76 ALJR 966; 190 ALR 601
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 8 Aug 2002 Case Number: S36/1999 S89/1999
Administrative law – Constitutional writs - Procedural fairness - Alleged failure to have regard to relevant documents - Alleged failure to provide reasonable opportunity to respond to adverse material - Jurisdictional error for denial of procedural fairness and natural justice.
Immigration – Refugee - Protection visa - Decision by Minister to refuse application for visa - Review of decision by Refugee Review Tribunal - Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar of Tribunal for purpose of review - Nature and extent of obligation - Migration Act 1958 (Cth), ss 418(3), 424(1).
Constitutional law (Cth) – High Court - Federal Court - Review of administrative decision by officers of the Commonwealth - Migration - Refusal to grant protection visa to claimant for refugee status - Requirement of procedural fairness - Alleged failure to have regard to relevant documents - Alleged failure to provide reasonable opportunity to respond to adverse materials - Jurisdictional error - Availability of constitutional relief under s 75(v) and other relief for denial of procedural fairness and natural justice.
Constitution – s 75(v).
Migration Act 1958 (Cth) – ss 418(3), 424(1).
78 ALJR 780; 206 ALR 189
McHugh, Kirby, Hayne JJ
Date: 2 Apr 2004 Case Number: C3/2003
Practice and procedure – High Court – Application for special leave to appeal from orders of Supreme Court of Australian Capital Territory – Application on motion by an indigent prisoner in custody for an order requiring his production to High Court to enable him to make oral submissions in support of application for special leave – Whether the High Court has power to make such an order – Whether it would do so in the case – Whether application to be decided on the papers.
Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether implied powers under the Constitution to uphold the authority of the High Court – Whether question of power of High Court to order production of an unrepresented prisoner applicant for special leave should be referred to a Full Court – Whether appellate jurisdiction of the High Court engaged at stage of special leave application – Whether differing practices of custodial authorities in different Australian jurisdictions relevant to disposition of motion – Whether motion and application could and should be decided on the papers.
Criminal law and procedure – Sentencing – Convicted federal offender – Statutory provisions governing sentencing of prisoner convicted of offences against Crimes Act 1914 (Cth) – Whether sentencing judge correctly applied federal sentencing law – Whether decision of Court of Appeal attended by sufficient doubt to warrant grant of special leave.
Constitution – ss 73, 75.
Crimes Act 1914 (Cth) – s 16G.
Judiciary Act 1903 (Cth) – ss 35(2), 35AA(2), 78.
High Court Rules – O 55 r 1, O 55 r 39, O 69A r 15.
244 CLR 120
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 5 Oct 2011 Case Number: S121/2011
Criminal law – Sentencing - Mentally retarded appellant pleaded guilty to offence of sexual intercourse with a child under 10 years - Appellant sentenced to nine years' imprisonment and non-parole period of 96 days - Standard non- parole period for offence 15 years - Relevance of statutory provision of a standard non-parole period in sentencing of offenders - Whether "two-stage approach" to sentencing of offenders for offences with standard non-parole periods required or permitted - Whether R v Way (2004) 60 NSWLR 168 correctly decided with respect to operation of standard non-parole periods.
Criminal law – Sentencing - Offender suffering mental retardation - Relevance of mental retardation - Relevance of availability of rehabilitative treatment.
Criminal law – Sentencing - Community protection - Relevance of availability of orders under Crimes (Serious Sex Offenders) Act 2006 (NSW).
Words and phrases – "objective seriousness", "standard non-parole period".
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A, 54A(2), 54B.
79 ALJR 1573; 221 ALR 85
Gleeson CJ, McHugh, Gummow, Hayne, Heydon JJ
Date: 8 Sep 2005 Case Number: P81/2004
Criminal law – Evidence – Directions to jury – Appellant convicted of having in his possession a prohibited drug with intent to sell or supply it to another – Videotape of police interview with appellant admitted in evidence in which certain admissions were made – Trial judge directed that exculpatory statements were not supported by evidence on oath and did not have the same weight as admissions – Whether the trial judge's direction to the jury as to the weight to be accorded to the statements was correct.
Criminal law and procedure – Right to silence – Appellant did not give evidence at trial – Whether summing-up of the trial judge undermined the appellant's right to remain silent at trial.
Words and phrases – "admissions", "right to silence".
The Criminal Code (WA) – Pt VIII, s 638.
220 CLR 181; 78 ALJR 1279; 209 ALR 582
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 8 Sep 2004 Case Number: M272/2003
Constitutional law (Cth) – Parliament - Elections - Registration of political parties - Requirement that political parties have 500 members in order to become registered or remain registered ("the 500 rule") - Prohibition on one person being counted as a member of two or more parties ("the no-overlap rule") - Constitutional validity of electoral scheme.
Constitutional law (Cth) – Parliament - Elections - House of Representatives and Senate - Members and senators to be "directly chosen by the people" - Meaning of "directly chosen" - Whether the 500 rule and the no-overlap rule impair "direct choice" or the making of an informed choice by electors - Whether the 500 rule and the no-overlap rule unreasonably discriminate between candidates - Whether inconsistent with constitutional provision for filling of casual vacancies by persons "publicly recognized by a particular political party".
Constitutional law (Cth) – Implied freedom of political communication - Whether the 500 rule and the no-overlap rule effectively burden freedom of communication about government or political matters - Whether laws reasonably appropriate and adapted to a legitimate purpose - Whether laws proportionate to constitutional provisions.
Constitutional law (Cth) – Implied freedoms - Whether the Constitution contains an implied freedom of political association - Whether the Constitution contains an implied freedom of participation in federal elections - Whether the Constitution contains an implied freedom of political privacy - Whether the 500 rule and the no-overlap rule infringe any such implied freedoms.
Words and phrases – "directly chosen by the people".
Constitution – ss 7, 15, 24, 64 and 128.
Commonwealth Electoral Act 1918 (Cth) – Pt XI.
223 CLR 486; 80 ALJR 43; 221 ALR 764
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 21 Oct 2005 Case Number: S502/2004
Torts – Negligence - Duty of care - Breach of duty - Foreseeability of risk of injury - Local authority - Power of care, control and management of natural reserve - Person suffered injury when diving into a body of water - Whether a reasonable local authority would have erected signs warning against the dangers of diving - Relevance of obviousness of risk to questions of duty and breach.
Marine Parks Act 1997 (NSW).
249 CLR 600; 87 ALJR 1035; 302 ALR 207
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 2 Oct 2013 Case Number: P34/2013
Criminal law – Appeal – Prosecution appeal against sentence – Where appellant pleaded guilty to manslaughter of de facto spouse – Where appellate court resentenced appellant on ground that original sentence manifestly inadequate – Whether appellate court failed to correctly apply principles attending disposition of prosecution appeal against sentence on ground of manifest inadequacy – Whether finding of manifest inadequacy open if similar sentences imposed for comparable offences – Whether appellate court erred in failing to exercise residual discretion.
Criminal law – Sentence – Principles – Relevance of deprived background of Aboriginal offender – Whether appellate court gave appropriate regard to appellant's antecedents and personal circumstances.
Words and phrases – "aggravating factors", "antecedents and personal circumstances", "manifestly inadequate", "mitigating factors", "residual discretion", "social disadvantage".
Criminal Appeals Act 2004 (WA) – ss 24(1), 31, 41(4).
Sentencing Act 1995 (WA) – ss 6, 8(1).
French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 5 Sep 2016 Case Number: M247/2015
Constitutional law (Cth) – Legislative power – Franchise – Power of Parliament to regulate exercise of entitlement to enrol to vote – Provisions of Commonwealth Electoral Act 1918 (Cth) precluding consideration of claims for enrolment or transfer of enrolment and amendment of Electoral Rolls during "suspension period" from 8pm on day of closing of Electoral Rolls until close of polling for election – Whether burden on constitutional mandate that Parliament be "directly chosen by the people" – Whether burden justified by substantial reason – Relevance of Roach v Electoral Commissioner (2007) 233 CLR 162;  HCA 43 and Rowe v Electoral Commissioner (2010) 243 CLR 1;  HCA 46.
Words and phrases – "adequacy in its balance", "burden", "constitutional mandate of popular choice", "directly chosen by the people", "franchise", "necessity", "obvious and compelling alternative", "reasonably appropriate and adapted", "structured proportionality", "substantial reason", "suitability".
Constitution – ss 7, 10, 24, 30, 51(xxxvi).
Commonwealth Electoral Act 1918 (Cth) – ss 94A(4), 95(4), 96(4), 101, 102(4), 103A(5), 103B(5), 118(5).
216 CLR 388; 78 ALJR 324; 204 ALR 26
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 5 Feb 2004 Case Number: S78/2003
Trade Practices – Remedies - Misleading conduct - Lease for unit in retirement village - Lessee liable to pay proportionate part of all expenditure incurred in operating village - Estimate of likely expenditure given to prospective lessees - Estimate misleading - Estimate did not include all expenditure being incurred in operation of the village - Accepted that respondent engaged in conduct in contravention of Pt V of the Trade Practices Act 1974 (Cth) - Relief available under Pt VI of the Trade Practices Act - Whether appellants suffered "loss or damage" within meaning of ss 82 and 87 of the Trade Practices Act - Whether "loss or damage" confined to economic loss - Whether incurring unexpected expenditure can be loss or damage - Whether "loss or damage" is necessarily singular - Whether loss or damage constituted only by any diminution in value of the lease - Whether increased future contributions could be awarded as damages.
Words and phrases – "loss or damage".
Trade Practices Act 1974 (Cth) – ss 4K, 82, 87.
211 CLR 193; 76 ALJR 899; 189 ALR 40
Gaudron, Gummow, Kirby, Hayne, Callinan JJ
Date: 20 Jun 2002 Case Number: B11/2002
Criminal law – Homicide - Unlawful killing - Murder - Deceased died from gun shot wounds to chest - Whether shooting was an unwilled act or an event occurring by accident - What is "the act causing death" - Whether trial judge erred in failing to direct jury about unwilled acts - Whether it is for the jury to decide what is "the act causing death" - Whether trial judge's failure to direct jury gave rise to a substantial miscarriage of justice so that a new trial should be ordered.
Onus of proof – Whether the trial judge erred in directions to jury about onus of proof - Whether trial judge's direction to jury was apt to mislead the jury about the decision which was to be made.
Words and phrases – "act" - "event" - "accident".
The Criminal Code (Q) – s 23.
240 CLR 470; 84 ALJR 246; 264 ALR 9
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 10 Mar 2010 Case Number: D12/2009
Criminal law – Statutes - Extension of offence provision - Fisheries Management Act 1991 (Cth) ("Act"), s 101, created offence of, in certain circumstances, being in possession of foreign boat within Australian Fishing Zone ("AFZ") equipped with nets, traps or other equipment for fishing - Section 12(2) of Act stated that provisions in Act or regulations made in relation to fishing in AFZ extend, to extent capable of doing so, to fishing for sedentary organisms in or on any part of Australian continental shelf not within AFZ as if they were in AFZ - Section 4 of Act defined "fishing" as one or more forms of identified activity - Where appellant indicted for being in possession of, at a place in the waters above Australian continental shelf not within AFZ, foreign boat equipped with nets, traps or other equipment for fishing for sedentary organisms - Whether indictment disclosed offence - Whether s 12(2) extended operation of s 101 to waters above Australian continental shelf not within AFZ - Whether s 101 a provision made "in relation to fishing".
Words and phrases – "Australian Fishing Zone", "fishing", "in relation to".
Fisheries Management Act 1991 (Cth) – ss 4, 12(2), 101.
82 ALJR 629; 244 ALR 205
Gleeson CJ, Gummow, Kirby, Heydon, Crennan JJ
Date: 28 Mar 2008 Case Number: S493/2007
Family Court of Australia – Jurisdiction under s 111B of Family Law Act 1975 (Cth) ("Family Law Act") and reg 16 of Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("Regulations") to make a return order - Whether Family Court was properly satisfied that removal of child from New Zealand to Australia was wrongful - Whether Access Order conferred rights of custody upon father - Whether right of access conferred by Access Order was right to determine place of residence of child.
Family Court of Australia – Jurisdiction under s 111B of Family Law Act and reg 16 of Regulations to make a return order - Whether Family Court was properly satisfied that removal of child to Australia was wrongful - Whether Regulations accommodate application for return order by parent asserting breach of rights of custody vested in a court.
Family Court of Australia – Jurisdiction under s 111B of Family Law Act and reg 16 of Regulations to make a return order - Whether Family Court was properly satisfied that removal of child to Australia was wrongful - Whether removal breached rights of custody held by father by operation of s 17 of Care of Children Act 2004 (NZ) - Whether mother living with father as de facto partner at time child was born.
Family Court of Australia – Jurisdiction to make parenting orders under Pt VII of Family Law Act - Parens patriae or wardship jurisdiction.
Family Court of Australia – Procedure - Power to make order permitting cross- examination in application for return order under reg 16 of Regulations.
Care of Children Act 2004 (NZ) – s 17.
Convention on the Civil Aspects of International Child Abduction – Chs III, IV.
Evidence and Procedure (New Zealand) Act 1994 (Cth) – Pt 6.
Family Law Act 1975 (Cth) – Pt VII, s 111B.
Family Law (Child Abduction Convention) Regulations 1986 (Cth).
Family Law Rules 2004 (Cth).
Interpretation Act 1999 (NZ) – s 29A.
80 ALJR 329; 222 ALR 436
Gleeson CJ, Gummow, Kirby, Callinan, Heydon JJ
Date: 7 Dec 2005 Case Number: A35/2005
Criminal law – Practice and procedure – Trial by judge without a jury – Appellant convicted of three sexual offences against a child – Supposed inconsistencies between the evidence of the complainant and her mother concerning complaints that the complainant made to her mother – Whether the manner in which the trial judge dealt with the supposed inconsistencies involved error.
Criminal law – Practice and procedure – Rule in Browne v Dunn – Application of the rule to an accused in a criminal trial – Supposed inconsistencies between the evidence of the complainant and her mother not put to the complainant in cross-examination – Whether the complainant should have been re-called – Consequences for trial judge's decision-making.
233 CLR 601; 247 ALR 58; 82 ALFR 1061
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 18 Jun 2008 Case Number: M36/2007
High Court – Original jurisdiction - Section 77(i) of Constitution gave the Parliament power to define jurisdiction of federal court other than High Court - Section 476(2)(a) of Migration Act 1958 (Cth) ("Migration Act") provided that Federal Magistrates Court ("FMC") had no jurisdiction in relation to "a primary decision" - Section 476B(2) of Migration Act provided that High Court must not remit matter relating to migration decision to FMC unless FMC had jurisdiction under s 476 - Decision of delegate of defendant to refuse application of plaintiff for protection visa "a primary decision" - Plaintiff applied for mandamus in original jurisdiction of High Court conferred by s 75(v) of Constitution, and also certiorari - Plaintiff sought to have application remitted to FMC - Whether High Court had implied power to remit matter commenced in original jurisdiction to FMC in absence of supporting law made by the Parliament - Whether ss 476 and 476B of Migration Act invalid to extent sections imposed barrier to remitter upon High Court - Whether FMC had authority to receive remitted application in absence of supporting law made by the Parliament - Whether implied constitutional power in High Court to remit, and in FMC or State court to receive, matter so as to protect constitutional jurisdiction of High Court - Whether necessity for implied power of remittal of matter demonstrated by facts in stated case and otherwise within judicial knowledge.
Constitutional law (Cth) – Courts - Jurisdiction - Whether jurisdiction to make orders of certiorari and mandamus against officer of Commonwealth "belonged to" State courts in absence of law made by the Parliament investing State courts with federal jurisdiction - Whether s 109 of Constitution operated with respect to ss 38 and 39(1) of Judiciary Act 1903 (Cth) to render State laws otherwise providing for jurisdiction of State courts inoperative - Whether heads of jurisdiction in ss 75 and 76 of Constitution identifying controversies unknown before federation could be said to "belong to" State jurisdiction.
High Court – Original jurisdiction - Whether there are limitations upon power of the Parliament under s 76(ii) of Constitution to burden exclusively High Court with original jurisdiction.
Words and phrases – "federal jurisdiction", "original jurisdiction", "remitter".
Constitution – ss 75(v), 76(ii), 77, 109.
High Court Rules 2004 – rr 4.
Judiciary Act 1903 (Cth) – ss 38, 39.
Migration Act 1958 (Cth) – ss 476, 476A, 476B, 484.
222 CLR 161; 79 ALJR 609; 213 ALR 668
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 2 Mar 2005 Case Number: S187/2004
Immigration – Refugees - Refugee Review Tribunal - Decision - Judicial review - Tribunal found that appellants had genuine fear of persecution if returned to Russia - Tribunal concluded that Israel was a third country where appellants would have effective protection - Protection visa refused - Whether the Tribunal failed to observe the requirements in ss 36 and 65 of the Migration Act 1958 (Cth) - Whether each appellant was a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees - Whether this means anything other than "refugee" within the meaning of Art 1 of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees.
Immigration – Refugees - International law - Construction of the Convention Relating to the Status of Refugees as amended by Protocol Relating to the Status of Refugees - Whether a non-refoulement obligation precludes removal to a safe third country.
Words and phrases – "protection obligations", "to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol".
Migration Act 1958 (Cth) – ss 36 and 65.
Convention Relating to the Status of Refugees as amended by Protocol Relating to the Status of Refugees – Arts 1, 32 and 33.
228 CLR 470; 80 ALJR 367; 223 ALR 171
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 14 Dec 2005 Case Number: S73/2005
Immigration – Refugee Review Tribunal – Substantial delay between first Tribunal hearing and Tribunal decision – Whether delay resulted in real and substantial risk of prejudice to appellants – Whether prejudice to appellants can be inferred – Whether delay by administrative tribunal constitutes denial of procedural fairness or failure to conduct review as required by law – Whether decision of administrative tribunal may be set aside following substantial delay – Effect of delay on question of assessing appellants' demeanour – Calculation of the period of delay.
Immigration – Refugee Review Tribunal – Migration Act 1958 (Cth), s 420 provides for an objective of administrative review that is "fair, just, economical, informal and quick" – Relevance of s 420 to complaint of delay – Special considerations relevant to delay in asylum cases.
Administrative law – Jurisdictional error – Whether denial of procedural fairness – Significance of delay – Grounds for judicial review – Whether delay affected the Refugee Review Tribunal's capacity to make a proper assessment of demeanour – Whether there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired.
Administrative law – Judicial review – Assessment of fairness of procedures followed by administrative decision-maker – Substantial delay between first Tribunal hearing and Tribunal decision – Limited role of courts performing judicial review – Relevance of general notions of fairness and justice – Relevance of authority on delay in context of appeals against judicial determinations – Importance of contextual factors in assessing complaint of delay.
Administrative law – Jurisdictional error – Substantial delay between first Tribunal hearing and Tribunal decision – Appropriate remedy where denial of procedural fairness due to substantial delay – Failure by appellants to seek mandamus – Whether relief should be refused on discretionary grounds.
Words and phrases – "delay", "jurisdictional error", "procedural fairness".
Migration Act 1958 (Cth) – ss 420, 425(1), 430.
231 CLR 52; 81 ALJR 337; 231 ALR 380
Gummow ACJ, Kirby, Callinan, Heydon, Crennan JJ
Date: 15 Nov 2006 Case Number: S145/2006
Immigration – Refugees - Application for permanent protection visa - Statute requiring Minister to be satisfied Australia owes protection obligations to the applicant under the Convention - Applicant previously granted temporary protection visa for a specified period - Whether previous grant of temporary protection visa entitles applicant on application for a new visa to a presumption of being owed protection obligations under the Convention - Construction of Migration Act 1958 (Cth), s 36 - Construction of the Convention.
Words and phrases – "refugee", "protection obligations", "cessation".
Migration Act 1958 (Cth) – ss 5(1), 36.
Convention relating to the Status of Refugees – Art 1A, Art 1C(5).
Protocol relating to the Status of Refugees.
216 CLR 277; 77 ALJR 1263; 198 ALR 179
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 19 Jun 2003 Case Number: S225/2002
Administrative law – Judicial review – Statutory scheme regulating export of wheat – Consent of statutory authority required for export – Authority precluded from giving consent without approval of nominated company incorporated under Corporations Law – Whether company's withholding of approval was decision of an administrative character made under an enactment – Whether in withholding approval nominated company exercised discretionary power in accordance with a rule or policy without regard to merits of particular case.
Administrative Decisions (Judicial Review) Act 1977 (Cth) – ss 3(1), 5(2)(f), 6(2)(f).
Trade Practices Act 1974 (Cth) – s 51(1).
Wheat Marketing Act 1989 (Cth) – ss 57(1), (1A), (3A), (3B), (6), (7).
223 CLR 331; 79 ALJR 1736; 221 ALR 213
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 29 Sep 2005 Case Number: P85/2004
Private international law – Foreign tort - Choice of law - Appellant was injured in the People's Republic of China - Scope of the lex loci delicti - Where the lex loci delicti treats another connecting factor, such as nationality or domicile, as determining the applicable law - Whether Article 146 of the General Principles of Civil Law of the People's Republic of China was a relevant part of the lex loci delicti - Whether Article 146 of the General Principles of Civil Law of the People's Republic of China made the law of the parties' domicile the applicable law - Whether the doctrine of renvoi applies to international tort claims - Infinite regression of reference.
Evidence – Foreign law - Principles governing admission of evidence of foreign law - Where there is a deficiency of evidence - Whether there is a presumption that foreign law is the same as the law of the forum.
Words and phrases – "lex loci delicti", "choice of law", "renvoi", "single renvoi", "double renvoi", "infinite regression of reference".
80 ALJR 341; 222 ALR 631
Gleeson CJ, Kirby, Hayne, Callinan, Heydon JJ
Date: 8 Dec 2005 Case Number: A36/2005
Negligence – Occupiers' liability – Breach of duty of care – Appellant invited the public to attend a garage sale – Garage sale conducted on the driveway of her residence – Driveway surface was uneven – Respondent entered premises and tripped on driveway – Whether risk posed by the uneven surface of the driveway was obvious and relatively minor and whether such considerations justified conclusion that there was no breach of duty of care.
Negligence – Occupiers' liability – Whether appellant owed a duty of care to the respondent – Scope of duty – Relationship between the duty of care and other elements of the tort of negligence – Relevance of obviousness of the risk.
Negligence – Occupiers' liability – Standard of care – Whether appellant breached duty of care – Nature and extent of the premises – Nature and extent of the danger – Significance of economic relationship between the parties –Significance of the respondent's age – Significance of the appellant's knowledge of the danger – Absence of any precautionary measures – Reasonableness of taking precautionary measures – Relevance of obviousness of the risk – Relevance of inattention by the respondent – Relevance of the application to the evidence of the Wrongs Act 1936 (SA).
Words and phrases – "obvious risk".
Civil Liability Act 1936 (SA) – s 20.
Wrongs Act 1936 (SA) – s 17C.