Cases and authorities

Plaintiff S297/2013 v Minister for Immigration and Border Protection Practice and procedure – Writ of mandamus – Sufficiency of return – Court ordered writ of mandamus issue directing Minister to consider and determine plaintiff's protection visa application according to law – Minister refused plaintiff's application and certified compliance with writ – Plaintiff alleged Minister's decision not made according to law – Plaintiff sought to plead to return of writ. High Court Rules 2004 (Cth), rr 6.01.1, 25.08.5, 25.08.7. Migration Regulations 1994 (Cth), Sched 2, cl 866.226.

MYT Engineering Pty Limited & Ors v Mulcon Pty Limited Corporations - Deed of company arrangement - Whether instrument required to be executed as a deed. Corporations - Deed of company arrangement - Instrument not executed in accordance with company's articles of association - Whether instrument made by or on behalf of company - Whether instrument authenticated so as to bind company. Corporations - Deed of company arrangement - Statute required instrument to be executed within specified time - Whether s 445G(3) of the Corporations Law applies when instrument not executed within specified time. Words and phrases - "authenticated" - "deed" - "deed of company arrangement" - "executed by or on behalf of the company" - "substantially complied with". Corporations Law, ss 182, 437C, 444B, 445

Kenny & Good Pty Ltd & Anor v MGICA (1992) Ltd Tort - Misrepresentation - Valuation of property - Representation as to present and future value - Duty of care - Scope of liability of valuer - Causation and remoteness of loss - Whether liability to financier includes losses arising from subsequent fall in property market. Damages - Negligence - Misrepresentation - Valuation of property - Remoteness and measure of damages - Whether contractual remoteness test applicable. Trade practices - Misleading and deceptive conduct - Valuation of property - Remoteness and measure of damages. Valuation - Property - Principles - Efficiency of market - Foreseeable risks - Whether factored into value. Fair Trading Act 1987 (NSW), ss 42, 68. Trade Practices Act 1974 (Cth), ss 52, 82.

AIF v AMS Constitutional law - Inconsistency between Commonwealth and State laws - Family law - Guardianship and custody of child - Whether Family Law Act 1975 (Cth), s 63F(1) inconsistent with Family Court Act 1975 (WA), s 35. Constitutional law - Powers of the Commonwealth Parliament - Territories - Whether sufficient nexus with Commonwealth law concerning guardianship and custody of children born in Territory to parents then residing there. Constitutional law - Interpretation - Whether implications arise from international law. Constitutional law - Freedom of interstate intercourse - Movement of persons - Whether Northern Territory (Self-Government) Act 1978 (Cth), s 49 inconsistent with exercise of judicial discretion under Family Court Act 1975 (WA), s 36A - Guardianship and custody orders - Whether necessary to determine whether requirement of orders that parent not change child's principal place of residence greater than reasonably required to achieve legislative object. Federal jurisdiction - Family law - Guardianship and custody application - Parents resident in the Northern Territory at birth of ex-nuptial child - Whether Family Court of Western Australia exercising federal jurisdiction under Family Law Act 1975 (Cth), s 63F(1). Federal jurisdiction - Inconsistency between Commonwealth and State laws - Matter arising under s 76(i) of the Constitution - Whether jurisdiction invested by Judiciary Act 1903 (Cth), s 39(2). Federal jurisdiction - Appeals - Family law - Whether appeal to Supreme Court of Western Australia an exercise of federal jurisdiction. Family law - Guardianship and custody orders - Variation - Exercise of discretion by trial judge - Best interests of child - Whether requirement that custodial parent provide "compelling reasons" to justify relocation within Australia an error of law - Whether order that custodial parent may relocate is an order "with respect to" welfare or custody. Words and phrases - "compelling reasons". The Constitution, ss 76(i), 76(ii), 77(iii), 109, 122. Family Court Act 1975 (WA), ss 27(5), 28, 28A, 34, 35, 36, 36A. Family Court Act 1997 (WA), ss 68, 69, 246. Family Law Act 1975 (Cth), ss 60E(3), 61C, 63F(1), Pt VII, 94, 94AA. 2. Judiciary Act 1903 (Cth), s 39(2). Northern Territory (Self-Government) Act 1978 (Cth), s 49. GLEESON CJ, Mc

; Ex parte McNally & Anor Re Wakim; Ex parte Darvall Re Brown & Ors; Ex parte Amann & Anor Spinks & Ors v Prentice Constitutional law - Judicial power of the Commonwealth - Cross-vesting of federal, State and Territory jurisdiction - Whether Chapter III of the Constitution contains an exhaustive delimitation of the original jurisdiction that may be conferred on a federal court. Constitutional law - State and Commonwealth legislative power - State law vesting State jurisdiction in Federal Court - Whether State has power to confer State jurisdiction on federal courts - Whether Commonwealth has power to consent to conferral of State jurisdiction on federal courts - Doctrine of separation of powers considered. Constitutional law - Jurisdiction - Territories - Commonwealth law vesting Territory jurisdiction in Federal Court - Whether Commonwealth law applying in Territory is a "law made by the Parliament" for the purposes of Chapter III of the Constitution. Constitutional law - Interpretation - Whether constitutional validity turns on legislative purpose or intent - Whether constitutional validity turns on legislative consent - Consideration of "co-operative federalism". High Court - Stare decisis - Whether equally divided previous decision of Court is binding precedent - Whether necessary to reopen or reconsider previous decision. High Court - Appeal - Earlier challenge to validity of legislation dismissed - Issue estoppel and res judicata - Whether a party to earlier proceedings or another can reagitate issues decided in earlier proceedings - Whether order of Federal Court finally determined the rights of the parties. Federal Court of Australia - Jurisdiction - Bankruptcy proceedings - "Matter" - "Accrued jurisdiction" - Whether matter includes non-federal claim - Whether claims arise out of a common substratum of facts. Corporations - Winding up - Examination orders - Whether Corporations Law purports to confer non-judicial power on federal court. 2. Words and phrases - "matter" - "accrued jurisdiction" - "justiciable controversy". The Constitution, Ch III, ss 51(xxxix), 71, 76(ii), 77(i), 109, 122. Judiciary Act 1903 (Cth), s 23(2)(a). Corporations Act 1989 (Cth), ss 49, 51, 51A, 56. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 9. Corporations (New South Wales) Act 1990 , s 42. Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 4. Corporations Law, Pt 5.9, ss 447A, 596, 597(9).

Attorney-General of the Commonwealth v Breckler & Ors Constitutional law - Judicial power of the Commonwealth - Power of Superannuation Complaints Tribunal to make decisions deemed to be decisions of trustees of regulated superannuation fund - Whether binding, authoritative and curially enforceable determination - Whether determination is subject to collateral attack. High Court - Practice - Intervention and amicus curiae - Circumstances where appropriate to allow and refuse. Words and phrases - "lawful excuse", "reasonable excuse". Income Tax Assessment Act 1936 (Cth), s 6E(1), Pt IX. Superannuation Industry (Supervision) Act 1993 (Cth), ss 19, 34, 285, 315, 341, 343, 350. Superannuation (Resolution of Complaints) Act 1993 (Cth), ss 14, 20, 37, 41(3). Superannuation Industry (Supervision) Regulations, reg 13.17B. GLEESON CJ, GAUDRON, Mc

Lowndes v The Queen Criminal law - Sentencing - Sexual offences - Appellant sentenced to six years with parole eligibility - Crown appeal - Order for indefinite imprisonment made by appellate court - Considerations relevant to making indefinite imprisonment order - No material error by sentencing judge or in resulting sentence identified - Appellate intervention and re-exercise of sentencing discretion impermissible. Sentencing Act 1995 (WA), ss 89, 98. GLEESON CJ, GAUDRON, Mc

& Anor Sharples v Hill & Anor High Court - Original jurisdiction - Court of Disputed Returns - Case stated pursuant to Judiciary Act 1903 (Cth), s 18 - Petition as to validity of election of a Senator - Disqualification under s 44(i) of the Constitution - Whether Div 2 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) exhaustively prescribes Court's jurisdiction to determine matters concerning the constitutional and legislative disqualifications of a Senator or whether jurisdiction also conferred by Div 1 of Pt XXII. Constitutional law - Judicial power - Petition as to validity of election of a Senator - Whether Div 1 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) confers non-judicial power. Constitutional law - Commonwealth legislative power - Whether Parliament has "otherwise provided" in respect of the constitutional qualifications of Senators by enacting Div 1 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth). Constitutional law - Sovereignty - Legislative, executive and judicial separation from the United Kingdom - Meaning of the "Crown" - Operation of the Australia Acts 1986. Elections - Senate - Court of Disputed Returns - Petition - Senator a United Kingdom citizen when nominated - Whether incapable of being chosen as a Senator - Meaning of "foreign power" in s 44(i) of the Constitution - Whether candidate with dual citizenship is required by s 44(i) of the Constitution to take reasonable steps to renounce foreign citizenship - Whether elected person has committed an "illegal practice" proscribed by the Commonwealth Electoral Act 1918 (Cth) - Whether, if Senator not duly elected, election should be declared absolutely void or a recount ordered. Words and phrases - "foreign power" - "Commonwealth" - "Crown" - "United Kingdom" - "Queen" - "until the Parliament otherwise provides" - "illegal practices" - "validity of any election or return" - "disputed election". The Constitution, cll 2, 5, 9, ss 1, 2, 10, 31, 34, 44(i), 46, 47, 51(xxxvi), 51(xxxvii), 51(xxxviii), 51(xxxix), 58, 59, 60, 61, 76(ii), 79, 105, 122 and Sched. Australia Act 1986 (UK), ss 1, 7(5), 10, 11. Australia Act 1986 (Cth), ss 1, 7(5), 10, 11. Commonwealth Electoral Act 1918 (Cth), ss 162, 163, 170, 326, 339(3), Div 1 and Div 2 of Pt XXII. Common Informers (Parliamentary Disqualifications) Act 1975 (Cth), s 3(1). Judiciary Act 1903 (Cth), s 18.

Elections - Senate - Court of Disputed Returns - Petition disputing validity of half Senate election - Validity of Commonwealth Electoral Act 1918 (Cth), ss 211, 211A - Deposit lodged pursuant to s 170 - Whether unsuccessful candidate entitled to refund - Powers of Court pursuant to Commonwealth Electoral Act 1918 (Cth) - Remedies. Constitutional law - Implied constitutional rights - Freedom of communication about political matters - Whether entitles election candidate to media coverage. The Constitution, ss 7, 24. Commonwealth Electoral Act 1918 (Cth), ss 170, 211, 211A, 355, 358, 362, 364.

Ditchburn v Australian Electoral Officer Elections - Senate - Court of Disputed Returns - Petition disputing validity of half Senate election - Validity of ticket voting system - Whether Senators "directly chosen by the people". The Constitution, ss 7, 24. Commonwealth Electoral Act 1918 (Cth), ss 211, 211A, 239, 272, 273.

Ditchburn v Divisional Returning Officer Elections - House of Representatives - Court of Disputed Returns - Petition disputing validity of House of Representatives election - Whether preferential voting system constitutes plural voting - Whether members "directly chosen by the people". The Constitution, ss 7, 24, 30. Commonwealth Electoral Act 1918 (Cth), ss 240, 274.

Melbourne v The Queen Criminal law - Evidence - Character evidence - Evidence of accused's good character adduced - Relevance of character evidence to propensity to commit offence charged - Relevance of character evidence to accused's credibility - Directions to jury - Whether directions about use of character evidence mandatory. Mc

Walsh v Law Society of New South Wales Appeal - Jurisdiction - New South Wales Court of Appeal - Appeal from Legal Services Tribunal - Whether court exercising statutory or inherent jurisdiction with respect to the discipline of legal practitioners - Whether jurisdiction conferred by statute entitled court to treat appeal as a new hearing. Appeal - Nature of appeal - Consideration by court of matters outside grounds of appeal and particulars - Procedural fairness to parties and non-parties - Substitution of views of court for findings of primary tribunal - Whether errors of law by court require rehearing of appeal and cross-appeal. Legal practitioners - Solicitors - Professional misconduct - Unsatisfactory professional conduct - Conduct in connection with the practice of law - Fitness to remain on roll of legal practitioners. Words and phrases - "appeal". Courts Legislation Further Amendment Act 1995 (NSW). Judiciary Act 1903 (Cth), s 37. Legal Profession Act 1987 (NSW), ss 11, 127(b), 167, 168, 171C, 171F, 171M. Supreme Court Act 1970 (NSW), s 75

The Commissioner of Taxation v Montgomery Income tax - Income - Income according to ordinary concepts and usage of mankind - Lease incentive payment received by taxpayer relocating premises - Whether income or capital - Whether receipt should be characterised as an incentive to pay greater rent - Whether receipt analogous to lease premium payment - Whether receipt part of profit-making undertaking or scheme - Whether receipt was an ordinary incident of a transaction in the course of the taxpayer's business - Whether receipt must be in the ordinary course of the taxpayer's business. Words and phrases - "income", "profit", "gain", "profit-making undertaking or scheme". Income Tax Assessment Act 1936 (Cth), ss 6(1), 25. GLEESON CJ, Mc

Attorney-General v Oates Companies - Procedure - Commencement of prosecutions - Indictable offences against Companies (Western Australia) Code - Application of Corporations Law, s 1316 - Time period between conduct alleged to give rise to offences and commencement of prosecution in excess of five years - Whether prosecution must be commenced within five years - Whether consent of Minister always necessary to commence prosecution if five years has elapsed. Criminal law and procedure - Indictable offences against Companies (Western Australia) Code - Prosecution of offences - Commencement of prosecutions - Whether prosecution must be commenced within five years - Whether consent of Minister always necessary to commence prosecution if five years has elapsed. Corporations Act 1989 (Cth), ss 39, 73. Corporations Law, s 1316. Judiciary Act 1903 (Cth), ss 38(e), 39, 39B. Companies (Western Australia) Code, ss 229(1), 229(4), 570. Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code, ss 34, 35, 36. Corporations (Western Australia) Act 1990 (WA), ss 2, 10, 80A(2), 85, 87, 91. Justices Act 1902 (WA), ss 20, 42, 51, 97. GLEESON CJ, Mc

Negligence - Duty of care - Economic loss - Factors relevant to determination of duty. Words and phrases - "Duty of care", "Economic loss". Plant Diseases Regulations (WA) Sched 1, Pt B, Item 14(1)(b).

Papakosmas v The Queen Evidence - Criminal trial - Sexual assault - Evidence of recent complaint - Hearsay evidence - Whether evidence of recent complaint relevant to facts in issue - Relationship between common law and Evidence Act 1995 (NSW) - Whether use of evidence unfairly prejudicial or misleading or confusing - Limiting use of evidence - Direction to jury. Criminal law and procedure - Appeal - Criminal trial - Objection not taken at first instance - Whether leave to argue should have been granted. Words and phrases - "relevance", "unfairly prejudicial". Evidence Act 1995 (NSW), ss 9, 55, 56, 59, 66, 136. Criminal Appeal Rules (NSW), r 4.

Martin Francis Byrnes v The Queen Timothy Paul Hopwood v The Queen Constitutional law - Inconsistency between Commonwealth and State laws - Conferral of functions on Commonwealth Director of Public Prosecutions by State law - Whether permitted by Commonwealth law. Constitutional law - Offences against Companies (South Australia) Code - Whether offences deemed to be offences against a law of the Commonwealth - Whether s 80 of the Constitution applies to trial of accused. Constitutional law - State legislative power - Corporations law national scheme - Whether South Australian legislature abdicated its authority by participating in scheme. Courts - Court of Criminal Appeal of South Australia - Appeal against sentence by Commonwealth Director of Public Prosecutions - Offences against Companies (South Australia) Code - Whether deemed to be offences against the Corporations Law - Nature of appellate jurisdiction - Whether statutory grant of administrative power also conferred judicial authority to hear appeal. Courts - Inferior courts of limited jurisdiction - District Court of South Australia - Nature of jurisdiction - Whether appeal lies to Court of Criminal Appeal of South Australia. Criminal law - Companies - Directors - Improper use of position - Furnishing misleading information - Offences against Companies (South Australia) Code - Conviction and sentence - Whether Commonwealth Director of Public Prosecutions empowered to appeal against sentence. Statutes - Construction - Whether construction extending criminal liability appropriate in the absence of specific legislative intent. Words and phrases - "appeal" - "enforcement power" - "relating to". The Constitution, s 109. Corporations Act 1989 (Cth), ss 4, 38, 45, 47(1), 73. Director of Public Prosecutions Act 1983 (Cth), ss 3, 6, 9(7). Judiciary Act 1903 (Cth), s 68(2). Acts Interpretation Act 1915 (SA), s 22. 2. Companies (South Australia) Code, ss 229(4), 564(1). Corporations (South Australia) Act 1990 (SA), ss 3, 29, 31, 53, 55, 56, 84, 85, 87, 91. Corporations (South Australia) (Miscellaneous) Amendment Act 1991 (SA), s 18. Corporations (South Australia) (Jurisdiction) Amendment Act 1995 (SA), s 19. Criminal Law Consolidation Act 1935 (SA), ss 275, 348, 352. Director of Public Prosecutions Act 1991 (SA), s 7. District Court Act 1991 (SA), ss 4, 5, 9. Juries Act 1927 (SA), s 7. GAUDRON, McHUGH, GUMMOW AND CALLINAN JJ. I THE NATURE OF THE LITIGATION The appellants were prosecuted by the Commonwealth Director of Public Prosecutions ("the Commonwealth DPP") and convicted of State criminal offences and sentenced in the District Court of South Australia ("the District Court"). The Commonwealth DPP appealed successfully to the Full Court of the Supreme Court ("the Court of Criminal Appeal") against the sentences imposed by the trial judge upon the present appellants. The jurisdiction of that appellate court and its description as a "court of criminal appeal" will be considered in Sections II and VII of these reasons. The appellants advance as principal questions in these appeals whether the Commonwealth DPP had the power to constitute and prosecute those appeals against sentence and whether there had been conferred upon the Court of Criminal Appeal the requisite jurisdiction to entertain those appeals. If the answers are in the negative, then the appeals to this Court should be allowed, the orders of the Court of Criminal Appeal should be set aside and the appeals to that Court be dismissed. We would have this Court make those orders. This conclusion is reached by following a thread through the eyes of several legislative needles, of both Commonwealth and State manufacture, until the thread breaks. It is convenient to take up the thread by looking first to the relevant facts. II THE FACTS In March 1993, the Commonwealth DPP laid an information against Timothy Paul Hopwood and Martin Francis Byrnes, the appellants, charging Mr Hopwood with one offence and Mr Byrnes with three offences under the Companies (South Australia) Code ("the State Code"). In South Australia, all indictable offences are charged on an information[1]. The events giving rise to the laying of the information against the appellants are set out in the reasons of Brennan, Deane, Toohey and Gaudron JJ in R v Byrnes[2] and do not call for repetition here. By the time the information was laid, the State Code had been repealed by the joint operation, commencing 1 January 1991, of ss 85 and 87 of the Corporations (South Australia) Act 1990 (SA) ("the State Corporations Act"). However, the effect of s 85(1) was to continue the operation of the State Code in respect of the offences with which Mr Hopwood and Mr Byrnes were later charged and convicted. The general purpose of the new legislation was to provide for the replacement of that co-operative scheme with what is known as the national scheme. Part 13 (ss 81-96) of the State Corporations Act was headed "TRANSITIONAL". These appeals involve the operation of Div 2 thereof (ss 84-92), which is headed "CO-OPERATIVE SCHEME LAWS". The appellants challenge the effectiveness of measures purporting to draw within the scope of the national scheme prosecutions for offences under the former co-operative scheme, where an appeal against sentence is brought by the Commonwealth DPP. Indeed, at the threshold, the appellants attack the validity of the laws by which South Australia participates in the national scheme. They submit that the Parliament of that State has attempted to "abdicate" its legislative authority and has gone beyond its competence in seeking to do so. Submissions to like effect have been rejected on other occasions[3]. The same result should follow here. The appellants pleaded not guilty and a trial by judge and jury commenced on 6 April 1993 in the District Court. Subsequently, two jurors were excused. The trial recommenced before a judge alone pursuant to s 7 of the Juries Act 1927 (SA) ("the Juries Act"). Section 7 was considered by this Court in Brown v The Queen[4] in relation to the trial of a person charged with a Commonwealth offence. It provided: "(1) Subject to this section, where, in a criminal inquest before the Supreme Court or a District Criminal Court- (a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and (b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner, the inquest shall proceed without a jury. (2) No election may be made under subsection (1) where the accused is charged with a minor indictable offence and has elected to be tried in a District Criminal Court. (3) Where two or more persons are jointly charged, no election may be made under subsection (1) unless all of those persons concur in the election. (4) Where a criminal inquest proceeds without a jury in pursuance of this section, the judge may make any decision that could have been made by a jury on the question of the guilt of the accused, and such a decision shall, for all purposes, have the same effect as a verdict of a jury." Convictions were recorded against each appellant on 3 August 1993. Both appellants were convicted of the count of improper use of the position of director under s 229(4) of the State Code, and Mr Byrnes was convicted of two further counts of furnishing misleading information under s 564(1) of the State Code. The appellants appealed to the Court of Criminal Appeal against their respective convictions on a number of grounds. Their appeals to that Court against conviction on the count of improper use of the position of director succeeded and those convictions were quashed. In addition, Mr Byrnes' appeal on one of the counts of furnishing misleading information was allowed[5]. On appeal to this Court, the orders of the Court of Criminal Appeal quashing the convictions of each appellant, in respect of the count of improper use of the position of director, were set aside and the matter was remitted to that Court to be dealt with in accordance with the reasons for judgment delivered by this Court[6]. On remittal, the Court of Criminal Appeal, in dismissing the appeal, upheld the convictions[7] and the matter was returned to the trial judge for sentencing. On 22 October 1997, the trial judge (Lunn DCJ) imposed a single sentence on Mr Byrnes to pay a fine of $8,000 for both the count of improper use of the position of director and the remaining count of furnishing misleading information. On 19 January 1998, his Honour sentenced Mr Hopwood to pay a fine of $4,500 in respect of the count of improper use of the position of director. The Commonwealth DPP filed applications for leave to appeal against the respective sentences on 10 November 1997 and 19 January 1998. The matters were heard together on 19 May 1998 in the Court of Criminal Appeal. Judgment was delivered by Olsson J, with whom Prior and Williams JJ concurred, on 17 June 1998. The Court granted leave to appeal and disposed of the appeals by setting aside the sentences and substituting sentences in the following terms, as proposed by Olsson J: "I would grant leave to appeal, allow the appeal, set aside the fines imposed, and substitute for them the following sentences:- * As to the respondent Hopwood - imprisonment for a period of twelve months, with a non parole period of eight months * As to the respondent Byrnes - imprisonment for a period of eighteen months, with a non parole period of twelve months. I would not suspend these sentences." The record in respect of which the appeals have been brought to this Court describes the judgment as delivered by a court identified as both the "Supreme Court of South Australia" and the "Court of Criminal Appeal". The definition of "Full Court" in s 348 of the CLC Act, the operation of which in the context of the conferral of jurisdiction on the Court of Criminal Appeal will be considered in Section VII, does not turn on the description of the court; rather it directs attention to matters of substance, namely that the "Full Court" be the Supreme Court constituted in a particular manner. In this case, three judges of the Supreme Court heard the Commonwealth DPP's appeal against sentence and the requirements of s 348 were therefore met. The Court, whilst styled or described for administrative purposes or for ease of reference as the "Court of Criminal Appeal", retained the juridical character of the Supreme Court, the superior court of that State, from which appeal lay to this Court pursuant to s 73(ii) of the Constitution[8]. III THE WAY AHEAD Bentham viewed with disfavour "the dark Chaos of Common Law", favouring the prescription of rules of conduct by statute[9]. This, Bentham said, would "mark out the line of the subject's conduct by visible directions, instead of turning him loose into the wilds of perpetual conjecture"[10]. By that criterion, the legislative scheme, the subject of these appeals, is a failure. It does not go so far as to bind the citizen by a law, the terms of which the citizen has no means of knowing. That, as Barwick CJ put it in Watson v Lee[11], "would be a mark of tyranny". However, the legislative scheme does require much cogitation to answer what, for the citizen, should be simple but important questions respecting the operation of criminal law and procedure. It is convenient to set out the threads through the wilds of legislative complexity which will be followed in the reasons which follow. First, a threshold matter arises, the power of the Commonwealth DPP to lay the information against the appellants and to conduct the prosecution at trial. This thread, taken up in Sections IV and V, is then followed in Sections VI and VII to the structure and powers of the District Court and the appellate jurisdiction conferred on the Court of Criminal Appeal to hear appeals against sentence brought by the Director of Public Prosecutions of South Australia ("the State DPP"). Having considered this special jurisdictional regime, a new thread is picked up in Sections VIII and IX. It is whether this regime has been extended by either South Australian or Commonwealth laws to include appeals brought by the Commonwealth DPP against sentences imposed for State Code offences. A number of statutory knots were located by counsel for the respondent, and it is sought to unpick them in the reasons which follow. Finally, various residual matters are considered, beginning in Section X. The applicability of s 80 of the Constitution to the appellants' trial for the State Code offences and the applications brought by the appellants for special leave to appeal against dismissal of their appeals against conviction are dealt with in Section XI. Before turning to the matters relating to the Commonwealth DPP's power to appeal against sentence, it is first convenient to consider the power of the Commonwealth DPP to lay the information against the appellants and to conduct the prosecution at trial. IV POWER AND FUNCTIONS OF THE COMMONWEALTH DPP To determine these matters, it is necessary to consider the operation of both the so-called "uniform" national scheme and the Director of Public Prosecutions Act 1983 (Cth) ("the Commonwealth DPP Act"). Section 6(2) of the Commonwealth DPP Act provides that, in addition to those functions of the Commonwealth DPP set out in s 6(1), which are not relevant to these appeals[12], the functions of the Director include: "(a) functions that are conferred on the Director by or under any other law of the Commonwealth; and (b) such other functions as are prescribed". Section 3 of the Commonwealth DPP Act defines "law of the Commonwealth" to include "a law of a Territory" but not to include a number of matters. Legislation enacted by the Commonwealth Parliament is within the ordinary meaning of this inclusive definition. Section 47(1) of the Corporations Act 1989 (Cth) ("the Commonwealth Corporations Act") is such a law of the Commonwealth. It confers functions and powers on prescribed authorities and officers of the Commonwealth in the following terms: "Regulations under section 73 may provide that prescribed authorities and officers of the Commonwealth have prescribed functions and powers that are expressed to be conferred on them by or under corresponding laws." Section 38 of that statute defines "corresponding law" in Pt 8 (ss 37-48) to mean: "(a) an Act of a jurisdiction (other than the Capital Territory) that corresponds to this Act; or (b) regulations made under such an Act; or (c) the Corporations Law, Corporations Regulations, ASC Law, or ASC Regulations, or any other applicable provision[[13]], of such a jurisdiction; or (d) rules of court made because of such an Act". A question would arise as to the operation of s 109 of the Constitution if the South Australian legislature had purported to confer functions or powers on the Commonwealth DPP in the absence of s 47(1) of the Commonwealth Corporations Act and s 6(2) of the Commonwealth DPP Act. This Court in Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd[14] considered the interdependence of Commonwealth and State legislation which vested powers in the Coal Industry Tribunal. The Court remarked[15]: "The necessity for authorization under the [Coal Industry Act 1946 (Cth) ('the Commonwealth Act')] for the Tribunal's exercise of powers conferred by the [Coal Industry Act 1946 (NSW)] was explained by Brennan J in R v Duncan; Ex parte Australian Iron & Steel Pty Ltd[16]: 'If the [Commonwealth] Act had merely constituted or authorized the constitution of a tribunal and had vested federal powers of conciliation and arbitration in it without reference to State powers, an attempt by a State Act to vest similar State powers in the same tribunal would fail - not because of a constitutional incapacity in a Commonwealth tribunal to have and to exercise State power, but because the Commonwealth Act would be construed as requiring the tribunal to have and to exercise only such powers as the Commonwealth Parliament had chosen to vest in it.'" Any question as to the exclusiveness of the Commonwealth DPP's functions under an exhaustive and self-contained Commonwealth law does not arise in this case; the Commonwealth Parliament has expressly provided for the Commonwealth DPP to receive and exercise such other functions as from time to time are conferred or prescribed within the terms of s 6(2) of the Commonwealth DPP Act. This section, in turn, is provided with content by s 47(1) of the Commonwealth Corporations Act and the Regulations made under s 73 of that Act. Section 73 of the Commonwealth Corporations Act empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing matters (a) required or permitted by the Act to be prescribed or (b) necessary or convenient to be prescribed for carrying out or giving effect to the Act, other than in relation to Pt 5 of the Act 1991 [17]. In exercise of this power, the Corporations (Commonwealth Authorities and Officers) Regulations (Cth) were made ("the Corporations Authorities Regulations"). Regulation 3(1) provided that: "[e]ach of the following authorities and officers of the Commonwealth have the functions and powers that are expressed to be conferred on them by or under a corresponding law: ... (d) [the Commonwealth DPP]". The Corporations Authorities Regulations did not define, at any relevant time, the phrase "corresponding law"[18]. The phrase must therefore be construed in light of the legislation under which the regulations were made[19]. The definition of "corresponding law" contained in s 38 of the Commonwealth Corporations Act informs the meaning of the phrase in reg 3(1) of the Corporations Authorities Regulations. The question therefore arises: what, if any, "corresponding law" (as defined) confers functions and powers on the Commonwealth DPP? The enabling legislation for the "uniform" national Corporations Law in South Australia is such a "corresponding law", namely the State Corporations Act. It is an "Act of a jurisdiction (other than the Capital Territory) that corresponds" to the Commonwealth Corporations Act within par (a) of the definition of "corresponding law" in s 38 of the Commonwealth Corporations Act. Section 91 of the State Corporations Act is a provision of central importance to these appeals. It provided so far as material: "(1) The [Commonwealth DPP]- (a) has the same enforcement powers in relation to the co-operative scheme laws as has the Crown in right of South Australia acting by the Attorney-General or the [State DPP]; and (b) may, in relation to an offence against a co-operative scheme law, perform the functions and exercise the powers conferred on the [Commonwealth DPP] by the [Commonwealth DPP Act] in relation to offences against the laws of the Commonwealth as if the offence against the co-operative scheme law were an offence against a national scheme law of this jurisdiction. ... (4) For the purposes of the exercise of enforcement powers, and other functions and powers conferred by this section, including the obtaining of warrants to arrest, an offence against a co-operative scheme law is taken to be an offence against a national scheme law of this jurisdiction." As first enacted, s 91(1) conferred upon the Commonwealth DPP, in relation to offences against a co-operative scheme law, such as the State Code, the functions and powers conferred upon that officer by the Commonwealth DPP Act as if the offence were an offence against a national scheme law of South Australia. The provision set out above is that substituted (with effect from 1 January 1991, that is, before the information was laid against the appellants) by s 18 of the Corporations (South Australia) (Miscellaneous) Amendment Act (SA) ("the State Corporations Amendment Act"), and amended by s 19 of the Corporations (South Australia) (Jurisdiction) Amendment Act 1995 (SA). The earlier provision had not endowed the Commonwealth DPP with the same enforcement powers as the prosecution authorities of South Australia in relation to co-operative scheme offences. The present provision is that in force when the Commonwealth DPP instituted the appeal proceedings in the Court of Criminal Appeal. Three definitions elucidate the scope of s 91 in its relevant form: the definitions of "national scheme law of this jurisdiction" in s 3(1), "co-operative scheme laws" in s 84, and "enforcement power" in s 91(5) of the State Corporations Act. It is convenient to set out the text of these provisions: "3. (1) In this Act- ... 'national scheme law of this jurisdiction' means- (a) this Act; or (b) the Corporations Law of South Australia; or (c) the ASC Law of South Australia". "84. For the purposes of this Act, the following are the co-operative scheme laws: Companies (Application of Laws) Act 1982 [the State Code] ...". "91. (5) In this section, 'enforcement power' means a function or power relating to- (a) the investigation of an offence; or (b) the arrest and custody of persons charged with an offence; or (c) the institution and carrying on of a prosecution of an offence; or (d) matters relating to such an investigation, arrest, custody or prosecution." The appellants were charged with offences under the State Code. As such, they were offences arising under "co-operative scheme laws" for the purpose of s 91(1)(a) of the State Corporations Act. V "ENFORCEMENT POWERS" OF THE CROWN IN RIGHT OF SOUTH AUSTRALIA The Second Reading Speech of the State Corporations Amendment Act, delivered in the South Australian Legislative Council by the Attorney-General[20] contained reference to the aspirational object of the amended s 91 of the State Corporations Act 1991 [21]: "The Bill contains a provision to amend section 91, so as to bring this provision in line with equivalent provisions of the application laws of other States and the Northern Territory. At present, section 91 of the Act does not give the [Commonwealth DPP] the same enforcement powers in relation to the Co-operative Scheme Laws as the Crown Prosecutor for South Australia. This needs to be addressed so as to enable the [Commonwealth DPP] to have the powers of enforcement in relation to the Co-operative Scheme Laws." It is convenient to note that the Attorney-General of South Australia envisaged only the conferral of powers under this section, as opposed to the conferral of jurisdiction, a matter to which we will return. To determine the scope of the Commonwealth DPP's "enforcement powers" conferred by s 91(1)(a) of the State Corporations Act, it is necessary to inquire what "enforcement powers" were vested in the Crown in right of South Australia, acting by the Attorney-General or the State DPP. One begins with the Director of Public Prosecutions Act (SA) ("the State DPP Act"), which came into operation on 6 July 1992. Section 7[22] thereof conferred powers, in part, on the State DPP: "(a) to lay charges of indictable ... offences against the law of the State; (b) to prosecute indictable ... offences against the law of the State; ... (g) to exercise appellate rights arising from proceedings of the kind referred to above; ... (i) to do anything incidental to the foregoing". Section 275 of the CLC Act stated, after amendment by Sched 2 of the State DPP Act and s 5 of the Statutes Amendment (Attorney-General's Portfolio) Act 1992 (SA)[23]: "(1) Any person may be put upon his trial at any criminal sessions of the Supreme Court or District Court, for any offence, on an information presented to the Court in the name and by the authority of the [State DPP]. (2) Every rule of law and enactment for the time being in force in the State relating to indictments and to the manner and form of pleading thereto and to the trial thereon, and generally to all matters subsequent to the finding of the indictment, shall apply to any information so presented." The definition of "enforcement power" in s 91(5) of the State Corporations Act includes functions or powers relating to "the institution and carrying on of a prosecution of an offence". This would encompass and "pick up" those powers conferred on the State DPP by s 7(1)(a), (b) and (i) of the State DPP Act. The Commonwealth DPP therefore had power in March 1993 to lay the information against the appellants for the offences arising under the State Code and to conduct the prosecution of these offences at trial. Whether the Commonwealth DPP had the power to appeal against sentence is a matter which will be considered below. It is convenient now to consider the jurisdiction of the District Court and the South Australian appellate system in relation to trials of persons charged with offences under the State Code. VI JURISDICTION OF THE DISTRICT COURT The District Court was established by s 4 of the District Court Act 1991 (SA) ("the District Court Act") and s 5 provided that it was a court of record. Section 9 conferred jurisdiction in the following terms: "(1) The Court has jurisdiction to try a charge of any offence except treason or murder, or a conspiracy or attempt to commit, or assault with intent to commit, either of those offences. (2) The Court has jurisdiction to convict and sentence, or to sentence, a person found guilty on trial, or on his or her own admission, of such an offence. (3) The Court's jurisdiction to try, convict or sentence for a summary offence exists only where the offence is charged in the same information as an indictable offence. (4) The Court has any other criminal jurisdiction conferred by statute." This section conferred jurisdiction on the District Court to try and sentence the appellants for the offences charged. The District Court is an inferior court of limited jurisdiction. It stands in stark contrast to a Supreme Court of a State, which is a superior court of unlimited jurisdiction, charged with the administration of justice. Dawson J in Grassby v The Queen said of such a court[24]: "But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster[[25]]. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court." The District Court does not enjoy a "well of undefined powers", rather it is a court whose power and jurisdiction are specified by statute. The District Court Act delineates the borders of an enclosed area of power, which is only supplemented by such jurisdiction as arises by necessary implication "upon the principle that a grant of power carries with it everything necessary for its exercise"[26] and such additional jurisdiction as is conferred by other legislation. This is not a case where the considerations referred to by this Court in its joint judgment in Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW are applicable. Their Honours said[27]: "There are well-known passages in National Telephone Co Ltd v Postmaster-General[28], which it may be as well to quote. Viscount Haldane LC said: 'When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches'[29]. ... When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality." The District Court Act does not enjoy such "ordinary incidents". Any question of the susceptibility to Crown appeals of sentences imposed by the District Court must be determined by reference to particular statutory provisions. In Holmes v Angwin, Griffith CJ considered the power of a legislature to create a new court and the subjection of orders of that court to appeals[30]: "It is a general rule that when a new Court is created, whatever jurisdiction is conferred upon it, there is no appeal from the decision of that Court unless it is conferred by Statute." The Chief Justice went on to state the exception to this rule, "[i]n the case of an inferior Court to which new jurisdiction is given, the Supreme Court can, in the exercise of its general powers, control it if it exceeds or refuses to exercise its jurisdiction"[31]. This jurisdiction of a Supreme Court to supervise an inferior court is an exercise of original jurisdiction[32]. This case concerns an "appeal" and not an exercise of original jurisdiction by the Court of Criminal Appeal. The scope and effect of an appeal are governed by the terms of the enactment creating it[33]. It is therefore necessary, first, to determine whether any other statute conferred jurisdiction on the Court of Criminal Appeal to entertain an appeal against sentence for State Code offences at the instance of the Commonwealth DPP and, secondly, whether the Commonwealth DPP was invested with the right to institute and conduct such an appeal. VII SOUTH AUSTRALIAN APPELLATE SYSTEM FOR STATE CODE OFFENCES At the time of the institution of the proceedings in the Court of Criminal Appeal, which gave rise to this set of appeals to this Court, s 352(2) of the CLC Act provided a limited regime for appeals against sentence: "Where a person is convicted on information and sentenced, the Director of Public Prosecutions may, with the leave of the Full Court, appeal to that Court against the sentence passed on that person, unless the sentence is one fixed by law."[34] Section 352(2) was first introduced by s 9 of the Criminal Law Consolidation Act Amendment Act 1980 (SA) and conferred the appellate function upon the Attorney-General. The provision was amended by Sched 2 to the State DPP Act to substitute for the phrase "Attorney-General" the phrase "Director of Public Prosecutions"[35]. This identifies the State officer of that title. Section 352(2), to adopt the language of Dixon J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett[36], performs a "double function". His Honour remarked that the legislation there in question[37]: "must be taken to perform a double function, namely to deal with substantive liabilities or substantive legal relations and to give jurisdiction with reference to them. It is not unusual to find that statutes impose liabilities, create obligations or otherwise affect substantive rights, although they are expressed only to give jurisdiction or authority, whether of a judicial or administrative nature." In bestowing upon the State DPP the conditional privilege of appeal, s 352(2) affected the substantive legal liabilities of the appellants by the conferral of substantive legal rights upon the State DPP[38]. Further, the "Full Court", as defined in s 348 of the CLC Act and considered in Section II of these reasons, was invested with jurisdiction to entertain both a leave application and an appeal against a conviction on information, unless the sentence was one fixed by law. The blurring of two, conceptually discrete, legal functions into a single section such as s 352(2) of the CLC Act is a mode of draftsmanship fraught with the dangers of oversight. In Canada (Human Rights Commission) v Canadian Liberty Net[39], the Supreme Court of Canada recently considered the effect of a so-called "'gap' in statutory grants of jurisdiction". The case concerned the jurisdiction of the Federal Court of Canada to grant injunctive relief in support of certain prohibitions contained in the Canadian Human Rights Act 1985 (Can)[40]. The effect of s 44 of the Federal Court Act 1985 (Can)[41] was to confer jurisdiction upon the Federal Court to grant an injunction "[i]n addition to any other relief" even if the substance of the dispute fell to be determined by another court. Bastarache J, for the majority of the Supreme Court, considered the relationship between the provincial superior courts of general jurisdiction and the limited jurisdiction of the Federal Court. Having rejected the proposition that the inherent jurisdiction of provincial superior courts affects the construction of a federal law which positively grants jurisdiction to the Federal Court[42], Bastarache J remarked[43]: "[T]he doctrine of inherent jurisdiction operates to ensure that, having once analysed the various statutory grants of jurisdiction, there will always be a court which has the power to vindicate a legal right independent of any statutory grant. The court which benefits from the inherent jurisdiction is the court of general jurisdiction, namely, the provincial superior court." It is unnecessary to consider whether such a doctrine applies in the Australian federal system and the nature of any jurisdiction which may be invoked where an Australian legislature has not vested jurisdiction in any court to vindicate a new legal right and s 75 of the Constitution does not apply of its own force to invest original jurisdiction in this Court; s 352(2) of the CLC Act is adequate to the task in the present case. It is appropriate now to consider whether any other legislation extended this special jurisdictional regime to authorise appeals by the Commonwealth DPP against the sentence of persons convicted on information of State Code offences. VIII OPERATION OF THE STATE CORPORATIONS ACT The question arises as to whether the special regime created by s 352(2) of the CLC Act has been amended in all its incidents by s 91 of the State Corporations Act. The text of s 91, so far as material, is set out in Section IV. Section 91 is not in terms expressed to amend or repeal any other particular laws. Rather, it is an ambulatory provision conferring extensive prosecutorial powers on the Commonwealth DPP. The operation of this law must be ascertained and, to the extent that it thereby effects a change in the operation of an earlier statute, the several or "combined"[44] legal meanings must be identified. It is convenient to consider the operation of par (b) of s 91(1) of the State Corporations Act before returning to consider the scope of the conferral by par (a) of "enforcement powers" on the Commonwealth DPP. Section 91(1)(b) reflects the terms of s 91 before amendment by the State Corporations Amendment Act. Section 91(1) then stated: "The [Commonwealth DPP] may, in relation to an offence against a co-operative scheme law, perform the functions and exercise the powers conferred on the [Commonwealth DPP] by the [Commonwealth DPP Act] as if the offence were an offence against a national scheme law of this jurisdiction." As explained in Section V, the mischief in the old s 91 to which the amendment was directed, by including what is now s 91(1)(a), was that it did not give to the Commonwealth DPP the same enforcement powers in relation to Co-operative Scheme Laws as the South Australian prosecution authorities. It thus would not have availed the Commonwealth DPP in the present case. Nor does s 91(1)(b). Paragraph (b) facilitates, as a matter of State law, the performance of certain functions and the exercise of certain powers conferred by the Commonwealth DPP Act. The question whether the power or function exists must be determined by reference to federal law. The Commonwealth DPP Act does not, in terms, confer any powers or functions on the Commonwealth DPP in respect of "co-operative scheme laws" or "national scheme laws", as defined in the State Corporations Act. Rather, as outlined in Section IV, s 6(2) of the Commonwealth DPP Act provides for a "mechanism" by which further functions may be conferred by or under any law of the Commonwealth or through proscription by regulation. As described in detail in Section IV, the conferral of powers in respect of "co-operative scheme laws" can be traced through ss 47(1) and 73 of the Commonwealth Corporations Act, reg 3(1) of the Corporations Authorities Regulations and, ultimately, to s 91(1)(a) of the State Corporations Act. It was submitted that s 9(7) of the Commonwealth DPP Act operated in conjunction with s 91(1)(b) of the State Corporations Act to confer the power to appeal against sentence on the Commonwealth DPP in respect to State Code offences. Section 9(7) provides: "Where the Director has instituted or taken over, or is carrying on, a prosecution for an offence against a law of the Commonwealth, the Director may exercise in respect of that prosecution, in addition to such rights of appeal (if any) as are exercisable by him otherwise than under this subsection, such rights of appeal (if any) as are exercisable by the Attorney-General in respect of that prosecution." (emphasis added) The appellants were charged, tried and convicted of State criminal offences under the State Code. Section 91(1)(b) of the State Corporations Act did not change the character of these offences. They remained State offences. The proposition that s 9(7) of the Commonwealth DPP Act confers additional powers on the Commonwealth DPP in relation to offences against a law of the State of South Australia should be rejected. The Commonwealth Parliament did not re-enact these offences such that they attained the legal character of "offences against a law of the Commonwealth". IX APPEAL AGAINST SENTENCE BY THE COMMONWEALTH DPP There remain the following two central questions. The first is whether, in conjunction with any other State law, s 91(1)(a) of the State Corporations Act confers on the Commonwealth DPP a power to appeal against sentence for State Code offences to the Court of Criminal Appeal. The second is whether, in such conjunction, s 91(1)(a) confers jurisdiction on the Court of Criminal Appeal to hear an appeal against sentence brought by the Commonwealth DPP for such offences. It is convenient first to address the conferral of "enforcement power" on the Commonwealth DPP. The definition of "enforcement power" in s 91(5) of the State Corporations Act does not expressly refer to a function or power relating to "appeals". It remains a question of statutory construction whether any of the matters enumerated in s 91(5) include a power to institute and conduct an appeal against sentence. Neither par (a) nor par (b) has any bearing on this question. Both paragraphs deal with matters anterior to the prosecution of the accused. Equally, par (c), which concerns a function or power relating to "the institution and carrying on of a prosecution of an offence", is insufficient. This is because the "carrying on of a prosecution" concerns the conduct of the prosecution at trial. The remaining paragraph specifies a function or power "relating to- ... (d) matters relating to such ... [a] prosecution". The duplication of the phrase "relating to" imports a wide penumbra of matters connected to a prosecution. It is through the application of the rules of statutory construction that the scope of this penumbra is delineated. In our opinion, upon the proper construction of this law, an appeal against sentence does not relate to "matters relating to such ... [a] prosecution", as provided for in s 91(5) of the State Corporations Act. It is here that the thread taken up at the beginning of these reasons breaks. In Rohde v Director of Public Prosecutions, Deane J said[45]: "As a matter of established principle, a general statutory provision should not ordinarily be construed as conferring or extending such a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language: cf Thompson v Mastertouch TV Service Pty Ltd [No 3][46]; Davern v Messel[47]." The terms of s 91(5) of the State Corporations Act do not refer to "appeals". They stand in contrast to s 68(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), the construction of which was considered by this Court in Peel v The Queen[48]. Although in the minority in that case, Barwick CJ made the following remarks concerning the meaning of the phrase "appeals arising out of any such trial or conviction" contained in s 68(2) which have force in the context of the construction of s 91(5) of the State Corporations Act 1976 [49]: "[N]either an appeal against acquittal nor an appeal against sentence is an appeal arising out of any proceedings connected with the trial: nor is an appeal against sentence an appeal arising out of any proceedings connected with the conviction." In the absence of the manifestation of a specific intention, no power or function in relation to appeals against sentence is to be found in the terms of s 91(5). This construction is consistent with s 22 of the State Interpretation Act which provides: "(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object. (2) This section does not operate to create or extend any criminal liability." A construction of s 91(5) of the State Corporations Act which would vest the Commonwealth DPP with the power to appeal would create or extend criminal liability within the terms of s 22(2) because it would render a convicted person liable to an increased punishment. This construction of s 91(5) of the State Corporations Act finds its force in the underlying principle that a convicted person should not be deprived of the liberty left after sentencing at first instance except by procedures which have been expressly authorised[50] and strictly complied with in a court of proper jurisdiction. This notion of jeopardy to the accused's liberty and its relationship with the administration of criminal justice was considered in Everett v The Queen[51]. Brennan, Deane, Dawson and Gaudron JJ considered the jurisdiction of the Tasmanian Court of Criminal Appeal to grant leave to the Attorney-General of that State to appeal against sentence and said[52]: "An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed[53]." This is not "procedural due process" as understood in United States constitutional jurisprudence[54]; rather it is the process of the due administration of justice[55] governed by the strictures of the rule of law. These strictures have been developed by the courts with respect to power and its exercise in appropriately constituted forums. In dealing with the subject of "Double Jeopardy, Pleas and Verdicts", the Law Reform Commission of Canada accurately observed[56]: "There are a number of concepts involved in the notion of double jeopardy, including autrefois acquit and convict, the rule against multiple convictions and its effect on pleas and verdicts, issue estoppel and inconsistent judgments, the extent to which foreign decisions can bar subsequent prosecutions, and so on. Any discussion of double jeopardy issues involves not only the substantive issue of the scope of the rule in question but also other important matters such as the procedure to be followed to raise the issue in the first place and the remedy to be applied." It is now convenient to consider whether the Court of Criminal Appeal is invested with jurisdiction to entertain an appeal against sentence by the Commonwealth DPP. This is a question whose answer lies particularly in the operation of s 91 of the State Corporations Act. The answer is that there is no investment of jurisdiction and this is the second, and perhaps more generally significant, break in the thread taken up at the beginning of these reasons. We turn to explain the reasons which disclose this deficiency. Section 91(1)(a) of the State Corporations Act stands apart from statutory provisions such as s 352(2) of the CLC Act and those considered by Dixon J in Ex parte Barrett[57]. It does not refer to jurisdiction or to court process, such as the process of appeal which is the subject-matter of s 352(2) of the CLC Act. It does not refer to a judicial function to be performed or to the manner in which a court is constituted. The subject-matter of s 91(1)(a) is the conferral of powers on a Commonwealth statutory entity, the Commonwealth DPP. This matter was addressed in a passage in the Second Reading Speech of the Attorney-General of South Australia, set out in Section V. To the extent that s 91(1)(a) requires the existence of the same enforcement powers existing in the Crown in right of South Australia acting by the Attorney-General or the State DPP, it may be assumed that it was drawn with the aspiration of placing the Commonwealth DPP in the same position as the State DPP in relation to co-operative scheme laws. This aspiration has not been met by s 91(1)(a). Conferral of powers on a statutory authority is conceptually discrete from the grant of jurisdiction to a court. The distinction is not a matter of dry legal terminology. It reflects fundamental concerns in the structure of government under the rule of law. To confer jurisdiction is to expand judicial authority; to confer powers on a statutory entity is to expand administrative authority. The exception to this basic rule, an example of which is s 352(2) of the CLC Act, is found where the conferral of authority on a statutory entity is premised on the existence of jurisdiction. In such a case, the question arises whether the section conferring authority on a statutory entity performs a "double function", to which Dixon J referred in Ex parte Barrett[58]. This is not such a case. None of the "enforcement powers" as defined in s 91(5) includes a power or function to appeal against sentence. Section 91(1)(a) is not an independent grant of appellate jurisdiction on the Court of Criminal Appeal, nor does it modify the regime of appellate jurisdiction created by s 352(2) of the CLC Act. This is not a case where it is necessary to read s 91(1)(a) as adding to or qualifying the appellate jurisdiction conferred upon the Court by s 352(2) of the CLC Act. In this respect, this is no occasion for a "combined"[59] or conflated meaning of the two provisions. The subject-matter of s 91(1)(a) of the State Corporations Act is divorced from so much of the subject-matter of s 352(2) of the CLC Act as is concerned with the conferral of jurisdiction upon the Court of Criminal Appeal. X ANCILLARY MATTERS First, it was submitted by the respondent that the conferral of jurisdiction on the Court of Criminal Appeal to hear an appeal against sentence brought by the Commonwealth DPP arose by operation of ss 55, 56, 91(1)(b) and 91(4) of the State Corporations Act in conjunction with s 352 of the CLC Act. Sections 55 and 56 are contained in Div 2 (ss 53-56), entitled "VESTING AND CROSS-VESTING OF CRIMINAL JURISDICTION", of Pt 9 (ss 40-56), entitled "JURISDICTION AND PROCEDURE OF COURTS", of the State Corporations Act. Section 53 delineates the scope of Div 2 as follows: "This Division provides in relation to- (a) the jurisdiction of courts in respect of criminal matters arising under the Corporations Law of South Australia; and (b) the jurisdiction of the courts of South Australia in respect of criminal matters arising under the Corporations Law of any jurisdiction." For the purposes of Div 2, s 54(2)(a) defines a reference to the Corporations Law of South Australia to include a reference to: "(i) the Corporations Regulations of South Australia; and (ii) the ASC Law of South Australia; and (iii) the ASC Regulations of South Australia; and (iv) any other applicable provisions (as defined in section 3) of South Australia; and (v) this Act; and (vi) regulations made under this Act; and (vii) rules of court made by the Supreme Court of South Australia, and rules of court applied by the Federal Court because of a provision of this Act, and rules of court applied by the Supreme Court of another State, or of the Capital Territory, when exercising jurisdiction conferred by this Division (including jurisdiction conferred by virtue of any previous application or applications of this subparagraph)". Section 55(1) operates to confer an "equivalent jurisdiction" on the several courts of each State and the Capital Territory exercising jurisdiction with respect to the trial and conviction on indictment, amongst other matters, of offenders or persons charged with offences against the laws of the State or the Capital Territory. The "equivalent jurisdiction" is conferred "with respect to offenders or persons charged with offences against the Corporations Law of South Australia". Section 55(1) does not modify the jurisdiction of the several courts of South Australia in respect to non-Corporations Law offences, such as the State Code offences at issue in this case. The jurisdiction of the several courts of South Australia, such as the Court of Criminal Appeal, in respect to non-Corporations Law offences must originate from a source other than s 55(1). Likewise, s 56(1) applies existing laws of South Australia in respect to certain specified matters, so far as they are applicable, "to persons who are charged with offences against the Corporations Law of South Australia or of another State or the Capital Territory in respect of whom jurisdiction is conferred on a court of South Australia by this Division or a corresponding law of another State or the Capital Territory". This section does not modify the laws of South Australia other than to extend their operation to certain offences against the Corporations Law in its various guises. There is no provision in the State Corporations Act which effects a change in the nature of offences against the State Code, with which the appellants were charged and convicted, such that they are deemed to be offences against the Corporations Law. The transitional provisions contained in Pt 13 (ss 81-96) of the State Corporations Act, referred to in Section II, do not effect such a fundamental change. Rather, in contradistinction, s 85(1) relevantly provides that the co-operative scheme laws are to continue to operate of their own force in relation to matters arising before the enactment of s 85. As such, State Code offences are not within this extended operation of s 56(1). In light of the limited conferral of jurisdiction provided for by ss 55 and 56 of the State Corporations Act, the respondent's submission must fail. These sections have no relevant nexus with s 91 of the State Corporations Act. Neither confers jurisdiction in relation to non-Corporations Law offences such as those with which the appellants were charged and convicted. Section 91 operates, in the manner outlined above, to confer and regulate governmental power in relation to the co-operative scheme laws and therefore has no relevant connection to the conferral of jurisdiction in relation to Corporations Law offences which is the subject-matter of ss 55 and 56 of the State Corporations Act. Secondly, it was submitted that s 45(1) of the Commonwealth Corporations Act had a field of operation in respect of the State Code offences with which the appellants were charged. Section 45(1) provides: "For the purposes of a law of the Commonwealth or a law of the Capital Territory, an offence against the applicable provisions of a jurisdiction other than the Capital Territory: (a) is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth; and (b) is taken not to be an offence against the laws of that jurisdiction." Sub-section (2) of s 45 states that sub-s (1) has effect for the purposes of a law only in so far as it is within the authority of the Parliament to provide in relation to that law as mentioned in par (a) of sub-s (1). Section 45 is included in Div 2 of Pt 8 of the Commonwealth Corporations Act. The object[60] of Div 2 is to further the object of Pt 8 "by providing for an offence against an applicable provision of another jurisdiction to be treated in the [Australian] Capital Territory as if it were an offence against a law of the Commonwealth" (s 40(1)). This indicates that s 45 has nothing to say for the present case which turns upon the law in force in South Australia. In any event, s 4(1) of the Commonwealth Corporations Act, which is set out in Section IV, defines "applicable provision" in the same terms as the definition contained in s 3(1) of the State Corporations Act. The result is that s 45(1) has no application to State Code offences because the definition of "applicable provision" is exhaustive and does not include State Code offences. Therefore, s 45(1) has no bearing on these appeals. This makes it unnecessary to consider the further question of whether the Commonwealth Parliament had the power to enact s 45, whether under the territories power, the corporations power, or some other authority. Thirdly, it is now necessary to dispose of a further submission made by the Commonwealth Solicitor-General in support of the proposition that the Commonwealth DPP had a right to appeal against the appellants' sentences to the Court of Criminal Appeal. Through the interaction of ss 29, 31 and 91(1)(b) of the State Corporations Act, s 9(7) of the Commonwealth DPP Act and the appeal provisions of s 24 of the Federal Court of Australia Act (Cth), it was submitted that the above proposition could be sustained. It is unclear whether the Commonwealth Solicitor-General sought ultimately to rely on this submission but the submission is without merit. It is not to the point that, in certain matters, of which the present sentences are not instances, an appeal by the Crown may be taken to the Full Court of the Federal Court[61]. It follows that the appeals to this Court should be allowed, the sentencing orders of the Court of Criminal Appeal set aside and the appeal to the Court of Criminal Appeal by the Commonwealth DPP be dismissed. That leaves standing the convictions themselves. There are also before this Court two applications for special leave to appeal which attack the convictions. To these we now turn. Each raises the same issue as to the application of s 80 of the Constitution. XI SECTION 80 OF THE CONSTITUTION Each applicant submits that his trial was vitiated by an omission, that it was not before a jury. The State Code offences with which the applicants were charged and convicted are offences against laws of the State of South Australia. Section 80 of the Constitution confers a right to a jury where a person is subject to a "trial on indictment of any offence against any law of the Commonwealth". Without more, the terms of s 80 would dispose of the applicants' submission and the decision with respect to s 7 of the Juries Act in Brown v The Queen[62] would not be in point. However, the applicants submit that s 80 was "picked up" by s 68(2) of the Judiciary Act and thereby rendered applicable to their trials. Neither proposition has substance. It follows that the applications for special leave should be refused. Section 68(2)[63] confers on the several courts of a State[64], including the Supreme Court and District Court of South Australia, a particular species of federal jurisdiction. This is with respect to "offences against the laws of the Commonwealth". The investment of jurisdiction is supported by s 76(ii) and s 77(iii) of the Constitution. As just observed, the applicants were tried for offences against State law. Section 68(2) was not engaged. The section identifies in its opening terms the State courts in which it invests jurisdiction by reference to the jurisdiction they already exercise under State criminal law. But that is of no decisive importance for the present applicants. The investment of federal jurisdiction is expressed to be, as would be the case in any event, subject to s 80 of the Constitution. That likewise is of no avail to the applicants. They were not charged with offences against the laws of the Commonwealth, the subject-matter of the investment of federal jurisdiction by s 68(2)[65]. Further, it was argued for the applicants that s 29(1) of the State Corporations Act operated to apply s 80 of the Constitution to their trial on indictment for the State Code offences. Section 29(1) provides: "The Commonwealth laws apply as laws of South Australia in relation to an offence against the applicable provisions of South Australia as if those provisions were laws of the Commonwealth and were not laws of South Australia." Section 3(1) of the State Corporations Act contains an exhaustive definition of "applicable provisions", as employed in various provisions including s 29(1). The definition does not include State Code offences. Moreover, no other provision in the Act, including s 91, operates to apply s 29 to State Code offences. Section 29(1) therefore has no bearing on these applications. As such, it is unnecessary to consider whether the phrase "Commonwealth laws" in s 29(1) includes s 80 of the Constitution. Equally, it is unnecessary to consider the operation and effect of s 29(2) of the State Corporations Act, which also operates exclusively in relation to "an offence against the applicable provisions of South Australia"[66]. XII ORDERS The appeals should be allowed. The orders of the Court of Criminal Appeal made on 17 June 1998 should be set aside and the appeals to that Court be dismissed. The applications for special leave to appeal should be refused. The orders of the Court of Criminal Appeal to be set aside provided for the sentences which were stayed, by orders of this Court, pending delivery of judgment in these appeals.

Robinson v The Queen Criminal law and procedure - Evidence - Sexual assault of child under 12 - Uncorroborated evidence of complainant - Necessity for warning by trial judge to jury. Evidence - Criminal trial - Sexual assault of child under 12 - Uncorroborated evidence of complainant - Necessity for warning by trial judge to jury. Criminal Code (Q), s 632. GLEESON CJ, Mc

Thompson v The Queen Criminal law and procedure - Sentencing - Indefinite sentence imposed by trial judge - Presentence and psychological reports relied on by trial judge inadequately prepared - Appeal against indefinite sentence to Court of Criminal Appeal (WA) - Whether Court of Criminal Appeal erred in commissioning further psychological reports on appeal - Right of defendant to be fully heard where defendant being resentenced - Circumstances in which indefinite sentence should be imposed. Appeal - Court of Criminal Appeal (WA) - Application for leave to appeal against sentence - Sentence included order of indefinite sentence - Defects in materials relied on by sentencing judge - Appellate court secures fresh psychological reports in course of disposing of grounds of appeal - Whether appellate procedure miscarried - Whether new reports only relevant to resentence of prisoner after appeal upheld and original sentence set aside. Sentencing Act 1995 (WA), s 98. Criminal Code (WA), s 697.

Re The Governor, Goulburn Correctional Centre; Ex parte Eastman Constitutional law - Territories - Australian Capital Territory - Courts of territories - Supreme Court of Australian Capital Territory - Whether a court "created by the Parliament" - Whether s 72 applies to courts created by or pursuant to s 122. Constitutional law - Territories - Australian Capital Territory - "Seat of government" - Source of legislative power for laws for the government of the territory - Whether s 52(i) or s 122. Habeas corpus - Applicant sentenced to imprisonment for life following conviction for murder - Trial presided over by judge appointed otherwise than in accordance with s 72 of the Constitution - Whether applicant was duly convicted. Words and phrases - "created by the Parliament" - "seat of government". The Constitution, ss 1, 52(i), 61, 71, 72, 73, 75, 76, 77, 122, 125, 128. Australian Capital Territory (Self-government) Act 1988 (Cth), ss 22, 23(1)(b), 28, 34, 36, 39(1), Pt VA. ACT Supreme Court (Transfer) Act 1992 (Cth), ss 6, 7. Judiciary Act 1903 (Cth), ss 30(a), 33(1)(f). Seat of Government Acceptance Act 1909 (Cth), s 6. Seat of Government (Administration) Act 1910 (Cth), s 4. Supreme Court Act 1933 (ACT), ss 4A, 17. Supreme Court (Amendment) Act 1993 (No 2) (ACT), ss 6, 11, 26, Sched 2. GLEESON CJ, Mc

Puntoriero v Water Administration Ministerial Corporation Statutory corporations - Exclusion of liability - Negligence - Action for conduct done under statute - Whether statutory provision affords immunity from liability arising from the negligent supply of water containing contaminants. Negligence - Statutory corporation - Action for conduct done under statute - Whether statutory provision affords immunity from liability arising from the negligent supply of water containing contaminants. Water, water supply and water courses - Powers, duties and liabilities of statutory authorities - Water supply - Whether statutory provision affords immunity from liability arising from supply of water containing contaminants. Practice and procedure - Action in negligence - Question of causation - Jury trial - Roles of judge and jury - Appeal to New South Wales Court of Appeal - Whether action should be dismissed - Whether jury verdict could be supported on the evidence. Words and phrases - "substantial". Irrigation Act 1912 (NSW), ss 3, 15, 23(2). Supreme Court Act 1970 (NSW), ss 75A, 102, 108. Water Administration Act 1986 (NSW), ss 4, 7, 12, 12A, 15, 19.

AB v The Queen Criminal law - Sentence - Principles - Offences not forming the basis of extradition - Extradition law - Confession and non-insistence on rule of speciality - Whether sentencing Court required to have regard to the public interest in the accused's confession and non-insistence on rule of speciality. Appeal - Sentence for criminal offences - New ground added in appeal to High Court - Ground not expressly taken at first instance or in Court of Criminal Appeal - Whether ground could or should be allowed - Whether materials before lower courts, relevant to ground, sufficiently raised point of law for consideration in High Court. Extradition Act 1988 (Cth), s 42. Mc

Damages - Tort - Personal injuries - Quantification - Loss of future earning capacity - Husband and wife partnership at will - Equal division of profits - No significant contribution by wife to partnership's business activity - Whether loss of future earning capacity calculated by reference to plaintiff's past share of partnership profits.

Practice and procedure - Federal Court of Australia - Representative proceedings - Commencement - Misleading and deceptive conduct pleaded - Whether alleged common misrepresentation a "substantial common issue of law or fact". Words and phrases - "substantial". Federal Court of Australia Act 1976 (Cth), s 33C, Pt IVA. Trade Practices Act 1974 (Cth), s 52. GLEESON CJ, Mc

Data Access Corporation v Powerflex Services Pty Ltd Intellectual property - Copyright - Subsistence and infringement of copyright - Computer software. Subsistence of copyright - Computer languages - Words used as commands in one computer language used as commands with identical functions in another computer language - Whether copyright subsists in an individual command - Whether an individual command is itself a "computer program" within s 10(1) of the Copyright Act 1968 (Cth). Infringement of copyright - Computer program - Application development system designed to enable computer programs to be written using certain commands - Whether a collocation of those commands constitutes a "substantial part" of the application development system - Test of substantiality as applied to computer programs. Infringement of copyright - Computer program - Whether a macro in one computer program is an "adaptation" of a macro with the same functionality in another computer program - Meaning of "version" in s 10(1) of the Copyright Act 1968 (Cth). Subsistence of copyright - Computer data table used for standard data compressions - Whether the data table is an "original literary work". Infringement of copyright - Whether process devised to replicate a computer data table by examining its output constitutes a "reproduction" of the table. Words and phrases - "adaptation" - "computer program" - "literary work" - "reproduction" - "set of instructions" -"substantial part" - "version". Copyright Act 1968 (Cth), ss 10(1), 14(1)(b), 31(1)(a)(i), 36(1). GLEESON CJ, Mc

Katsuno v The Queen Criminal law - Juries - Practice in Victoria of provision of conviction and other information concerning potential jurors to Director of Public Prosecutions by police - Information used to exercise challenge - Whether practice prohibited by Juries Act 1967 (Vic) - Consequences of invalidation of practice - Whether prohibition of practice relates to the constitution and authority of the jury and to the trial process in a fundamental respect - Whether breach constituted a fundamental failure to observe requirements of the criminal process. Criminal law - Juries - Nature of and entitlement to peremptory challenge - Relevance of reasons for exercise. Criminal law - Constitutional requirement of trial by jury - Representative nature of the jury. Jury - Commonwealth offence - Trial in State court - Provision of information by police to prosecutor - Information used to exercise challenge - Whether practice prohibited - Whether breach constituted a fundamental failure to observe requirements of the criminal trial. Words and phrases - "constitution and authority of the jury". The Constitution, s 80. Juries Act 1967 (Vic). Maher v The Queen [1987] HCA 31; (1987) 163 CLR 221.

MSP Nominees Pty Ltd v Commissioner of Stamps Stamp duties - Conveyance - Redemption of units in unit trust scheme - Register of units recorded cancellation - Whether register an instrument evidencing a deemed conveyance - Meaning of "transfer" in s 71(15) of the Stamp Duties Act 1923 (SA) - Whether beneficiary surrendered or renounced beneficial interest in, or in relation to, property upon redemption of units. Trusts - Unit trust - Provision for redemption of units - Whether redemption a surrender, release or renunciation by unit holder of beneficial interest. Words and phrases - "transfer" - "surrender" - "renounce" - "release". Stamp Duties Act 1923 (SA), ss 24(4), 71.

Wu v The Queen Criminal law - Practice and procedure - Jury - Failure of juror to attend due to reported illness - Juror discharged by trial judge - Trial continued without juror - Whether trial judge erred in discharging juror - Whether judge's power or discretion miscarried in the terms in which he exercised it - Whether juror incapable of continuing to act - Whether the decision to discharge a juror and the decision to continue with fewer than 12 jurors involve separate considerations. Jury - Criminal trial - Juror discharged for reported illness - Whether the decision to discharge a juror and the decision to continue with fewer than 12 jurors involve separate considerations. Words and phrases - "incapable of continuing to act". Jury Act 1977 (NSW), ss 19, 22.

Aboriginals - Native title - Right to hunt wild animals - Regulation by State fauna protection legislation - Whether inconsistent with continued existence of right - Whether right extinguished prior to preservation by Native Title Act 1993 (Cth). Constitutional law - Inconsistency between Commonwealth and State laws - Regulation of exercise of native title right by State fauna protection legislation - Whether inconsistent with Native Title Act 1993 (Cth) - Operation of Racial Discrimination Act 1975 (Cth). Animals - Wild animals - Property vested in the Crown - Whether constitutes absolute or full beneficial ownership. Property - Nature of proprietary interests - Relationship between owner and subject matter. Statutes - Construction - Meaning of "Crown" - Operation of State fauna protection legislation vesting "property" in the Crown. Crown - Immunity - Queensland - Extent of immunity conferred by State fauna protection legislation. Words and phrases - "property" - "Crown" - "vesting" - "wild by nature". The Constitution, s 109. Fauna Conservation Act 1974 (Q), ss 7, 24, 24A, 25, 27, 30, 54, 60, 67, 71(2), 83(3), 84. Native Title Act 1993 (Cth), ss 211, 223.

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - claim that right of pre-emption under a management agreement "... had transmuted into an equitable interest in the property upon the conditions for exercise of the pre-emption rights having being satisfied" - conditions not satisfied - no interest in land - claim to right of first refusal under lease - right of no effect unless land subdivided - no obligation to subdivide - no subdivision carried out - no interest in land - extension of third caveat sought - caveat had lapsed

The Queen v Olbrich Criminal law - Sentencing - Fact finding for the purpose of sentencing - Onus and standard of proof - Importation of prohibited import - Whether trial judge obliged to determine precise role of accused - Distinction between "courier" and "principal". Words and phrases - "courier" - "principal". Crimes Act 1914 (Cth), s 16A(2)(a). Customs Act 1901 (Cth), s 233

Inge v The Queen Criminal law - Sentencing - Murder - Mandatory life sentence - Parole - Minimum term during which prisoner not eligible for parole - Whether appellant's youth counts against him in determining non-parole period. Words and phrases - "imprisonment for life". Correctional Services Act 1982 (SA), ss 67(6), 70. Criminal Law Consolidation Act 1935 (SA), s 11. Criminal Law (Sentencing) Act 1988 (SA), ss 32(1)(a), 32(1)(b), 32(5)(c).

High Court - Practice and procedure - Removal of causes - Points raised in application not arguable. Constitutional law - Sovereignty - Whether certain legislation invalid due to a "break in sovereignty". Practice and procedure - Costs - Award - Jurisdiction against non-party - Indemnity costs where application obviously untenable. Courts and judges - Bias - Prejudgment of legal issues - Legal issues similar to those in case previously decided by judge - No grounds for reasonable suspicion that a proper hearing would not be obtained. The Constitution, covering cl 5, s 44(i). Corporations Law, s 471A(1). Judiciary Act 1903 (Cth), ss 40, 78

Contempt of court - Family Court of Australia - Scandalising the court - Source of power to punish - Whether such offence must be prosecuted upon indictment. Constitutional law - Contempt of court - Trial by jury - Whether indictable offence - Whether an offence against a law of the Commonwealth. Courts and judges - Bias - Reasonable apprehension - Family Court of Australia - Speech by Chief Justice responding to criticisms of Court - Independence of members of the judiciary - Whether conduct or opinions of Chief Justice gives rise to a reasonable apprehension of bias on the part of trial judge. Words and phrases - "law of the Commonwealth". The Constitution, Ch III, ss 71, 80. Family Law Act 1975 (Cth), ss 21, 21B, 35, 112AP. Family Law Rules (Cth), O 35. Judiciary Act 1903 (Cth), s 24.

Crimmins v Stevedoring Industry Finance Committee Negligence - Duty of care - Statutory authority for stevedoring industry - Worker directed to places of work involving risk of injury - Whether duty to take affirmative action to protect worker - Factors relevant to determination of existence of duty. Statutes - Interpretation - Transfer of liabilities from one statutory authority to another - Meaning of "liabilities and obligations" - Whether includes inchoate causes of action. Words and phrases - "liabilities and obligations". Stevedoring Industry Act 1949 (Cth), s 13(a). Stevedoring Industry Act 1956 (Cth), ss 8, 17(1)(a), 17(1)(d), 17(1)(1), 17(1)(o), 17(1)(p), 17(2), 17(3), 18(1), 20, 23(4), 25(b), 25(e), 28(b)(i), 33(1), 33(2), 35, 36(1). Stevedoring Industry Acts (Termination) Act 1977 (Cth), ss 14(a), 14(b), 15. Stevedoring Industry Finance Committee Act 1977 (Cth).

Workers Compensation - Police - Compensation - Disease contracted in the course of employment - Aggravation of a disease where employment was a contributing factor - Whether officer entitled to compensation - Nature of entitlement - Necessity of appeal to Government and Related Employees Appeal Tribunal to vindicate entitlement - Whether "hurt on duty", Police Regulation (Superannuation) Act 1906 (NSW), s 1(2) - Whether an "injury", Workers Compensation Act 1987 (NSW), s 4(b) - Relationship between definition of "hurt on duty" and Police Service Regulations 1990 (NSW), reg 98. Police - Compensation - Incapacity of officer - Disease contracted in the course of employment - Aggravation of a disease where employment was a contributing factor - Procedure for vindicating entitlement to compensation - Appeal from decision of Commissioner of Police to Government and Related Employees Appeal Tribunal. Administrative law - Police - Workers compensation - Procedure for vindicating entitlement to compensation - Decision of delegate of Commissioner of Police - Appeal to Government and Related Employees Appeal Tribunal. Words and phrases - "hurt on duty" - "injury". Government and Related Employees Appeal Tribunal Act 1980 (NSW), ss 5, 24, 48, 54. Police Regulation Act 1899 (NSW), s 12. Police Regulation (Appeals) Act 1923 (NSW), s 6(1)(c). Police Regulation (Superannuation) Act 1906 (NSW), ss 1(2), 10. Police Regulation (Superannuation and Appeals) Amendment Act 1979 (NSW). Police Service Act 1990 (NSW), ss 31, 186, 219. Supreme Court Act 1970 (NSW), ss 48, 75A. Workers Compensation Act 1987 (NSW), ss 4, 33. Police Rules 1977 (NSW), r 76(1). Police Service Regulations 1990 (NSW), reg 98. GAUDRON ACJ, Mc

Parliamentary elections (Cth) - Senate - Death of incumbent Senator from Western Australia - Choice of replacement Senator pursuant to s 15 of the Constitution - Court of Disputed Returns - Jurisdiction - Petition - Whether prescribed limitation period for filing petition is a jurisdictional requirement - Whether unconscionable to rely on jurisdictional requirement. Constitutional law - Elections - Senate - Death of incumbent Senator from Western Australia - Choice of replacement Senator pursuant to s 15 of the Constitution - Procedure necessary to challenge validity - Court of Disputed Returns. Practice and Procedure - Court of Disputed Returns - Jurisdiction - Petition - Whether prescribed limitation period for filing petition is a jurisdictional requirement - Whether unconscionable to rely on jurisdictional requirement. The Constitution, s 15. Commonwealth Electoral Act 1918 (Cth), Div 1 of Pt XXII, ss 353(1), 355, 358. Judiciary Act 1903 (Cth), s 18. Constitution Acts Amendment Act 1899 (WA), s 5. GLEESON CJ, GAUDRON, Mc

International Ltd Airservices Australia v Monarch Airlines Limited Airservices Australia v Polaris Holding Company Administrative law - Aviation - Civil Aviation Authority - Charges levied by CAA for use of services and facilities - Whether charges were reasonably related to expenses incurred in provision of services and facilities - Whether particular charges required to relate to particular services - Whether charges amounted to taxation. Constitutional law - Acquisition of property - Statutory liens imposed on leased aircraft where lessee had accrued charges remaining unpaid - Discharge of liens by payment of charges and penalties by lessors - Whether such liens constituted the acquisition of property otherwise than on just terms. Constitutional law - Taxation - Statutory authority - Provision of services to be paid for by users - Whether law effecting indirect subsidy between users of services a law imposing taxation. Constitutional law - Executive government - Statutory authority - Provision of services to be paid for by users - Whether financial structure permitted by ss 81 and 83 of the Constitution. Statutory interpretation - Statutory instrument - Construction to be adopted where two alternative constructions available. Liens - Statutory liens imposed on property to secure debts of lessee - Whether acquisition of property otherwise than on just terms. Words and phrases - "fee for service" - "just terms" - "reasonably related" -"taxation" - "value". The Constitution, ss 51(xxxi), 55, 81, 83. Civil Aviation Act 1988 (Cth), ss 66, 67, 68-81.

Taxation – GST – A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("GST Act") – Supply of a going concern – Where respondent purchased premises subject to existing lease – Whether continuing observance of lessor's obligations constituted the making of supplies through an enterprise which were neither taxable supplies nor GST-free supplies – Whether respondent liable to an increasing adjustment under s 135-5 of GST Act – Whether respondent's intended supply of residential premises by way of lease was for a "price" within the meaning of s 9-75 of GST Act. Words and phrases – "GST", "increasing adjustment", "price", "supply of a going concern". A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 38-325, 40-35, 135-5.

X v The Commonwealth Discrimination law - Disability discrimination - Appellant discharged from army on account of HIV-positive status - Discrimination admitted - Discrimination alleged to be lawful - Appellant alleged to be unable to carry out the inherent requirements of the particular employment - Meaning of "inherent requirements of the particular employment" in s 15(4)(a) of the Disability Discrimination Act 1992 (Cth) - Whether appellant "unable" to perform inherent requirements with reasonable safety. Discrimination law - Disability discrimination - Infectious disease - Whether s 48 of the Disability Discrimination Act 1992 (Cth) provides an exclusive code for determining whether discrimination on account of an infectious disease is lawful. Discrimination law - Disability discrimination - "Combat duties" and "combat-related duties" - Whether s 53 of the Disability Discrimination Act 1992 (Cth) provides an exclusive code for determining whether discrimination in relation to "combat duties" and "combat-related duties" is lawful. Administrative law - Application for order of review - Error of law - Whether applicant must show a different result was inevitable or merely open if no error was made. Words and phrases - "inherent requirements", "unable to perform". Administrative Decisions (Judicial Review) Act 1977 , ss 5(1)(f), 16(1). Defence Force Discipline Act 1982 (Cth), ss 3(1) and 29(1). Disability Discrimination Act 1992 (Cth), ss 5, 15(2)(c), 15(4), 44(1), 48, 53.

Giumelli & Anor v Giumelli Equity - Relief - Equitable estoppel - Constructive trust - Equitable charge - Whether relief confined to reversal of detriment - Relevance of other appropriate remedies and of third party interests to measure of relief. Words and phrases - "constructive", "defensive equity". The Commonwealth v Verwayen (1990) 170 CLR 394, discussed. GLEESON CJ, Mc

Webster v Yates Property Corporation Pty Limited Negligence - Professional negligence - Legal practitioners - Standard of care. Acquisition of land - Determination of compensation - Special value of land to dispossessed owner - Theory of "head start" to developers. Legal practitioners - Professional liability - Negligence - Barristers and solicitors - Immunity from action. Words and phrases - "market value" - "special value" - "head start". Trade Practices Act 1974 (Cth), s 52. Public Works Act 1912 (NSW), s 124. Darling Harbour Authority Act 1984 (NSW), s 12

Lipohar v The Queen Winfield v The Queen Criminal law - Jurisdiction - Conspiracy - Conspiracy to defraud at common law - Whether offence triable in a State where substantive elements of offence took place in other States and abroad - Whether offence triable in a State other than the State where the conspiracy was formed - Whether sufficient connection between subject matter of offence and State of trial. Common law - Nature - Whether common law of Australia or individual States - Criminal law - Whether considerations of comity arise between States - Relevance of Australian Constitution - Conspiracy to defraud - Whether offence against common law of South Australia or "laws of that State". Courts and judges - Supreme Court of South Australia - Jurisdiction - Criminal law - Conspiracy to defraud at common law. Words and phrases - "overt act" - "crime is local" - "comity" - "jurisdiction" - "venue" - "law area" - "law district". Criminal Law Consolidation Act 1935 (SA), ss 5C, 270(2). Supreme Court Act 1935 (SA), s 17(2)(a).

Statutes – Statutory construction – Clause 8(1)(g) of Sched 2 to Broadcasting Services Act 1992 (Cth) ("BSA") conditioned commercial radio broadcasting licence on licensee not using broadcasting service in commission of offence against another Commonwealth Act or a law of a State or Territory – Authority's functions included suspension and cancellation of licences and taking enforcement action under BSA – Authority authorised to conduct investigations for purposes of its functions – Where, as part of investigation, Authority made finding that licensee used broadcasting service to commit offence against State law and thereby breached cl 8(1)(g) licence condition – Whether Authority had power to do so in absence of criminal court finding offence proven. Constitutional law (Cth) – Judicial power – Where ss 10 and 12 of Australian Communications and Media Authority Act 2005 (Cth), ss 5, 170 and 178 of BSA and cl 8(1)(g) of Sched 2 to BSA authorised Authority to find licensee of commercial radio broadcasting licence breached cl 8(1)(g) licence condition and to take enforcement action under ss 141 and 143 of BSA prior to criminal court finding offence proven – Whether provisions thereby impermissibly confer judicial power on Authority. Words and phrases – "adjudging and punishing criminal guilt", "administrative enforcement action", "judicial power", "used in the commission of an offence". Australian Communications and Media Authority Act 2005 (Cth), ss 10, 12. Broadcasting Services Act 1992 (Cth), ss 5, 141, 143, 170, 178, 179; Sched 2, cl 8(1)(a), (g).

Practice and procedure - Preliminary discovery - Legal professional privilege - Loss of privilege - Waiver by disclosure to third party. Australian Capital Territory - Separation of powers - Representative government - Nature of relationship between the ACT Legislative Assembly and the ACT Executive. Words and phrases - "client legal privilege". Evidence Act 1995 (Cth), ss 118, 122. Supreme Court Rules (ACT), O 34A rr 2, 5. Australian Capital Territory (Self-Government) Act 1988 (Cth).

Esso Australia Resources Limited v The Commissioner of Taxation Practice and procedure - Discovery - Legal professional privilege - Whether test for privilege is "dominant purpose" test or "sole purpose" test. Evidence - Legal professional privilege - Client legal privilege - Test for - Whether "dominant purpose or sole purpose". Statutes - Influence on common law - Evidence Act 1995 - Applicable in three Australian jurisdictions - Whether enactments affect development of common law - Significance of non-enactment in other jurisdictions - Relevance (if any) of Act to application to review past authority of High Court. Words and phrases - "client legal privilege". Evidence Act 1995 (Cth), ss 118, 119. Federal Court Rules, O 15 r 15.

The Queen v Puckeridge Criminal law - Causation - Whether evidence capable of satisfying jury beyond reasonable doubt that act of defendant caused death of victim - Test for sufficiency of evidence. GAUDRON, Mc