Whether conditions for grant of leave to appeal established.

Words and phrases – "abuse of process", "appellate jurisdiction", "cause", "exception", "federal jurisdiction", "incidental judicial power", "leave to issue or file", "order granting or refusing removal of a cause", "original jurisdiction", "preliminary and discretionary nature", "proceedings inter partes", "removal", "special leave", "substantial injustice", "treaty".

Constitution – ss 51(xxxix), 73(i), (ii), 75, 76, 77(iii).

High Court Rules 2004 (Cth) – rr 6. 07. 1, 6. 07. 2, 6. 07. 3, 26. 07. 1.

Judiciary Act 1903 (Cth) – ss 2, 30(a), 34(1), (2), 35(2), 40(1), (2)(b), 42, 78B.

Pell v The Queen [2020] HCA 12

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 7 Apr 2020 Case Number: M112/2019
Criminal law – Sexual offences against children – Appeal against conviction by jury on ground that verdict unreasonable or cannot be supported having regard to whole of evidence – Where prosecution case wholly dependent upon acceptance of truthfulness and reliability of complainant's account – Where jury assessed complainant's evidence as credible and reliable – Where witnesses gave unchallenged evidence of specific recollections, practices and routines inconsistent with acceptance of complainant's account ("unchallenged inconsistent evidence") – Where Court of Appeal required to take into account forensic disadvantage experienced by applicant – Whether prosecution negatived reasonable possibility that applicant did not commit offences – Whether Court of Appeal required applicant to establish offending impossible to raise reasonable doubt – Whether unchallenged inconsistent evidence required jury, acting rationally, to have entertained doubt as to applicant's guilt.

Criminal practice – Appeal – Video evidence – Where evidence of complainant and other witnesses recorded – Where Court of Appeal viewed recorded witness testimony – Whether proper discharge of appellate court's function necessitated review of recorded witness testimony.

Words and phrases – "beyond reasonable doubt", "compounding improbabilities", "credibility and reliability", "function of the appellate court", "function of the jury", "impossibility", "improbability of events", "invariable practice", "jury's advantage in seeing and hearing the witnesses", "negatived the reasonable possibility", "opportunity witnesses", "realistic opportunity for the offending to have occurred", "religious ritual", "routines and practices", "significant forensic disadvantage", "significant possibility that an innocent person has been convicted", "solid obstacles to conviction", "standard and burden of proof", "unchallenged evidence", "uncorroborated", "video-recordings of the witnesses at trial".

Crimes Act 1958 (Vic) – ss 45(1), 47(1).

Criminal Procedure Act 2009 (Vic) – ss 276(1)(a), 378, 379(b)(i).

Judiciary Act 1903 (Cth) – s 37.

Jury Directions Act 2015 (Vic) – ss 4A, 39.

Swan v The Queen [2020] HCA 11

BELL, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 18 Mar 2020 Case Number: S291/2019
Criminal law – Murder – Causation – Where appellant's assault caused serious injury to victim – Where victim suffered severe deterioration in quality of life as a consequence of assault – Where victim later suffered fractured femur requiring surgery – Where decision made not to undergo possible life-saving surgery – Whether sufficient evidence for it to be open to jury to convict on basis that low quality of life resulting from assault caused decision not to undergo surgery – Whether appellant's conduct a "substantial or significant cause of death" – Whether appellant legally responsible for death.

Words and phrases – "but for", "causation", "legal responsibility", "murder", "substantial or significant", "sufficiently substantial".

Crimes Act 1900 (NSW) – s 18(1)(a).

Strbak v The Queen [2020] HCA 10

B55/2019
KIEFEL CJ, BELL, KEANE, NETTLE, EDELMAN JJ
Date: 18 Mar 2020
Criminal law – Sentence – Manslaughter – Where appellant pleaded guilty to manslaughter – Where hearing held to determine factual basis upon which appellant to be sentenced – Where acts comprising offence disputed – Where appellant failed to give evidence at sentencing hearing – Whether sentencing judge applied R v Miller [2004] 1 Qd R 548 – Whether sentencing judge drew adverse inferences from appellant's silence in making factual findings – Whether R v Miller [2004] 1 Qd R 548 wrongly decided – Whether sentencing judge permitted to more readily draw inferences adverse to appellant.

Words and phrases – "absence of contradictory evidence", "accusatorial proceeding", "adverse inference", "balance of probabilities", "beyond reasonable doubt", "burden of proof", "civil standard", "contested facts", "contradictory out of court statements", "criminal standard", "fact-finding", "failure to give evidence", "Jones v Dunkel inference", "plea of guilty", "presumption of innocence", "rare and exceptional circumstances", "right to silence", "sentencing hearing", "standard of proof".

Evidence Act 1977 (Qld) – s 132C.

Western Australia v Manado [2020] HCA 9

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 18 Mar 2020 Case Number: P34/2019 P35/2019 P36/2019 P37/2019
Aboriginals – Native title to land and waters – Determinations of – Native title rights and interests – Where s 212(2) of Native Title Act 1993 (Cth) provided that Commonwealth, State or Territory may by legislation confirm existing public access to and enjoyment of beaches and other categories of lands or waters – Where Parliament of Western Australia enacted legislation confirming public access and enjoyment pursuant to s 212(2) – Where s 225(c) of Native Title Act required that determination of native title rights and interests include nature and extent of "any other interests" in relation to determination area – Where s 253 of Native Title Act defined "interest" as including any other right or privilege over or in connection with land or waters – Whether s 225(c) required determination of native title to include reference to confirmation – Whether access and enjoyment capable of confirmation limited to legally enforceable rights and privileges – Whether act of confirmation through legislation enacted in reliance on s 212(2) gave rise to "right" or "privilege" amounting to "other interest" in relation to determination area.

Words and phrases – "confirmation", "confirmed access and enjoyment", "determination area", "determination of native title", "general expectation of public access", "interest", "lack of legal prohibition", "land or waters", "liberty", "native title", "nature and extent of any other interests", "ordinary meaning", "other interest", "principle of public access", "privilege", "public access and enjoyment", "right", "unallocated Crown land".

Coastal Waters (State Powers) Act 1980 (Cth) – ss 4, 5.

Coastal Waters (State Title) Act 1980 (Cth) – s 4.

Land Act 1933 (WA) – ss 3, 164.

Land Administration Act 1997 (WA) – ss 3, 267.

Native Title Act 1993 (Cth) – ss 94A, 212, 225, 253.

Off –shore (Application of Laws) Act 1982 (WA), s 3.

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) – s 14.

The Queen v Guode [2020] HCA 8

KIEFEL CJ, GAGELER, NETTLE, GORDON, EDELMAN JJ
Date: 18 Mar 2020 Case Number: M75/2019
Criminal law – Sentence – Irrelevant consideration – Where respondent pleaded guilty to murder contrary to common law and to infanticide and attempted murder contrary to ss 6(1) and 321M of Crimes Act 1958 (Vic) respectively – Where primary judge sentenced respondent to 26 years and six months' imprisonment with non-parole period of 20 years – Where Court of Appeal allowed appeal against sentence and re-sentenced respondent to 18 years' imprisonment with non-parole period of 14 years – Where respondent's mental condition at time of offending called for application of principles stated in R v Verdins (2007) 16 VR 269 – Where element of offence of infanticide included disturbance of balance of mind – Where infanticide carried significantly shorter maximum penalty than offences of murder and attempted murder – Whether Court of Appeal erred by evaluating appropriateness of sentences imposed for murder and attempted murder in light of lesser maximum penalty for offence of infanticide.

Words and phrases – "acceptance of a plea", "attempted murder", "disturbance of mind", "impaired mental functioning", "infanticide", "irrelevant consideration", "manifestly excessive", "mental condition", "mitigating factors", "moral culpability", "murder", "sentencing", "sentencing considerations", "specific error", "Verdins considerations".

Crimes Act 1958 (Vic) – ss 3, 6(1), 321P(1)-(1A).

Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7

BELL, GAGELER, KEANE, NETTLE, EDELMAN JJ
Date: 18 Mar 2020 Case Number: P26/2019
Stamp duties – Declaration of trust – Partnership – Dissolution – Partnership assets – Nature of partners' rights in relation to partnership assets – Where freehold titles to land held by two partners as joint tenants – Where other partners not registered title holders – Where partnerships dissolved but not wound up upon death of one partner holding titles – Where surviving partner declared trusts over freehold titles for benefit of other partners in proportion to partnership interests – Where Commissioner assessed declaration of trust as "dutiable transaction" within meaning of Duties Act 2008 (WA), s 11(1) – Whether partner holding freehold titles trustee for other partners – Whether declaration of trust by surviving partner holding freehold titles created new interests in land – Whether declaration of trust dutiable transaction.

Words and phrases – "beneficial interest", "conveyance", "declaration of trust", "dissolution", "dutiable transaction", "equitable interest", "non-specific interest", "partners' interest", "partnership property", "right to account and distribution", "transfer", "trust for partnership", "winding up".

Partnership Act 1895 (WA) – ss 30, 32, 33, 50, 57.

Duties Act 2008 (WA) – ss 11(1)(c), 78.

KMC v Director of Public Prosecutions (SA) [2020] HCA 6

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 18 Mar 2020 Case Number: A20/2019
Criminal law – Sentence – Offence of persistent sexual exploitation of child – Where applicant convicted of persistent sexual exploitation of child contrary to s 50(1) of Criminal Law Consolidation Act 1935 (SA) ("CLCA") – Where Chiro v The Queen (2017) 260 CLR 425 handed down after sentencing – Where Chiro required sentencing judge to ask jury to identify underlying acts of sexual exploitation found proved or otherwise sentence on basis most favourable to offender – Where not known which alleged acts of sexual exploitation jury found had been proved beyond reasonable doubt – Where applicant not sentenced on basis of facts most favourable to applicant – Where s 9 of Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA) ("Amending Act") provided that sentence imposed for offence against s 50 of CLCA not affected by error or otherwise manifestly excessive merely because, relevantly, sentencing court sentenced person having regard to acts of sexual exploitation it determined proved beyond reasonable doubt – Whether s 9(1) of Amending Act engaged – Whether sentencing remarks identified acts of sexual exploitation determined by sentencing court to have been proved beyond reasonable doubt.

Words and phrases – "acts of sexual exploitation", "extension of time", "facts most favourable", "persistent sexual exploitation of a child", "proved beyond a reasonable doubt", "sentence", "sentencing judge", "sentencing remarks", "underlying acts".

Criminal Law Consolidation Act 1935 (SA) – s 50.

Statutes Amendment (Attorney –General's Portfolio) (No 2) Act 2017 (SA), s 9.

BHP Billiton Limited v Commissioner of Taxation [2020] HCA 5

KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN JJ
Date: 11 Mar 2020 Case Number: B28/2019
Income tax (Cth) – Assessable income – Controlled foreign companies – Where Pt X of Income Tax Assessment Act 1936 (Cth) ("Act") attributes income of controlled foreign company ("CFC") to Australian resident taxpayer who has sufficiently substantial interest in it – Where BHP Billiton Marketing AG ("BMAG") CFC of BHP Billiton Ltd ("Ltd") – Where income of BMAG derived from sale of commodities purchased by BMAG from BHP Billiton Plc's ("Plc") Australian entities – Where that income included in assessable income of Ltd if Plc's Australian entities "associates" of BMAG – Where company "associate" of entity under s 318(2) of Act if "sufficiently influenced" by entity – Where s 318(6)(b) provides that company "sufficiently influenced" by entity if accustomed or under obligation or might reasonably be expected to act in accordance with directions, instructions or wishes of entity – Where Ltd and Plc part of dual-listed company arrangement and operated as if "single unified economic entity" – Whether Plc's Australian entities "associates" of BMAG – Whether Ltd "sufficiently influenced" by Plc – Whether Plc "sufficiently influenced" by Ltd – Whether BMAG "sufficiently influenced" by Plc and Ltd.

Words and phrases – "assessable income", "associate", "attribute", "combined businesses", "controlled foreign company", "dual-listed", "effective control", "in accordance with the directions, instructions or wishes", "single unified economic entity", "sufficiently influenced", "tainted sales income".

Income Tax Assessment Act 1936 (Cth) – ss 318, 340, 447.

Australian Securities and Investments Commission v King [2020] HCA 4

KIEFEL CJ, GAGELER, KEANE, NETTLE, GORDON JJ
Date: 11 Mar 2020 Case Number: B29/2019
Corporations – Officers – Meaning of "officer" of corporation – Where para (b)(ii) of definition in s 9 of Corporations Act 2001 (Cth) defined "officer" of corporation as person who had capacity to affect significantly corporation's financial standing – Where MFS Investment Management Pty Ltd ("MFSIM") responsible entity of registered managed investment scheme, Premium Income Fund ("PIF") – Where MFSIM entered into loan facility to be used solely for purposes of PIF – Where MFSIM drew down on loan facility to pay debts of other related companies in MFS Group – Where MFSIM secured no promise of repayment of funds to PIF – Where first respondent was Chief Executive Officer of parent company of MFS Group – Where first respondent acted as "overall boss" of MFS Group and assumed "overall responsibility" for MFSIM – Where first respondent approved and authorised disbursement of funds from loan facility knowing no benefit or consideration would pass to PIF – Where first respondent not director of MFSIM at relevant time – Where Australian Securities and Investments Commission alleged first respondent breached duties as officer of MFSIM in contravention of Corporations Act – Whether para (b)(ii) of definition of "officer" in Corporations Act requires person to have acted in recognised position within corporation with rights and duties attached to it – Whether first respondent "officer" of MFSIM.

Words and phrases – "capacity to affect significantly the corporation's financial standing", "chief executive officer", "corporate group", "de facto director", "financial standing", "managed investment scheme", "management of corporation", "misuse of funds", "named office", "office", "officer", "officer of a corporation", "recognised position".

Corporations Act 2001 (Cth) – ss 9, 179, 180, 601FD.

Love v Commonwealth of Australia [2020] HCA 3

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON, EDELMAN JJ
Date: 11 Feb 2020 Case Number: B43/2018 B64/2018
Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Meaning of "aliens" – Where plaintiffs foreign citizens, born outside Australia, who did not acquire Australian citizenship – Where plaintiffs biological descendants of indigenous peoples – Where plaintiffs' visas cancelled under s 501(3A) of Migration Act 1958 (Cth) – Whether statutory citizenship and constitutional alienage co-terminous – Whether an Aboriginal Australian (defined according to tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) can be "alien" within meaning of s 51(xix) of Constitution – Whether s 51(xix) supports application of ss 14, 189 and 198 of Migration Act to plaintiffs – Whether plaintiffs satisfy tripartite test.

Words and phrases – "Aboriginal Australian", "alienage", "aliens", "allegiance", "body politic", "citizen", "connection to country", "essential meaning", "foreign citizen", "indicia of alienage", "nationality", "non-alien", "non-alienage", "non-citizen", "obligation of protection", "political community", "polity", "sovereignty", "spiritual connection", "subject", "territory", "traditional laws and customs", "tripartite test", "unlawful non-citizen".

Constitution – s 51(xix), (xxvii).

Australian Citizenship Act 2007 (Cth) – ss 12, 13, 14, 15, 16.

Migration Act 1958 (Cth) – ss 5, 14, 189, 196, 198, 200, 501.

Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2

KIEFEL CJ, BELL, GAGELER, KEANE, GORDON JJ
Date: 5 Feb 2020 Case Number: S161/2019
Customs and excise – Customs tariff – Tariff classification – Where no duty owed if goods classifiable as medicaments under heading 3004 of Sch 3 to Customs Tariff Act 1995 (Cth) – Where Administrative Appeals Tribunal found vitamin preparations and garcinia preparations classifiable under heading 3004 – Where Comptroller-General of Customs contended vitamin preparations and garcinia preparations classifiable under heading 1704 ("sugar confectionery") or heading 2106 ("food preparations") so that duty owed – Whether vitamin preparations and garcinia preparations excluded from heading 3004 by Note 1(a) to Ch 30 of Sch 3 to Customs Tariff Act – Whether Administrative Appeals Tribunal erred in classifying vitamin preparations and garcinia preparations under heading 3004.

Words and phrases – "duties of customs", "error of law", "essential character", "food preparations", "food supplements", "foods", "French language", "Harmonized System", "Harmonized System Convention", "medicament", "most akin", "ordinary meaning", "products for therapeutic or prophylactic uses", "tariff classification", "Vienna Convention", "vitamin".

Administrative Appeals Tribunal Act 1975 (Cth) – s 44.

Customs Act 1901 (Cth) – s 273GA.

Customs Tariff Act 1995 (Cth) – Schs 2, 3.

International Convention on the Harmonized Commodity Description and Coding System (1983).

Vienna Convention on the Law of Treaties (1969)
– Art 33.

Kadir v The Queen [2020] HCA 1

KIEFEL CJ, BELL, KEANE, NETTLE, EDELMAN JJ
Date: 5 Feb 2020 Case Number: S160/2019 S163/2019
Evidence – Admissibility – Evidence obtained improperly or in contravention of Australian law – Evidence Act 1995 (NSW), s 138 – Where appellants jointly charged on indictment with acts of serious animal cruelty – Where prosecution proposes to tender video-recordings obtained in contravention of Australian law – Where prosecution proposes to tender search warrant evidence and alleged admissions obtained in consequence of contravention of Australian law – Whether difficulty of lawfully obtaining evidence weighs in favour of admission – Whether weighing of competing public interests under s 138 different for evidence obtained in contravention of law as compared to evidence obtained in consequence of contravention of law – Whether each item of evidence admissible.

Words and phrases – "balancing test", "Bunning v Cross discretion", "causal link", "competing public interests", "deliberate contravention of the law", "desirability of admitting evidence", "difficulty of lawfully obtaining evidence", "ease of compliance", "evidence that was obtained improperly or in contravention of an Australian law", "false statement", "illegality", "improperly or illegally obtained", "impropriety", "in consequence of", "misconduct", "probative value", "public interest", "undesirability of admitting evidence", "vigilantism", "way in which the evidence was obtained".

Criminal Appeal Act 1912 (NSW) – s 5F(3A).

Evidence Act 1995 (NSW) – s 138.

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