Cases and authorities

Negligence – Duty of care – Statutory power to report abuse of child to police – Where duty of care in exercise of statutory powers conceded – Where scope or extent of duty disputed – Where primary judge found that no authority acting reasonably could regard failure to report abuse to police as reasonable exercise of statutory powers in present case – Where State conceded that only reasonable exercise of statutory powers in some cases may be to report abuse to police – Whether appropriate in light of concessions to consider scope or extent of duty – Special leave to appeal revoked. Tort – Vicarious liability – Where State conceded vicarious liability for breach of duty of care – Where statute providing for vicarious liability of Crown not in force – Where concession may not have reflected applicable law at relevant times – Special leave to appeal revoked. Words and phrases – "duty of care", "scope or extent of duty", "statutory discretionary power", "vicarious liability". Child Welfare Act 1939 (NSW), Pt XIV, s 148B(5). Civil Liability Act 2002 (NSW), s 43A. Law Reform (Vicarious Liability) Act 1983 (NSW), s 8.

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Where appellant resident of New South Wales – Where appellant indicted for offence against law of Western Australia – Where matter between State and resident of another State within meaning of s 75(iv) of Constitution – Where District Court of Western Australia exercising federal jurisdiction – Whether provisions of State Act picked up and applied as Commonwealth law – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 6(1)(a) of Misuse of Drugs Act 1981 (WA) – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 114(2) of Criminal Procedure Act 2004 (WA). Criminal law – Appeal against conviction – Where trial by jury in federal jurisdiction – Where majority verdict of guilty returned – Whether unanimous jury verdict required by s 80 of Constitution – Whether majority jury verdict permitted under s 114(2) of Criminal Procedure Act 2004 (WA). Words and phrases – "accrued jurisdiction", "diversity jurisdiction", "Federal Judicature", "federal jurisdiction", "jurisdiction", "matter", "picked up and applied", "power", "State jurisdiction", "State legislative capacity", "trial by jury". Constitution, ss 75(iv), 80. Criminal Procedure Act 2004 (WA), s 114(2). Judiciary Act 1903 (Cth), ss 39(2), 79, 80. Misuse of Drugs Act 1981 (WA), s 6(1)(a).

Criminal law – Appeal against conviction – Identification evidence – Where victim's identification of accused on photoboard admitted at trial – Where police conveyed to victim that photograph of suspect would be on photoboard – Where victim had made erroneous previous identification – Whether probative value of identification evidence outweighed by unfair prejudice to accused – Whether evidence should have been excluded under s 137 of Evidence Act 2008 (Vic) – Whether admission of identification evidence occasioned substantial miscarriage of justice. Words and phrases – "identification evidence", "probative value", "substantial miscarriage of justice", "unfair prejudice". Evidence Act 2008 (Vic), s 137.

Criminal law – Appeal – Verdict unreasonable or insupportable having regard to evidence – Where appellant convicted on one count of aggravated indecent dealing with child and acquitted on two counts of aggravated indecent dealing with same child – Where appellant appealed conviction as unreasonable and inconsistent with acquittals – Whether Court of Appeal made independent assessment of sufficiency and quality of evidence in determining whether verdict unreasonable – Whether verdict unreasonable. Words and phrases – "unreasonable verdict".

Income tax – International Organisations (Privileges and Immunities) Act 1963 (Cth) ("the IOPI Act"), s 6(1)(d)(i) – Whether taxpayer "holds an office in" an international organisation to which the IOPI Act applies – Whether taxpayer entitled to exemption from taxation on salaries and emoluments. Income tax – Taxation Administration Act 1953 (Cth), Sched 1, s 357-60(1) – Taxation Determination TD 92/153 – Whether Commissioner bound to exempt taxpayer from taxation. Words and phrases – "expert on mission", "incidents of the relationship", "international organisation", "person who holds an office", "skills and expertise", "specialist services", "terms of engagement". International Organisations (Privileges and Immunities) Act 1963 (Cth), s 6(1)(d), Fourth Schedule, Pt I. Taxation Administration Act 1953 (Cth), Sched 1, s 357-60(1). United Nations (Privileges and Immunities) Regulations 1986 (Cth), reg 10. Taxation Determination TD 92/153. Convention on the Privileges and Immunities of the United Nations [1949] ATS 3, Art V, s 18.

Criminal law – Murder and manslaughter – Where appellant and deceased engaged in joint criminal enterprise – Where act causing death committed in course of joint criminal enterprise – Where Crown could not exclude possibility that deceased had committed act causing death – Where appellant charged with murder or manslaughter of deceased – Whether s 18(1) of Crimes Act 1900 (NSW) encompasses self-killing. Criminal law – Joint criminal enterprise liability – Whether acts or liability for actus reus of crimes committed in course of joint criminal enterprise attributed to co-participant – Whether act of deceased causing death attributable to appellant. Words and phrases – "attribution of acts", "complicity", "constructive murder", "derivative liability", "felo de se", "felony murder", "joint criminal enterprise liability", "primary liability", "rules of attribution", "self-murder", "suicide". Crimes Act 1900 (NSW), s 18.

Constitutional law (Cth) – Constitution – Ch III – State Supreme Courts – Principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 – Where s 74AA of Corrections Act 1986 (Vic) prevents parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person – Where s 74AA identifies plaintiff by name and only applies to plaintiff – Whether s 74AA interferes with sentences imposed by Supreme Court in manner which substantially impairs institutional integrity of Supreme Court – Whether Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 distinguishable – Whether necessary or appropriate to decide if function conferred by s 74AA could validly be exercised by division of Adult Parole Board which includes current judicial officer. Words and phrases – "enlistment of judicial officers", "institutional integrity", "minimum term", "non-parole period", "parole", "party-specific legislation", "sentencing". Constitution, Ch III. Corrections Act 1986 (Vic), ss 61, 61A, 64, 74, 74AA, 74AAB. Corrections Amendment (Parole) Act 2014 (Vic), ss 1, 3. Interpretation of Legislation Act 1984 (Vic), ss 4, 6. Penalties and Sentences Act 1985 (Vic), s 17. Sentencing Act 1991 (Vic), Sched 1, cl 2.

Mining – Application for mining lease – Statutory conditions – Proper construction of s 74(1)(ca)(ii) of Mining Act 1978 (WA) – Where statutory regime conferred power on executive government of State to grant exclusive rights to exploit resources of State – Where s 74(1)(ca)(ii) provided application for mining lease "shall be accompanied by" mineralisation report – Effect of non-compliance with s 74(1)(ca)(ii) – Whether non-compliance with s 74(1)(ca)(ii) invalidated exercises of jurisdiction to progress application through to grant. Words and phrases – "condition precedent", "indefeasibility", "informality", "irregularity", "jurisdictional error", "shall be accompanied by". Mining Act 1978 (WA), ss 71, 74, 74A, 75, 116(2).

Plaintiff S195/2016 v Minister for Immigration and Border Protection Migration – Regional processing – Where plaintiff "unauthorised maritime arrival" – Where plaintiff taken to regional processing centre in Papua New Guinea pursuant to s 198AD of Migration Act 1958 (Cth) – Where Commonwealth entered into arrangements with Papua New Guinea and took other actions in relation to regional processing functions – Where Supreme Court of Papua New Guinea held treatment of unauthorised maritime arrivals at Manus Island regional processing centre contrary to law of Papua New Guinea – Whether Commonwealth had power to enter into arrangements – Whether certain past and potential future actions of Commonwealth, its officers, and Minister invalid under Constitution or s 198AHA of Migration Act 1958 (Cth) by reason of Supreme Court decision – Whether arrangements entered into by Commonwealth not "arrangement[s]" for purpose of s 198AHA by reason of Supreme Court decision. Constitutional law (Cth) – Legislative and executive power – Whether Constitution denies Commonwealth legislative or executive power to authorise or to take part in activity in another country that is unlawful under domestic law of that country. Words and phrases – "domestic law of another country", "ministerial designation", "ministerial direction", "regional processing arrangements", "regional processing country", "regional resettlement arrangement", "unauthorised maritime arrival". Migration Act 1958 (Cth), ss 198AB(1), 198AD, 198

Accident compensation – Transport accident – Statutory compensation scheme – Where respondent involved in motor vehicle accident and subsequently suffered mental disorder or disturbance – Where mental disorder or disturbance required to be "severe" to allow bringing of common law proceedings – Where respondent did not require inpatient psychiatric treatment – Where respondent found not to have suffered symptoms of psychological trauma at upper echelon of range – Whether severity of mental disorder or disturbance assessed only by reference to extent of treatment – Whether narrative test laid down in Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129 followed by Court of Appeal. Words and phrases – "mental disturbance or disorder", "narrative test", "range or spectrum of comparable cases", "serious injury", "severe", "symptoms and consequences". Transport Accident Act 1986 (Vic), s 93.

Graham v Minister for Immigration and Border Protection Te Puia v Minister for Immigration and Border Protection Constitutional law (Cth) – Legislative power of Commonwealth – Constitution, s 75(v) – Where s 503A of Migration Act 1958 (Cth) prevents Minister for Immigration and Border Protection from being required to divulge or communicate certain information to courts – Whether s 503A requires courts to exercise judicial power in manner inconsistent with essential function of courts to find facts relevant to determination of rights in issue – Whether ss 501(3) and 503A(2) inconsistent with s 75(v) of Constitution – Whether s 503A(2)(c) denies High Court and Federal Court ability to enforce legislated limits of power – Whether s 503A(2)(c) curtails capacity of court to discern and declare whether legal limits of power conferred on Minister observed. Migration – Jurisdictional error – Power of Minister to cancel visa on character grounds under s 501(3) of Migration Act 1958 (Cth) – Where decisions to cancel visas took into account information purportedly protected from disclosure under s 503A – Where Minister's understanding of s 503A erroneous – Where error was as to whether Minister's decision would be shielded from review by court in so far as based on information protected from disclosure under s 503A – Whether decisions invalid as consequence of error. Words and phrases – "authorised migration officer", "character test", "fact-finding", "gazetted agency", "judicial power", "national interest", "protected from disclosure", "protected information", "public interest immunity", "purported exercise of a power", "substantial criminal record". Constitution, ss 75(v), 77(i), 77(iii). Migration Act 1958 (Cth), ss 476A, 501, 501A, 501B, 501C, 503A, 503

SZTAL v Minister for Immigration and Border Protection SZTGM v Minister for Immigration and Border Protection Migration – Protection visa – Complementary protection – Cruel or inhuman treatment or punishment – Meaning of "intentionally inflicted" – Degrading treatment or punishment – Meaning of "intended to cause" – Where Refugee Review Tribunal found appellants would likely be imprisoned for short period if returned to Sri Lanka – Where prison conditions in Sri Lanka may not meet international standards – Where definition of "cruel or inhuman treatment or punishment" in s 5(1) of Migration Act 1958 (Cth) requires intentional infliction of pain or suffering – Where definition of "degrading treatment or punishment" in s 5(1) of Migration Act requires intention to cause extreme humiliation – Whether Sri Lankan officials intend to inflict pain or suffering or cause extreme humiliation – Whether intention established by knowledge or foresight of pain or suffering or extreme humiliation. Words and phrases – "complementary protection regime", "cruel or inhuman treatment or punishment", "degrading treatment or punishment", "foresight of result", "intended to cause", "intention", "intentionally inflicted", "oblique intention". Migration Act 1958 (Cth), ss 5(1), 36. Criminal Code (Cth), s 5.2(3).

Criminal law – Incitement – Aiding, abetting, counselling or procuring – Criminal Code 2002 (ACT), ss 45, 47 – Where respondent charged with offence of incitement – Where prosecution alleged that respondent intentionally urged another person to procure third person to commit offence of kidnapping – Where offence of kidnapping not committed – Whether respondent urged commission of offence – Whether offence of incitement to procure offence exists under Criminal Code – Whether aiding, abetting, counselling or procuring commission of principal offence a discrete offence. Words and phrases – "discrete offence", "incitement", "incitement to incite", "incitement to procure", "principal offence", "substantive offence". Criminal Code 2002 (ACT), Pt 2.4. Criminal Code (Cth), s 11.4. Crimes Act 1914 (Cth), ss 5, 7

Criminal law – Criminal procedure – Jury directions – Standard of proof – Where jury directed that Crown required to prove accused's guilt not beyond any doubt but beyond reasonable doubt – Whether such direction error of law – Whether such direction productive of substantial miscarriage of justice. Words and phrases – "any doubt", "beyond reasonable doubt", "fanciful doubt".

Criminal law – Offence of "[p]ersistent sexual exploitation of a child" – Criminal Law Consolidation Act 1935 (SA), s 50 – Where offence comprised of two or more acts of sexual exploitation separated by not less than three days − Where jury required to be unanimous (or agreed by statutory majority) as to same two or more acts of sexual exploitation − Where alleged acts of sexual exploitation ranged from kissing in circumstances of indecency to inserting penis into complainant's mouth − Where jury returned general verdict of guilty by statutory majority − Where not known which alleged acts of sexual exploitation jury agreed had been proved by prosecution − Whether conviction uncertain − Whether judge should have requested special verdict − Whether, after general verdict returned, judge should have asked questions of jury to identify acts of sexual exploitation found to be proved − Whether appellant should have been sentenced on view of facts most favourable to appellant in circumstances where factual basis of jury's verdict unknown. Words and phrases – "acts of sexual exploitation", "actus reus", "course of conduct offence", "extended unanimity", "general verdict", "jury directions", "persistent sexual exploitation of a child", "special questions", "special verdicts". Criminal Law Consolidation Act 1935 (SA), s 50.

Criminal law – Offence of "[p]ersistent sexual exploitation of a child" – Criminal Law Consolidation Act 1935 (SA), s 50 – Where offence requires prosecution to prove two or more acts of sexual exploitation – Whether generalised nature of complainant's evidence meant that not possible to identify two or more acts of sexual exploitation – Whether no case to answer. Criminal law – Permission to appeal – Where orders made included granting application for permission to appeal – Whether majority of Court of Criminal Appeal failed to consider question of permission to appeal. Words and phrases – "acts of sexual exploitation", "distinct occasion", "distinct transaction", "double jeopardy", "extended unanimity", "no case to answer", "particularity", "particulars", "permission to appeal", "persistent sexual exploitation of a child". Criminal Law Consolidation Act 1935 (SA), s 50.

Wilkie v The Commonwealth Australian Marriage Equality Ltd v Cormann Constitutional law (Cth) – Appropriation of moneys from Consolidated Revenue Fund – Construction of Appropriation Act (No 1) 2017-2018 (Cth) – Where Finance Minister made determination under s 10(2) of Appropriation Act (No 1) 2017-2018 (Cth) – Where determination sought to provide funding for postal survey – Whether s 10 of Appropriation Act (No 1) 2017-2018 (Cth) invalid – Whether appropriation for purpose Parliament lawfully determined may be carried out. Statutes – Construction of Appropriation Act (No 1) 2017-2018 (Cth) – Power of Finance Minister to make determination under s 10(2) of Appropriation Act (No 1) 2017-2018 (Cth) – Whether determination made by Finance Minister authorised by s 10 – Whether Finance Minister satisfied urgent need for expenditure not provided for or insufficiently provided for because expenditure unforeseen – Whether Finance Minister erred in law by conflating satisfaction as to urgent need for expenditure with satisfaction as to expenditure being unforeseen – Whether s 10 limited by description of Appropriation Act (No 1) 2017-2018 (Cth) as Act for ordinary annual services of Government. Statutes – Delegated legislation – Validity – Whether direction to Australian Statistician exceeded power of Treasurer under s 9(1)(b) of Census and Statistics Act 1905 (Cth) – Whether information to be collected statistical information – Whether information to be collected in relation to matters prescribed in s 13 of Census and Statistics Regulation 2016 (Cth) – Whether Treasurer had power to specify from whom information to be collected – Whether s 7A of Commonwealth Electoral Act 1918 (Cth) gave Australian Electoral Commission authority to assist Australian Bureau of Statistics in implementing direction. Constitutional law (Cth) – Appropriation of moneys from Consolidated Revenue Fund – Standing to bring action for declarations and injunctions – Whether necessary or appropriate to determine if plaintiffs have standing – Standing of Member of House of Representatives – Standing of Senator – Standing of elector – Standing of incorporated body – Standing of association. Words and phrases – "Advance to the Finance Minister", "appropriation", "Australian Bureau of Statistics", "Australian Electoral Commission", "Australian Statistician", "Consolidated Revenue Fund", "departmental item", "Electoral Commissioner", "expenditure", "Finance Minister", "ordinary annual services of the Government", "plebiscite", "Treasurer", "unforeseen", "urgent need for expenditure". Constitution, ss 53, 54, 56, 81, 83. Appropriation Act (No 1) 2017-2018 (Cth), ss 3, 6, 7, 10, 12, Sched 1. Audit Act 1901 (Cth), s 36A. Australian Bureau of Statistics Act 1975 (Cth), s 16A. Census and Statistics Act 1905 (Cth), s 9. Census and Statistics Regulation 2016 (Cth), s 13. Commonwealth Electoral Act 1918 (Cth), ss 7, 7A. Legislation Act 2003 (Cth), ss 15G, 15H, 15J, 38, 39. Public Governance, Performance and Accountability Act 2013 (Cth), ss 74, 75.

Criminal law – Sentencing – Current sentencing practices – Incest – Crown appeal on ground of manifest inadequacy – Where s 5(2) of Sentencing Act 1991 (Vic) provided that in sentencing an offender a court must have regard to current sentencing practices – Where Court of Appeal held that sentence not wholly outside permissible range reflected in current sentencing practices – Where Court of Appeal held that current sentencing so low as to reveal error in principle – Whether latter conclusion required appellate intervention to correct error reflected in sentence the subject of appeal. Words and phrases – "comparable cases", "current sentencing practices", "manifest inadequacy", "maximum penalty", "reasonable consistency". Sentencing Act 1991 (Vic), s 5(2).

Criminal law – Murder and manslaughter – Act causing death – Where appellant convicted of murder – Where death occasioned by discharge of shotgun held by appellant – Where alternative prosecution case for murder put to jury on basis that shotgun may have discharged as result of unwilled act – Whether unwilled, criminally negligent act or omission can result in conviction for murder where jury satisfied accused possessed intention to kill or inflict grievous bodily harm – Whether breach of duty to use reasonable care and to take reasonable precautions in use and management of dangerous thing can found conviction of murder. Words and phrases – "act causing death", "breach of duty", "criminally negligent", "intention", "intentional offence", "manslaughter", "murder", "omission", "reasonable care", "unwilled act". Criminal Code (Q), ss 289, 302(1)(a).

Constitutional law (Cth) – Implied freedom of political communication – Workplaces (Protection from Protesters) Act 2014 (Tas) – Where Act empowers police officers to direct protesters to leave and stay away from business premises and business access areas under pain of arrest and criminal penalties – Where business premises include forestry land – Where Act allows police officers to give such directions if they reasonably believe protester is preventing, hindering or obstructing business activity, has done so, or is about to do so – Where Forestry Tasmania authorised to undertake forest operations in Lapoinya Forest – Where plaintiffs protested in vicinity of forest operations – Where plaintiffs directed to leave and stay away from forestry land – Where plaintiffs arrested and charged, purportedly under Act, as result of protest activity – Whether Act restricts otherwise lawful protest activity – Whether implied freedom burdened – Whether Act, or provisions thereof, impose impermissible burden on implied freedom in their operation in respect of forestry land and related business access areas – Whether provisions suitable, necessary and adequate in balance. Constitutional law (Cth) – Where plaintiffs charged under Workplaces (Protection from Protesters) Act 2014 (Tas) – Where charges not pursued – Where plaintiffs intend to engage in conduct unless conduct validly proscribed by Act – Whether plaintiffs have standing to challenge validity of Act. Words and phrases – "burden", "business access area", "discriminatory effect", "implied freedom of political communication", "proportionality testing", "protest activity", "protester", "reasonably appropriate and adapted". Forest Management Act 2013 (Tas), ss 8, 9, 13, 21, 22, 23. Workplaces (Protection from Protesters) Act 2014 (Tas), ss 6, 8, 11, 13 and Pt 4.

Appeal – Supreme Court of Nauru – Where Refugees Convention Act 2012 (Nr), s 43(1) confers right to "appeal" to Supreme Court against a decision by Refugee Status Review Tribunal not to recognise person as a refugee – Whether Supreme Court was exercising original jurisdiction when determining "appeal" from Tribunal – Whether appeal from Supreme Court to High Court lay as of right. Migration – Refugees – Where Refugees Convention Act 2012 (Nr), s 3 adopts definition of "refugee" under Refugees Convention as modified by Refugees Protocol – Where Refugees Convention requires "well-founded fear of being persecuted" – Where Tribunal found harm appellant and family faced constituted discrimination, but not persecution – Whether Supreme Court erred in failing to hold that Tribunal applied wrong test in determining whether appellant suffered persecution – Whether Tribunal required total deprivation of appellant's human rights to find persecution. Migration – Refugees – Where Refugees Convention Act 2012 (Nr), s 22(b) provides that Tribunal "must act according to the principles of natural justice and the substantial merits of the case" – Where appellant stated that Somalian authorities were unwilling to assist him and his family due to ethnicity – Where Tribunal relied on country information indicating that there are police from every tribe in Somaliland to conclude appellant would have "some redress from the acts of others" – Whether failure by Tribunal to put substance of information to appellant constituted breach of requirements of procedural fairness. Words and phrases – "appeal", "country information", "credible, relevant and significant", "original jurisdiction", "persecution", "procedural fairness", "well-founded fear of persecution". Appeals Act 1972 (Nr), s 44. Nauru (High Court Appeals) Act 1976 (Cth), ss 5, 8. Refugees Convention Act 2012 (Nr), ss 3, 5(1), 6(1), 22(b), 31(1), 37, 43(1), 44. Refugees Convention (Derivative Status & Other Measures) (Amendment) Act 2016 (Nr), ss 5, 6, 24. Refugees Convention (Amendment) Act 2017 (Nr), ss 4, 5, 6, 7. Agreement between the Government of Australia and the Government of the Republic of Nauru Relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (1976), Art 1. Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), Art 1A(2).

Cecil v Director of Public Prosecutions (Nauru) Kepae v Director of Public Prosecutions (Nauru) Jeremiah v Director of Public Prosecutions (Nauru) Criminal law – Appeal – Supreme Court of Nauru – Appeals Act 1972 (Nr) – Where Act entitles Director of Public Prosecutions to bring appeal against sentence – Where Act gives Supreme Court discretion on appeal to substitute own sentence for sentence of District Court – Where Supreme Court substituted own sentences for sentences of District Court without identifying error by District Court – Where sentences substituted by Supreme Court significantly higher than sentences passed by District Court – Where Supreme Court wrongly concluded it was not required to find error affecting District Court's exercise of sentencing discretion – Where possible to infer Supreme Court considered it would give significantly higher sentences if sentencing afresh – Whether discretion to substitute sentence enlivened – Whether possible to infer Supreme Court considered District Court's sentences manifestly inadequate. Words and phrases – "discretion to substitute a sentence", "manifestly inadequate", "sentencing discretion". Appeals Act 1972 (Nr), ss 3(3), 14(4), 43. Judiciary Act 1903 (Cth), s 26. Nauru (High Court Appeals) Act 1976 (Cth).

Re Canavan Re Ludlam Re Waters Re Roberts [No 2] Re Joyce Re Nash Re Xenophon Constitutional law (Cth) – Parliamentary elections – References to Court of Disputed Returns – Where referred persons elected to Commonwealth Parliament – Where evidence to suggest each held dual citizenship at date of nomination for election – Whether each person incapable of being chosen or of sitting as senator or member of House of Representatives by reason of s 44(i) of Constitution – Proper construction of s 44(i) of Constitution – Whether s 44(i) contains implied mental element in relation to acquisition or retention of foreign citizenship – Whether each person subject or citizen of foreign power or entitled to rights or privileges of subject or citizen of foreign power for purposes of s 44(i). Words and phrases – "a subject or a citizen ... of a foreign power", "constitutional imperative", "foreign citizenship", "incapable of being chosen", "knowledge", "natural-born", "naturalised", "reasonable steps", "voluntariness", "voluntary act", "wilful blindness". Constitution, ss 16, 34, 44(i), 45(i). Commonwealth Electoral Act 1918 (Cth), ss 163, 376.

Practice and procedure – Leave to issue or file document – Where applicant seeks declaration various steps are reasonable in order for him not to be incapable under s 44(i) of Constitution of being chosen as Senator – Whether declaration involves a justiciable matter. Words and phrases – "advisory opinion", "all steps that are reasonably required", "declaration", "foreign citizenship", "hypothetical facts", "incapable of being chosen", "matter". Constitution, s 44(i). High Court Rules 2004 (Cth), r 6.07.2.

Criminal law – Appeal against conviction – Second or subsequent appeal – Application for permission to appeal pursuant to s 353A(1) of Criminal Law Consolidation Act 1935 (SA) – Where appellant convicted of murder – Where expert evidence of time of death given at trial based on stomach contents of deceased – Where new evidence demonstrated expert estimation of time of death at trial erroneous – Where new evidence required to be fresh and compelling in order to be admitted – Where evidence compelling if reliable, substantial and highly probative in context of issues in dispute at trial – Whether new evidence substantial – Whether new evidence highly probative in context of issues in dispute at trial – Whether in interests of justice to consider new evidence on appeal – Whether admission of evidence based on stomach contents at trial occasioned substantial miscarriage of justice – Whether significant possibility jury acting reasonably would have acquitted had new evidence been before it. Words and phrases – "compelling", "fresh evidence", "highly probative in the context of the issues in dispute at the trial", "second or subsequent appeal", "substantial", "substantial miscarriage of justice". Criminal Law Consolidation Act 1935 (SA), s 353

Family law – Financial agreements – Family Law Act 1975 (Cth), Pt VIIIA – Pre-nuptial agreement – Post-nuptial agreement – Where fiancé wealthy – Where fiancée had no substantial assets – Where fiancée moved to Australia for purposes of marriage – Where fiancée had no community or connections in Australia – Where fiancée relied on fiancé for all things – Where pre-nuptial agreement provided to fiancée shortly before wedding – Where fiancé told fiancée that if she did not sign agreement wedding would not go ahead – Where independent solicitor advised fiancée against signing – Where pre-nuptial agreement signed – Where substantially identical post-nuptial agreement signed – Whether agreements voidable for duress, undue influence, or unconscionable conduct – Whether primary judge's reasons adequate. Words and phrases – "adequate reasons", "duress", "financial agreement", "illegitimate pressure", "independent legal advice", "maintenance order", "post-nuptial agreement", "pre-nuptial agreement", "property adjustment", "special disadvantage", "unconscionable conduct", "undue influence", "vitiating factor". Family Law Act 1975 (Cth), ss 90F, 90G, 90K, 90

Migration – Refugees – Appeal from Supreme Court of Nauru – Procedural fairness – Where Refugee Status Review Tribunal must act according to principles of natural justice – Where Refugee Status Review Tribunal did not provide appellant with notice of adverse country information relevant to Tribunal's determination on which it ultimately relied – Whether failure by Tribunal to put substance of information to appellant constituted breach of requirements of procedural fairness. Words and phrases – "complementary protection", "natural justice", "procedural fairness". Appeals Act 1972 (Nr), s 44. Nauru (High Court Appeals) Act 1976 (Cth), s 5, Schedule, Art 1. Refugees Convention Act 2012 (Nr), ss 37, 40(1). Refugees Convention (Derivative Status & Other Measures) (Amendment) Act 2016 (Nr), s 24. Refugees Convention (Amendment) Act 2017 (Nr), s 4. Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).

Practice and procedure – Original jurisdiction – Where plaintiff applied for order to show cause why prohibition, certiorari and injunction should not issue in respect of orders in Supreme Court of Victoria – Where orders of Supreme Court approved settlement by group proceeding plaintiffs with nunc pro tunc authority of group members – Where settlement deed purportedly released defendants in group proceedings from all claims – Where plaintiff contended orders made in federal jurisdiction beyond power as not involving a "matter" – Where various defendants to plaintiff's application sought dismissal or summary dismissal – Where plaintiff did not attempt to appeal impugned orders –Where some issues raised pending in District Court of New South Wales – Where issues raised in original jurisdiction would not arise if plaintiff sought leave to appeal in Supreme Court – Whether Court of Appeal of Supreme Court of Victoria has power to entertain an appeal – Whether appropriate to invoke original jurisdiction of High Court. Constitutional law – Constitutional writs – Where plaintiff seeks constitutional writs against judge of Supreme Court of Victoria – Whether judge exercising federal jurisdiction acting as officer of Commonwealth for purposes of s 75(v) of Constitution and s 33(1)(c) of Judiciary Act 1903 (Cth). Words and phrases – "appeals", "certiorari", "constitutional writs", "construction of settlement deed", "declaration", "extension of time", "federal jurisdiction", "group proceedings", "injunction", "leave to appeal", "officer of the Commonwealth", "prohibition", "settlement of group proceeding". Constitution, ss 73(ii), 75(v). Corporations Act 2001 (Cth), ss 58AA, 500(2). Supreme Court Act 1986 (Vic), ss 17, 33V, 33ZC, 33ZF. High Court Rules 2004 (Cth), r 25.03.3.

Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Court held there was a vacancy in representation of New South Wales in Senate – Where Court made directions for special count of ballot papers to fill vacancy – Where orders sought following special count that Ms Hollie Hughes be declared elected as senator to fill vacancy – Where Ms Hughes nominated for election to Senate at 2016 general election – Where Ms Hughes not declared elected following polling for 2016 general election – Where Ms Hughes appointed to Administrative Appeals Tribunal one year after 2016 general election – Where Ms Hughes resigned from that position upon Court holding there was a vacancy in representation of New South Wales in Senate – Where that position was "office of profit under the Crown" within meaning of s 44(iv) of Constitution – Whether holding position for that period rendered Ms Hughes "incapable of being chosen" as a senator under s 44(iv) of Constitution. Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Jurisdiction of Court to determine whether a person sought to be declared elected to fill a vacancy is disqualified under s 44 of Constitution. Words and phrases – "electoral choice", "electoral process", "hiatus", "incapable of being chosen", "nomination", "office of profit under the Crown", "polling", "process of being chosen", "scrutiny", "special count", "vacancy". Constitution, ss 7, 10, 12, 13, 15, 24, 30, 31, 41, 44, 44(i), 44(iv), 45, 45(i), 51(xxxvi). Administrative Appeals Tribunal Act 1975 (Cth), s 15(1). Commonwealth Electoral Act 1918 (Cth), ss 102(4), 152, 152(1)(a), 152(1)(b), 152(1)(c), 152(1)(d), 155, 156(1), 157, 159, 167(1), 170(2)(a)(i), 175(1), 175(2), 176(1), 177(1), 220, 283(1), 360, 360(1)(vi), 374(ii), 376, 378, 379. Remuneration Tribunal Act 1973 (Cth), s 7.

Industrial law (Cth) – Fair Work Act 2009 (Cth) – Enterprise agreements – Approval of enterprise agreements by Fair Work Commission – Where employer in process of establishing new undertaking – Where existing employees in other undertakings of employer accepted offer of employment in new undertaking – Where enterprise agreement made with those employees before new undertaking commenced operations – Whether agreement required to be made as "greenfields agreement" pursuant to s 172(2) and (4) of Fair Work Act – Where Commission may approve non-greenfields agreement under s 186 of Fair Work Act only where satisfied agreement genuinely agreed to by employees covered by agreement – Whether employees "covered by" agreement from time agreement made or from time employees commence working under agreement. Industrial law (Cth) – Fair Work Act 2009 (Cth) – Enterprise agreements – Approval of enterprise agreements by Commission under s 186 of Fair Work Act – Where Commission, before approving agreement, required to be satisfied that each award-covered employee would be "better off overall" under agreement than under relevant modern award – Where Commission considered agreement passed better off overall test because clause in agreement entitled employees to payment of any shortfall in entitlement under agreement as compared with entitlement under modern award – Whether Commission failed to engage in comparison between agreement and modern award. Words and phrases – "applies", "better off overall test", "covers", "employees covered by the agreement", "greenfields agreement", "will be covered by the agreement". Fair Work Act 2009 (Cth), ss 51, 52, 53, 54(1), 58(1), 172, 173(1), 176, 180(2)(a), 181(1), 182, 185, 186, 187(5), 188, 193, 207.

Esso Australia Pty Ltd v The Australian Workers' Union The Australian Workers' Union v Esso Australia Pty Ltd Industrial relations – Fair Work Act 2009 (Cth) – Protected industrial action – Common requirements for industrial action to qualify as protected industrial action – Where s 413(5) of Fair Work Act requires that persons organising or engaging in proposed protected industrial action "must not have contravened any orders that apply to them" in relation to relevant agreement – Where order obtained from Fair Work Commission requiring union to stop organising certain industrial action – Where union contravened order – Whether union's contravention of order precluded satisfaction of common requirement in s 413(5) in relation to subsequent industrial action – Whether s 413(5) requires only that relevant persons not be contravening orders extant at time of proposed protected industrial action – Whether relevant contraventions limited to contraventions of orders committed in course of organising or engaging in proposed protected industrial action. Industrial relations – Fair Work Act 2009 (Cth) – Organising, taking or threatening action with intent to coerce contrary to s 343 or s 348 of Fair Work Act – Whether person must act with intent that action be unlawful, illegitimate or unconscionable – Whether person must have subjective understanding of factual circumstances rendering action unlawful, illegitimate or unconscionable. Words and phrases – "coercive action", "common requirements", "compliance with orders", "extant orders", "intent to coerce", "must not have contravened any orders", "past contravention", "protected industrial action", "statutory interpretation", "unlawful, illegitimate or unconscionable". Fair Work Act 2009 (Cth), ss 343, 348, Ch 3, Pt 3-3, Div 2.

Industrial relations – Fair Work Act 2009 (Cth) – Entitlement of industrial association to represent industrial interests of persons – Where industrial association registered organisation of employees under Fair Work (Registered Organisations) Act 2009 (Cth) – Where industrial association applied for orders in relation to alleged contraventions of civil remedy provisions in relation to persons – Where persons not members of industrial association but eligible for membership in accordance with eligibility rules of industrial association – Whether industrial association had standing to apply for orders on basis it was entitled to represent industrial interests of persons within meaning of s 540(6)(b)(ii) of Fair Work Act – Whether eligibility of persons for membership of industrial association sufficient to make industrial association entitled to represent industrial interests of persons within meaning of s 540(6)(b)(ii) of Fair Work Act. Words and phrases – "Dunlop Rubber principle", "eligibility rules", "eligible for membership", "entitled to represent the industrial interests of", "industrial association", "registered organisation of employees". Fair Work Act 2009 (Cth), ss 539(2), 540(6)(b)(ii), 546.

Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Supreme Court of Nauru failed to consider notice of motion – Whether failure to consider notice of motion involved denial of procedural fairness – Whether primary judge entitled to treat notice of motion as abandoned – Whether appeal could be dismissed because proper hearing could not have produced different result – Whether appeal incompetent because it would require consideration of interpretation and effect of Constitution of Nauru – Whether failure to consider complementary protection claim – Whether reliance on unsigned and unsworn transfer interview form constituted breach of requirements of procedural fairness. Words and phrases – "appeal", "arbitrary deprivation of life", "assurances to the court", "complementary protection", "denial of procedural fairness", "extortion by the Taliban", "interpretation or effect of the Constitution of Nauru", "notice of motion", "original jurisdiction", "transfer interview form", "unconstitutional nature of detention". Appeals Act 1972 (Nr), ss 44(a), 44(b), 45(a). Nauru (High Court Appeals) Act 1976 (Cth), ss 5, 8. Agreement between the Government of Australia and the Government of the Republic of Nauru Relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (1976), Art 1(A)(b)(i), Art 1(A)(b)(ii), Art 2(a). Refugees Convention Act 2012 (Nr), ss 4(2), 5, 43(1). International Covenant on Civil and Political Rights (1966), Art 6.

Commissioner of the Australian Federal Police v Hart Commonwealth of Australia v Yak 3 Investments Pty Ltd Commonwealth of Australia v Flying Fighters Pty Ltd Criminal law – Forfeiture of property – Where restraining orders made in respect of certain property suspected of being under effective control of person suspected of certain offences – Where person convicted of offences – Where property automatically forfeited to Commonwealth under s 92 of Proceeds of Crime Act 2002 (Cth) – Where companies associated with convicted person applied for orders under s 102 of Proceeds of Crime Act for recovery of interests, or amounts equal to value of interests, in forfeited property – Whether forfeited property "not used in, or in connection with, any unlawful activity" within s 102(3)(a) of Proceeds of Crime Act – Whether "use" requires that property be necessary for or have made unique contribution to unlawful activity – Whether degree of use must be proportionate to forfeiture of property – Whether forfeited property "not derived or realised, directly or indirectly, by any person from any unlawful activity" within s 102(3)(a) of Proceeds of Crime Act – Whether property "derived" if wholly or partly derived from unlawful activity – Whether degree of derivation must be substantial – Whether forfeited property "acquired ... lawfully" within s 102(3)(b) of Proceeds of Crime Act – Whether applicant must prove each step in process of acquisition lawful – Whether applicant must prove all consideration paid for property lawfully acquired. Criminal law – Forfeiture of property – Application under s 141 of Proceeds of Crime Act 2002 (Cth) for order that forfeited property be available to satisfy pecuniary penalty order against convicted person – Where court must be satisfied property subject to effective control of convicted person – Whether effective control determined as at date of restraining order in respect of property or as at date of determination of application under s 141. Words and phrases – "acquired the property lawfully", "derived", "directly or indirectly", "effective control", "forfeiture", "interest", "lawfully acquired", "partly derived", "proceeds of an offence", "proceeds of crime", "realised", "unlawful activity", "used in, or in connection with", "wholly derived". Proceeds of Crime Act 2002 (Cth), ss 5, 6, 16, 17, 18, 24, 24A, 25, 26(4), 29, 42, 44, 66, 67, 92, 102, 104, 116, 141, 314, 315, 317, 329, 330, 337, 338.

Constitutional law (Cth) – Parliamentary elections – Common informer action – Where plaintiff commenced common informer action in original jurisdiction of High Court – Where liability to penalty under Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) requires determination of whether defendant incapable of sitting as member of House of Representatives – Whether High Court has jurisdiction to determine eligibility of member of House of Representatives in common informer action – Proper construction of s 46 of Constitution – Proper construction of s 47 of Constitution. Words and phrases – "common informer", "common informer action", "Court of Disputed Returns", "declared by the Constitution", "declared by this Constitution", "exclusive cognisance", "incapable of being chosen or of sitting", "jurisdiction", "until the Parliament otherwise provides". Constitution, ss 44(v), 45, 46, 47, 49. Common Informers (Parliamentary Disqualifications) Act 1975 (Cth), s 3. Commonwealth Electoral Act 1918 (Cth), s 376.

Constitutional law (Cth) – Judicial power – Ch III – Where plaintiff holder of Absorbed Person Visa and Class BF Transitional (Permanent) Visa – Where plaintiff convicted of trafficking large commercial quantity of cannabis and sentenced to 11 years' imprisonment – Where s 501(3A) of Migration Act 1958 (Cth) requires Minister for Immigration and Border Protection to cancel visa where visa holder has substantial criminal record and is serving sentence of imprisonment on full-time basis – Where plaintiff's visas cancelled under s 501(3A) – Where plaintiff held in immigration detention pending deportation – Whether s 501(3A) authorises or requires detention – Whether purpose of s 501(3A) is to punish – Whether s 501(3A) confers judicial power on Minister – Whether s 501(3A) invalid as contrary to Ch III of Constitution. Words and phrases – "aliens", "character test", "immigration detention", "judicial power", "protection of society", "punishment", "punitive purpose", "substantial criminal record", "unlawful non-citizen". Constitution, Ch III, s 51(xix). Migration Act 1958 (Cth), ss 34, 189, 196, 198, 501, 501

Industrial law – Pecuniary penalties – Where union official contravened civil remedy provision of Fair Work Act 2009 (Cth) – Where union contravened civil remedy provision through union official's conduct – Where s 546 of Fair Work Act provides court can order person to pay pecuniary penalty – Where s 545(1) of Fair Work Act provides court can make any order it considers appropriate if satisfied person contravened, or proposes to contravene, civil remedy provision – Where pecuniary penalties imposed on both union official and union – Whether s 545(1) or s 546 of Fair Work Act or s 23 of Federal Court of Australia Act 1976 (Cth) empowers court to order that union not indemnify union official against pecuniary penalty – Whether s 545(1) or s 546 of Fair Work Act or s 23 of Federal Court of Australia Act empowers court to order that union official not seek or accept indemnity or contribution from union in respect of pecuniary penalty. Words and phrases – "appropriate", "Bragdon order", "civil remedy provision", "deterrence", "implied power", "legally ancillary", "non-indemnification order", "pecuniary penalty", "penal outcome", "penal purpose", "person other than the contravener", "personal payment order", "reasonably required". Fair Work Act 2009 (Cth), ss 545, 546, 564. Federal Court of Australia Act 1976 (Cth), s 23.

Administrative law – Judicial review – Availability of certiorari – Error of law on face of record – Non-jurisdictional error – Building and Construction Industry Security of Payment Act 1999 (NSW) – Where Act confers entitlement to "progress payment" on persons who undertake to carry out construction work under construction contracts and provides scheme for determining disputed claims – Where first respondent made claim for progress payment – Where claim referred to adjudicator for determination – Where adjudicator made error of law in reasons for determination – Where reasons form part of record – Whether Act ousts jurisdiction of Supreme Court of New South Wales to make order in nature of certiorari to quash determination for non-jurisdictional error of law on face of record. Words and phrases – "clear legislative intention", "error of law on the face of the record", "interim entitlement", "jurisdictional error", "non-jurisdictional error", "order in the nature of certiorari". Building and Construction Industry Security of Payment Act 1999 (NSW), Pts 2, 3. Supreme Court Act 1970 (NSW), ss 22, 69.

Administrative law – Judicial review – Building and Construction Industry Security of Payment Act 2009 (SA) – Where subcontract provided for sum to be paid to subcontractor after issue of certificate of occupancy – Where issue of certificate of occupancy required certification from builder that building work performed in accordance with head contract – Where adjudicator appointed to determine disputed payment claim – Where adjudicator determined provisions of subcontract ineffective because pay when paid provisions – Whether adjudicator's determination involved error of law – Whether adjudicator's determination should be quashed. Administrative law – Judicial review – Availability of certiorari – Error of law on face of record – Whether Building and Construction Industry Security of Payment Act 2009 (SA) ousts jurisdiction of Supreme Court of South Australia to make order in nature of certiorari to quash adjudicator's determination for non-jurisdictional error of law on face of record. Words and phrases – "contingent or dependent on the operation of", "error of law on the face of the record", "order in the nature of certiorari", "pay when paid provision", "retention provisions". Building and Construction Industry Security of Payment Act 2009 (SA), Pts 2, 3. Development Act 1993 (SA), s 67. Development Regulations 2008 (SA), reg 83, Sched 19

Criminal law – Appeal against conviction – Application of proviso – Where appellant indicted for attempting to possess prohibited drug with intent to sell or supply to another – Where police replaced prohibited drug with another substance – Where trial judge and counsel erroneously assumed s 11 of Misuse of Drugs Act 1981 (WA) applied deeming possession of quantity of drugs sufficient to prove possession for purpose of sale or supply to another – Where jury erroneously directed that proof of possession of substitute "drugs" would suffice to prove intention to sell or supply to another – Where intention not otherwise live issue at trial – Where sole issue at trial was appellant's possession of substitute "drugs" – Where prosecution concedes erroneous direction as to intention but contends "no substantial miscarriage of justice has occurred" – Whether "no substantial miscarriage of justice has occurred" – Whether misdirection precluded application of proviso. Words and phrases – "deemed intent", "error of outcome", "error of process", "fundamental defect", "fundamental error", "fundamentally flawed", "inevitability of result", "intention", "loss of a fair or real chance of acquittal", "miscarriage of justice", "negative proposition", "proviso", "reasonable jury", "substantial miscarriage of justice", "this jury". Criminal Appeals Act 2004 (WA), s 30. Misuse of Drugs Act 1981 (WA), ss 6(1)(a), 11, 33(1), 34.

Criminal law – Appeal against conviction – Where appellant convicted of one count of unlawfully doing grievous bodily harm – Where complainant suffered broken hip in three places following confrontation with appellant – Where appellant gave evidence that he pushed complainant causing complainant to stumble backwards three or four metres and fall to ground – Where s 23(1) of Criminal Code (Q) provides person not criminally responsible for event that ordinary person would not reasonably foresee as possible consequence – Where Court of Appeal observed there were "equally open" interpretations of evidence – Whether jury verdict unreasonable or unsupported by evidence. Criminal law – Appeal against conviction – Where s 23(1) of Criminal Code (Q) provides person not criminally responsible for event that ordinary person would not reasonably foresee as possible consequence – Where Court of Appeal found it open to jury to conclude ordinary person could have foreseen injury of kind suffered by complainant – Whether Court of Appeal applied incorrect test – Whether any difference between what ordinary person "could" and "would" reasonably foresee. Words and phrases – "could have foreseen", "grievous bodily harm", "possibility", "probability", "unreasonable verdict", "verdict unsupported by evidence", "would have foreseen". Criminal Code (Q), s 23.

Town planning – Conditions on development – Where development approval permitted reconfiguration of lot into two lots – Where development approval subject to conditions – Where conditions included requirement to provide easement to allow access, on-site manoeuvring and connection of services and utilities – Where easement executed by registered proprietors of original lot did not comply with condition – Where Council approved survey plan to give effect to reconfiguration – Where titles for new lots created – Whether successor in title obliged to provide easement complying with condition. Town planning – Enforcement orders – Where Planning and Environment Court of Queensland may make enforcement order if satisfied that development offence "has been committed" – Where development offence to "contravene" development approval – Whether successor in title committed development offence by failing to provide easement complying with condition. Words and phrases – "binds the owner, the owner's successors in title and any occupier of the land", "contravene", "development", "development approval", "development offence", "enforcement order", "fail to comply with", "land", "lot", "the land the subject of the application to which the approval relates". Acts Interpretation Act 1954 (Q), s 36(1), Sched 1. Sustainable Planning Act 2009 (Q), ss 7, 10(1), 244(a), 245, 580, 601(1)(a), 604(1)(a), 605(1)(e), Sched 3.

Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Ms Skye Kakoschke-Moore and Mr Timothy Storer nominated for election as senator for State of South Australia as nominees of Nick Xenophon Team ("NXT") – Where Ms Kakoschke-Moore listed as third of four in order of NXT candidates, before Mr Storer – Where Ms Kakoschke-Moore returned as elected – Where Ms Kakoschke-Moore was British citizen at time of nomination – Where Ms Kakoschke-Moore subsequently renounced British citizenship – Where Mr Storer ceased to be member of NXT – Where Ms Kakoschke-Moore held incapable of being chosen or of sitting by reason of s 44(i) of Constitution – Whether vacancy in Senate should be filled by declaring Ms Kakoschke-Moore as elected – Whether Ms Kakoschke-Moore should be included in special count – Whether Mr Storer should be excluded from special count. Words and phrases – "above the line", "electoral choice", "electoral process", "incapable of being chosen or of sitting", "political party", "process of being chosen", "special count", "true legal intent of the voters". Constitution, ss 15, 44. Commonwealth Electoral Act 1918 (Cth), ss 162, 166, 168, 169, 181(2), 239, 269, 272, 360(1)(vi), 376.

Criminal law – Appeal against conviction – Murder and manslaughter – Intention to kill or cause grievous bodily harm – Incorrect advice – Where appellant's case was that he had not intended to kill or cause grievous bodily harm – Where appellant incorrectly advised that giving evidence would likely lead to cross-examination on prior convictions – Where chance of cross-examination on prior convictions possible but not likely due to s 15(2) of Evidence Act 1977 (Q) – Where appellant's account of incident to his solicitor inconsistent with prior statements to police – Where appellant was correctly advised that giving evidence would likely lead to cross-examination on inconsistencies – Where appellant gave evidence on appeal that had he been physically and mentally well and absent the incorrect advice he would have given evidence at trial – Where no evidence to suggest trial would have been conducted differently absent the incorrect advice – Whether no miscarriage of justice. Words and phrases – "criminal history", "cross-examination", "decision not to give evidence", "fair trial", "inconsistent evidence", "incorrect advice", "intent", "intoxication", "miscarriage of justice", "murder", "prior convictions". Criminal Code (Q), ss 644, 668E(1). Evidence Act 1977 (Q), s 15.

Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Nauru Department of Justice and Border Control determined appellant not refugee and not entitled to complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Tribunal adopted reasoning of Secretary – Whether Tribunal failed to consider country information before it – Whether Tribunal acted in way that was procedurally unfair by failing to put to appellant nature and content of country information it relied upon. Words and phrases – "appeal", "country information", "procedural fairness". Appeals Act 1972 (Nr), s 44(a). Refugees Convention Act 2012 (Nr).

Burns v Corbett Burns v Gaynor Attorney General for New South Wales v Burns Attorney General for New South Wales v Burns New South Wales v Burns Constitutional law (Cth) – Chapter III – Where complaints made under Anti-Discrimination Act 1977 (NSW) came before Civil and Administrative Tribunal of New South Wales ("NCAT") – Where parties to disputes residents of different States – Where common ground that NCAT exercised State judicial power in hearing and determining disputes – Where common ground that NCAT not a "court of a State" – Whether Ch III of Constitution contains implication preventing any party to federal compact from conferring adjudicative authority in respect of matters listed in ss 75 and 76 of Constitution on organ of government, federal or State, other than a court referred to in Ch III. Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Where Civil and Administrative Tribunal Act 2013 (NSW) purports to confer jurisdiction on NCAT to determine disputes between residents of different States – Whether State law alters, impairs or detracts from operation of Judiciary Act 1903 (Cth), s 39(2). Words and phrases – "adjudicative authority", "administrative tribunal", "alter, impair or detract", "belongs to or is invested in", "constitutional implication", "court", "court of a State", "diversity jurisdiction", "federal Judicature", "federal jurisdiction", "inconsistency", "integrated national court system", "judicial power", "jurisdiction", "matter", "negative implication", "residents of different States", "State jurisdiction". Constitution, Ch III, ss 51(xxxix), 71, 73(ii), 75, 76, 77, 106, 107, 108, 109. Judiciary Act 1903 (Cth), ss 38, 39. Anti-Discrimination Act 1977 (NSW), ss 49ZT, 114. Civil and Administrative Tribunal Act 2013 (NSW), ss 28(2), 29(1), 32. Interpretation Act 1987 (NSW), s 31.

Migration – Pt 2 Div 3 subdiv AB of Migration Act 1958 (Cth) – Where plaintiff applied for protection visa – Where plaintiff claimed real chance of harm due to being Christian – Where plaintiff claimed to attend church regularly – Where delegate of Minister for Immigration and Border Protection called reverend of church and reverend provided information on plaintiff's attendance at church – Where delegate did not provide plaintiff with information provided by reverend or invite plaintiff to comment on it – Where delegate refused to grant protection visa to plaintiff – Whether delegate failed to comply with s 57(2) of Migration Act. Migration – Pt 7AA of Migration Act 1958 (Cth) – Where plaintiff "fast track review applicant" within meaning of Migration Act – Whether decision affected by jurisdictional error because of failure to comply with s 57(2) a "fast track reviewable decision" within meaning of Pt 7AA – Where "new information" defined as documents or information not before Minister when deciding to refuse to grant protection visa that Immigration Assessment Authority considers may be relevant – Power of Authority to get new information – Power of Authority to consider new information – Obligation of Authority to invite applicant to comment on new information – Nature of review by Authority – Whether Authority's decision not to interview plaintiff and certain other persons or to have regard to certain information provided by plaintiff legally unreasonable. Words and phrases – "condition of valid performance", "decision", "decision that is made in fact", "de novo consideration of the merits", "exceptional circumstances", "fast track reviewable decision", "jurisdictional error", "legally effective decision", "legally unreasonable", "new information", "not a valid decision", "not previously known", "personal information", "relevant information", "review material", "unreasonable failure to exercise power", "would be the reason, or part of the reason for refusing to grant a visa". Migration Act 1958 (Cth), ss 5, 46A, 54, 55, 56, 57, 69, Pt 7AA. Migration Regulations 1994 (Cth), reg 4.43.

Migration – Partner visa – Criteria prescribed for grant of visa – Where Minister for Immigration and Border Protection must refuse to grant visa if not satisfied that criteria prescribed for grant of visa met – Where delegate of Minister refused to grant visa – Review of decision by Administrative Appeals Tribunal – Where Tribunal not satisfied that visa application made within 28 days or that there were compelling reasons for not applying that criterion – Where Tribunal also not satisfied that visa applicant did not have outstanding debts to the Commonwealth or that appropriate arrangements had been made for payment of debts – Where Tribunal made error of law by assessing whether compelling reasons existed as at time of visa application instead of as at time of Tribunal's decision – Whether error of law in relation to one criterion was jurisdictional error where another criterion was not met. Words and phrases – "compelling reasons", "discretion to refuse relief", "error of law", "error of law on the face of the record", "fundamental error", "independent basis", "jurisdictional error", "materiality", "non-jurisdictional error", "reasonably and on a correct understanding and application of the applicable law", "residual discretion", "satisfied", "void", "voidable". Migration Act 1958 (Cth), s 65. Migration Regulations 1994 (Cth), Sched 2, cll 820.211, 820.223, Sched 4, public interest criterion 4004.

Constitutional law (Cth) – Parliamentary elections – Senate – Questions referred to Court of Disputed Returns by Senate – Where senator was foreign citizen at date of nomination for election – Where renunciation of foreign citizenship registered after return as duly elected senator – Whether senator disqualified by reason of s 44(i) of Constitution because of foreign citizenship – Whether foreign law irremediably prevented participation in representative government. Words and phrases – "a subject or a citizen ... of a foreign power", "constitutional imperative", "incapable of being chosen", "irremediably prevent". Constitution, s 44(i).

Criminal law – Appeal against convictions – Jury direction – Prior inconsistent statement – Where appellant indicted for indecent assault, aggravated indecent assault and rape – Where consent main issue at trial – Where complainant made preliminary complaints to mother and others – Where mother gave evidence at committal hearing – Where mother gave different account at trial – Where trial judge directed jury committal evidence could only be used to assess mother's credibility – Where mother confirmed at trial she had given that evidence at committal and her memory was better at committal – Whether mother actually adopted committal evidence – Whether prior inconsistent statement available to jury to assess complainant's credibility – Whether trial judge misdirected jury. Criminal law – Appeal against convictions – Application of proviso – Where Court of Appeal found erroneous jury direction – Where prosecution disavowed reliance on proviso – Where Court of Appeal applied proviso without notice and notwithstanding disavowal – Whether Court of Appeal bound to put appellant on notice of possibility of applying proviso. Words and phrases – "preliminary complaint", "prior inconsistent statement", "proviso", "substantial miscarriage of justice". Criminal Code (Q), ss 337, 349, 352, 668E(1A).