Cases and authorities

Criminal procedure - Committal proceedings - Jurisdiction of Magistrate to hear committal proceedings - Proceedings to be conducted "in the presence or hearing of the defendant" - Whether essential that defendant understand and follow the proceedings - Deaf, mute and illiterate defendant - Whether an order for prohibition should be made. Criminal procedure - Committal proceedings - Requirement in Justices Act 1848 (NT), ss 110 and 111 that Magistrate address defendant in certain terms - Whether mandatory or directory. Criminal procedure - Committal proceedings against defendant not possible - Whether Crown may proceed by way of ex officio indictment. Words and phrases - "in the presence or hearing of the defendant". Justices Act (NT), ss 106, 110, 111. Kunnath v The State [1993] 1 WLR 1315; [1993] 4 All ER 30, considered. GAUDRON, Mc

Graham v The Queen Criminal Law - Evidence - Hearsay - Exception to Hearsay Rule - Complaint of sexual assault - Prior complaint evidence - Whether complaint made when facts "fresh in the memory" of complainant. Criminal Law - Evidence - Credibility - Exception to Credibility Rule - Whether evidence fabricated - Discretion to admit prior consistent statement - Factors affecting discretion. Words and Phrases - "fresh in the memory". Evidence Act 1995 (NSW), ss 66, 108, 192. GLEESON CJ. I agree with the reasons for judgment of Callinan

Lee v The Queen Evidence - Hearsay rule - Previous representation by witness including alleged confession by accused - Whether entire previous representation could be admitted as prior inconsistent statement - Whether report of confession could be used to prove the truth of the alleged confession. Evidence Act 1995 (NSW), ss 60, 137.

Bathurst City Council v PWC Properties Pty Limited Local government - Council resolution - Validity - Classification of land - Whether land "operational" or "community" - Whether land "subject to a trust for a public purpose". Trusts - Charitable trust - Trust for purpose beneficial to the community - Vesting of land in local authority for purpose of publicly accessible free car park. Trusts - Charitable trust - Enforcement - Standing. Trusts - Charitable trust - Inappropriateness as remedial device - Availability of other adequate remedies. Words and phrases - "trust", "public purpose", "land subject to a trust for a public purpose". Local Government Act 1993 (NSW), ss 25, 26, Sched 7 cl 6(2). Local Government Act 1919 (NSW), ss 518, 526. GAUDRON, Mc

Fejo & Anor v Northern Territory of Australia & Anor Aboriginals - Native title to land - Extinguishment - Whether grant of fee simple extinguishes native title - Whether native title can revive when land once again held by the Crown. Aboriginals - Native title to land - Registered native title claimants - Right to negotiate - Applications for injunction and summary dismissal - Whether court can consider merits of native title claim in determining those applications. Native Title Act 1993 (Cth), Pt 2, Div 3, subdiv B. GLEESON CJ, GAUDRON, Mc

Tabe v The Queen Criminal law – Attempted possession of dangerous drug – Unopened parcel contained dangerous drug – Innocuous substance substituted by police for drug – Principal offender obtained custody of unopened parcel – Appellant charged with aiding, abetting or counselling attempted possession of dangerous drug – Whether possession of a dangerous drug pursuant to s 9 Drugs Misuse Act 1986 (Q) requires proof of a mental element – Whether attempting to possess a dangerous drug pursuant to s 4(1) of the Criminal Code (Q) requires proof of a mental element – Whether custody of a dangerous drug without knowledge of its contents is sufficient to establish possession or an attempt to possess – Whether requisite state of knowledge differs between principal offender and accessory alleged to have aided, counselled or procured custody of receptacle. Criminal law – Onus of proof – Whether possession of a dangerous drug pursuant to s 9 Drugs Misuse Act requires Crown to prove a mental element – Whether s 57(d) Drugs Misuse Act requires accused to prove absence of a mental element. Criminal Code (Q), ss 4(1), 7(1), 24, 36(1), 535, 536, 583 Drugs Misuse Act 1986 (Q), ss 9, 44, 44A, 57(c), 57(d), 117(1) Words and Phrases – "possession", "[a]ttempts to commit offences".

Hwang v The Commonwealth Fu v The Commonwealth Constitutional law - Validity of Australian Citizenship Act 2005 (Cth) - Whether Constitution provides power with respect to citizenship - Whether such power arises from express or implied terms of Constitution - Whether power with respect to citizenship arises from status as independent sovereign nation. Constitutional law - Citizen - Whether "citizen" is synonym for "the people of the Commonwealth" - Relationship between citizenship and alienage - Citizenship as status to which other rights attach. Constitutional law - Relationship between Constitution and international law. Australian Citizenship Act 2005 (Cth). Migration Act 1958 (Cth). Words and phrases: "the people of the Commonwealth", "alien", "citizen". Mc

Banditt v The Queen Criminal law - Break and enter and commit serious indictable offence - Sexual assault - Recklessness as to consent - Appellant broke and entered complainant's house at night while complainant asleep - Complainant alleged appellant commenced intercourse while complainant asleep - Appellant claimed that complainant was awake and consented to intercourse and that appellant thought complainant was consenting - Complainant had rejected appellant's advances on a previous occasion - Whether trial judge erred in directing jury that appellant could have known complainant was not consenting because he was reckless as to consent - Whether recklessness requires more than advertence to possibility of lack of consent or requires determination to proceed with intercourse regardless of lack of consent - Whether appropriate to direct juries to apply an ordinary understanding of "recklessness". Words and phrases - "reckless". Crimes Act 1900 (NSW), ss 61I, 61R, 112(1).

Burke v LFOT Pty Limited Trade and commerce - Damages - Equitable contribution - Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act - Whether solicitor who gave negligent advice should contribute to the loss suffered by his client as a consequence of another's misrepresentation which loss could have been avoided by careful advice by the solicitor - Whether equitable maxims prevent requirement of contribution. Equity - Equitable contribution - Scope of - Requirement of co-ordinate liability - Whether solicitor who gave negligent advice should contribute to loss suffered by client as a consequence of another's representation where the loss could have been avoided by careful advice by the solicitor. Contribution - Equitable contribution - Scope of and availability - Co-ordinate liability - Requirements of - Whether compatible with the obligations imposed by Trade Practices Act 1974 (Cth) for breach of s 52 of the Act. Words and phrases - "co-ordinate liability", "natural justice". Trade Practices Act 1974 (Cth), ss 52, 75B, 82, 87.

Constitutional law (Cth) - Relationship between Commonwealth and State - Imposing any tax on State property - Building society controlled by State instrumentality - Whether building society is the State for the purposes of s 114 of the Constitution. Associations and Clubs - Building Societies - The nature and structure of building societies. Words and phrases - "property of any kind belonging to a State". Constitution, s 114. GLEESON CJ, GAUDRON, McHUGH AND HAYNE JJ. SGIO Building Society Limited was formed, as a building society, under the Building Societies Act 1886 (Q), and later changed its name to Suncorp Building Society Limited. Still later, by operation of law[1], it became SGH Limited and provision was made for it to become a company governed by the companies legislation. It is convenient to refer to it as "SGH" even though the transactions and events which give rise to this matter took place before the entity was given this name. In March 1995, the respondent, the Commissioner of Taxation, issued an assessment of the income tax payable by SGH for the year ended 30 June 1994. SGH objected against the assessment contending that two payments (the first in an amount of $23,002,000, and the second in an amount of $2,011,095) should not be included in its assessable income. SGH contended that the prohibition in s 114 of the Constitution against the Commonwealth imposing any tax on property belonging to a State applied. It alleged that it was, at the relevant time, the State of Queensland or was carrying on business as an agent of the State, and that the receipt of these sums, being in each case a capital receipt, constituted property for the purposes of s 114. The Commissioner wholly disallowed the objection. Pursuant to Div 5 of Pt IVC of the Taxation Administration Act 1953 (Cth), SGH appealed to the Federal Court of Australia against the disallowance of the objection. The part of the cause pending in the Federal Court which involved the questions: (a) whether SGH Limited is the "State" for the purposes of s 114 of the Constitution; and (b) whether the tax in question is a "tax on property" for the purposes of s 114 of the Constitution, was removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth). The two questions which we have identified were reserved for consideration of a Full Court on a Case Stated. At the conclusion of argument, the Court ordered that the questions reserved be answered: (a) No (b) Unnecessary to answer and indicated that reasons would be published at a later date. What follows are our reasons for joining in the order that the questions be answered as they were. Section 114 Section 114 provides that: "A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State." What was said to be the relevant property in this case were two sums of money which had been received by SGH in the course of the year of income in question. The first sum, $23,002,000, was paid to SGH pursuant to the Building Societies Fund Act 1993 (Q), from the Consolidated Fund established by s 34 of the Constitution Act 1867 (Q). The Building Societies Fund Act 1993 provided for payments to building societies totalling $49,995,000. It also provided that the amount of the gross assets standing to the credit of the Contingency Fund established under the Building Societies Act 1985 (Q) (less $500,000) were to be paid into the Consolidated Fund. The Contingency Fund had been established to provide protection to persons who subscribed, contributed, lent or deposited money with building societies and SGH, and all other building societies in Queensland, were bound to and did make contributions to the Contingency Fund according to their share capital and the amount of deposits they held. When the Building Societies Act 1985 repealed the Building Societies Act 1886 , a new Contingency Fund was established and the funds of the old fund were transferred to the new fund. It was the assets of this fund that were paid into the Consolidated Fund. For reasons which do not now matter, the transfer of assets from the Contingency Fund to the Consolidated Fund did not take place as quickly as it was thought it would. Interest accrued on the assets of the Contingency Fund in the meantime and the assets transferred to the Consolidated Fund were more valuable than had been expected. The Building Societies Fund Act 1993 did not provide for that event (except by providing that all assets of the Contingency Fund, less $500,000 should be transferred to the Consolidated Fund). Amounts totalling the accrued interest were distributed to the building societies (including SGH) as ex gratia payments under s 106 of the Financial Administration and Audit Act 1977 (Q). It is that payment, of $2,011,095, that is the second of the sums said to be relevant property. Whether income tax levied upon the taxable income derived by a taxpayer during a year of income can amount to a tax on particular sums which are received during the relevant year is, at the least, open to serious doubt[2]. Income tax is not levied upon particular receipts of a taxpayer or upon the assessable income of a taxpayer. It is levied upon the amount which remains after deducting from a taxpayer's assessable income all allowable deductions[3]. This, however, is a question which it is not necessary to decide in determining the first of the questions reserved. Section 114 speaks of one polity (in this case the Commonwealth) imposing "any tax on property of any kind belonging to" another polity (here, the State). At least three kinds of issue may arise. First, what is meant by "tax on property"? That requires consideration of what constitutes a tax and what constitutes a tax on property. Secondly, what is meant by "property ... belonging to" a State? Thirdly, how is "State" to be understood? The question, whether SGH is the "State" for the purposes of s 114, focuses upon the third of the issues we have identified. Nevertheless, it is essential to bear in mind the context in which the question arises - a context which requires identification of a connection between a tax and property (a tax on property) and a connection between the property and a "State" (property belonging to a State). The property which was said to be taxed in this case was money received by SGH. That is, the property in question was property received by, and held in the name of, SGH. Is SGH to be treated as the relevant polity (the State of Queensland), or an "emanation" of the State[4], or an "agency" or "instrumentality" of the State[5]? (It is not necessary, in this case, to consider whether, or when, it is apt to use these last three terms.) Both the expression used in s 114, "property ... belonging to a State", and similar expressions, are to be found elsewhere in the Constitution. Section 85 which deals with "[w]hen any department of the public service of a State is transferred to the Commonwealth" refers to "all property of the State of any kind, used exclusively in connexion with the department" and to "any property of the State, of any kind used, but not exclusively used in connexion with the department". At least in that context, "property of the State" is used to refer to property over which the executive government of the State has power of disposition, being property which is used, at least in part, in connection with the department of the public service of that State. Sections 98 and 104 refer, in the former case, to "railways", and in the latter to "a railway", "the property of" a State. Given that "before 1890 all the six Colonies had established State railways, the control of which formed a very large and important part of State administration"[6] and that, in at least some cases, the colonial railway commissioners had been incorporated[7], it is clear that, as recognised in The Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employes Association ("the Railway Servants Case"), the interposition of a corporation did not take the particular railways outside the constitutional reference to railways, "the property of" a State. Similarly, banking activities were conducted by corporations under legislation enacted by the colonial legislatures[8] and in s 51(xiii) this activity was referred to as "State banking"[9]. Against the background of these other provisions of the Constitution, it is evident that references in s 114 to the Commonwealth and a State are not to be understood narrowly. Reinforcement for that view comes from other provisions of the Constitution and, in particular, s 75. It was in the context of s 75, and its provisions for the original jurisdiction of this Court, that Dixon J referred to the Constitution going "directly to the conceptions of ordinary life" and said that[10]: "From beginning to end [the Constitution] treats the Commonwealth and the States as organizations or institutions of government possessing distinct individualities. Formally they may not be juristic persons, but they are conceived as politically organized bodies having mutual legal relations and amenable to the jurisdiction of courts upon which the responsibility of enforcing the Constitution rests." Section 114 is a prohibition, albeit a prohibition which affects both the Commonwealth and the States. In Attorney-General (Vict); Ex rel Black v The Commonwealth[11], Mason J said of s 116, and its prohibition on the Commonwealth making any law for establishing any religion, that: "As a prohibition is a restriction on the exercise of power there is no reason for enlarging its scope of operation beyond the mischief to which it was directed ascertained in accordance with the meaning of the prohibition at the time when the Constitution was enacted." Subsequently, however, in Deputy Commissioner of Taxation v State Bank (NSW) ("the State Bank Case")[12] in a judgment of the whole Court, the contention that the same approach should be adopted in construing s 114 was rejected. It was said that the argument just identified "may have some strength in the context of a prohibition which is clearly directed against an identifiable mischief", but that "to give a strict construction to s 114 would be more likely to frustrate than to achieve the attainment of its object, namely, the protection of the property of the Commonwealth and the States from the imposition of taxation by each other in the interests of their respective financial integrity". Argument of the present matter proceeded from an acceptance of what was said in the State Bank Case and it is, therefore, unnecessary to embark upon the troubled waters of more general questions about the preferable approach to constitutional interpretation. In the State Bank Case[13], the Court also rejected a submission that the question raised by s 114 is to be determined by asking whether a body is entitled to the privileges and immunities of the Crown, in accordance with the approach adopted in Townsville Hospitals Board v Townsville City Council[14]. There, Gibbs CJ had referred[15] to a strong tendency to regard statutory corporations as distinct from the Crown unless Parliament has expressly provided to the contrary, pointing out that the principle of equality before the law dictates such an approach. When a question arises under s 114, the answer depends upon the meaning and operation of the Constitution. In considering whether an entity, in whose name property said to belong to a State is held, falls within the description "the State" in s 114, it is, no doubt, relevant to consider the activities undertaken by that entity. Similarly, it will be relevant, and usually very important, to identify the legal relationship between the entity and the executive government of the State and to identify what rights or powers the executive government of the State has over the use and disposal of the property in question. Not only will those inquiries be necessary for the purpose of deciding whether the property belongs to "the State", they will also bear upon whether the entity in whose name the property stands is properly regarded as the State. Adopting what was said in the State Bank Case[16]: "[t]he question then is whether [in this case, SGH] is discharging governmental functions for the State or, to put it another way, is the State carrying on [the relevant business] through its statutory corporation". It is convenient to begin the examination of the relationship between SGH and the State by considering the circumstances in which SGH was formed. The circumstances of the establishment of SGH It was agreed that SGH was formed "as a matter of State governmental policy in order to provide stability in the building society industry in Queensland and to provide investor confidence, in that the establishment of [SGH] averted the collapse of seven building societies and the consequent loss of depositors' funds". To that end, amendments were made in 1976 to the Building Societies Act 1886 allowing the transfer of engagements or property of building societies at the direction of the Registrar of Building Societies[17]. In addition, a Contingency Fund was established to which (some) persons who suffered loss on default by a building society could resort. In May 1976, what is now SGH was formed under the name SGIO Building Society Limited. It was formed under the Building Societies Act 1886 by not less than 100 adult persons, qualified by the rules of the proposed building society, meeting, approving the rules and signing an application for membership of the proposed society and then proceeding to elect the first directors of the society[18]. Application for registration of the society having been made[19] the Registrar of Building Societies, being satisfied that the society had complied with the requirements of the Act, registered the society[20]. Upon registration of the society and notification of registration in the Gazette, "the then present members of the Society, together with such other persons as may from time to time become members of the Society" became a body corporate[21]. The Building Societies Act 1886 provided that in that Act, unless the context otherwise indicated, the terms "Building Society" or "Society" should have the meaning: "A Society having for its object, or one of its objects, the raising of a fund by payments, subscriptions, or contributions made by its members, and the application of such fund in assisting its members to obtain freehold or leasehold property, or in the making of loans or advances to its members or others, upon the security of freehold or leasehold property with the periodical repayment of principal and interest by instalments".[22] SGH, when formed, was such a body. The objects of SGH, stated in its rules, were: "(a) to raise funds by subscription or otherwise as authorised by the Act; (b) to apply those funds, subject to the Act and these Rules, in making advances and in such other ways as are authorised by the Act and these Rules; and (c) to render such services to its members and depositors as are incidental to attaining the objects specified in paragraph (a) or (b)." Building societies were originally unincorporated and terminating mutual associations. Later they became permanent. Members subscribed by investing in shares, but the share capital was withdrawable and subject to fluctuation[23]. The nature of a building society, as an association of persons in whose mutual interests the affairs of the society are conducted, strongly tends against a conclusion that such a society is the State. In 1976, after SGH was incorporated, seven Queensland building societies that were at least in danger of failing were directed by the Registrar of Building Societies to transfer their engagements to SGH. That direction to transfer, made under s 38C of the Building Societies Act 1886 , required the approval of the relevant Minister, the Treasurer. Pursuant to the direction, the assets and liabilities of the seven building societies passed to SGH. It was an agreed fact that the application for SGH's registration as a building society "was made so that it could accept the transfers from these building societies". It was further agreed that, at the time SGH was created, the State Government Insurance Office, to which further reference will be made shortly, took a mortgage debenture over the assets of SGH to secure a standby facility (up to a maximum of $43 million) to maintain liquidity reserves at the agreed level. SGH submitted that the circumstances of its establishment were of an "essentially public character". If by that expression it is intended to indicate that SGH was established because those who promoted its establishment saw that as being in the public interest, it is a proposition that may readily be accepted. So much would follow from the agreed fact that SGH was formed as a matter of State governmental policy in order to provide stability in the building society industry in Queensland and to provide investor confidence. But whether SGH was "the State" requires demonstration of more than government policy favouring or facilitating the creation of the entity in pursuit of some aspect of the public interest. No doubt it requires consideration of the circumstances and purposes of the entity's creation, but it also requires consideration of every feature of the entity which bears upon its relationship with the polity. That is why cases about s 114[24] have focused upon the ownership and management of the entity and the purposes the entity was required to pursue. It is those features which will most often reveal the relationship the entity has with the State, and if it is revealed by examination of them that the entity is wholly owned and controlled by the State concerned, and must act solely in the interests of the State, the conclusion that it is the State or, as was said in Inglis v Commonwealth Trading Bank of Australia[25], an "emanation" of the State will readily follow. We turn, therefore, to consider the ownership and management of SGH. Ownership and management To understand the structure of the ownership and management of SGH, it is necessary to say something about the State Government Insurance Office (Queensland). That entity was established as a statutory corporation under The State Government Insurance Office (Queensland) Act 1960 (Q). The Act provided[26] that the corporation represented the Crown and that due performance by the corporation of all contracts entered into by it, or on its behalf, was deemed to be guaranteed by the Crown. By s 7 of the Suncorp Insurance and Finance Act 1985 (Q), the corporation was continued in existence under the name "Suncorp Insurance and Finance" ("Suncorp"). This Act provides[27] that Suncorp represents the Crown and has all the immunities, rights and privileges of the Crown. The parties agreed that Suncorp "is the State for the purposes of s 114" of the Constitution. Suncorp controlled the organs of management of SGH. It appointed three of the six directors and could nominate both the Chairman and the Deputy Chairman of the board. The rules governing voting at directors' meetings enabled Suncorp's nominees to carry any motion they proposed. There were two classes of shares in SGH - A class and B class. At the relevant times, Suncorp held all B class shares. All A class shares were held by depositors. Holders of A class shares had limited rights to vote at general meetings. If in any financial year SGH made a loss, each holder of A class shares present at the Annual General Meeting had one vote on the resolutions for consideration of the accounts and the Directors' Report. At every General Meeting each holder of A class shares present had one vote on each resolution for the election of directors in the place of those retiring by rotation. Otherwise, holders of A class shares were not entitled to vote at any General Meeting of SGH. In these circumstances it is plainly right to say that Suncorp controlled SGH. But that control was not absolute. Suncorp could not lawfully require SGH, or its board, to act in disregard of the interests of A class shareholders, and it could not use its powers to control General Meetings of SGH in disregard of the interests of those A class shareholders. In the present context the nature and extent of the objects of SGH and of the consequential limitations on the powers of Suncorp over the organs of SGH are very important. It is convenient to identify the limitations on Suncorp's powers by reference to the legislation that governed the affairs of building societies in Queensland in 1993, when the payments which are in issue in the taxation appeal in the Federal Court were made. That legislation (the Building Societies Act 1985 ) applied to SGH as a permanent building society that was registered under the repealed Act, the Building Societies Act 1886 , and was deemed by the new Act to be registered under that Act[28]. The objects of SGH and the powers of Suncorp Section 82 of the Building Societies Act 1985 required officers of building societies to act honestly in the exercise of their powers and the discharge of the duties of their offices[29], to exercise a reasonable degree of care and diligence in the exercise of those powers and the discharge of those duties[30], not to do any act or thing directed to an object that is not an object of the society[31] and not to make improper use of certain information[32] or the position held[33]. These provisions of s 82 were to have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person by reason of the office held or employment in relation to a building society[34]. For present purposes it is of particular importance to emphasise the prohibition against doing any act directed to an object that is not an object of the society. The objects of SGH did not include any reference to advancing any interests of the State. Rather, they focused upon the interests of members and depositors. That this should be so is hardly surprising when regard is had to the nature of a building society revealed by the definition of that term contained in the Building Societies Act 1886 , and referred to earlier in these reasons. Moreover, the control of a General Meeting of SGH, which Suncorp could undoubtedly assert, was control that could not be exercised for purposes foreign to the purposes of the society as a whole. As was said in Ngurli Ltd v McCann[35]: "[T]he powers conferred on shareholders in general meeting and on directors by the articles of association of companies can be exceeded although there is a literal compliance with their terms. These powers must not be used for an ulterior purpose. 'The term fraud in connection with frauds on a power does not necessarily denote any conduct on the part of the appointor amounting to fraud in the common law meaning of the term or any conduct which could be properly termed dishonest or immoral. It merely means that the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power', per Lord Parker in Vatcher v Paull[36]. ... Voting powers conferred on shareholders and powers conferred on directors by the articles of association of companies must be used bona fide for the benefit of the company as a whole." Although Ngurli Ltd v McCann concerned a company limited by shares, the same principles apply, with equal force, to the powers given to the directors and General Meeting of SGH. Nor would it have been an answer to an allegation that a director of SGH had not acted in the interests of the society as a whole for that director to say that he or she had acted according to the wishes of the person who had, directly or indirectly, brought about the appointment of that director to the board. The position of nominee directors has given rise to some debate. It is not necessary to attempt, in this matter, to resolve all of those issues. It is enough to say that the fact that a director of a body corporate is nominated to office by another does not permit the director to act in disregard of the interests of the corporation as a whole[37]. Whether the statements by Jacobs J in Re Broadcasting Station 2GB Pty Ltd[38], about what must be shown to establish a breach of duty by such a director, are accepted (a question we need not consider) nothing in that decision, or other cases which have considered the matter[39], can or should be understood as denying the more basic proposition about the duty that we have earlier described: that directors may not act in disregard of the interests of the corporation as a whole. Similarly, it is not necessary to consider the particular questions that may be presented where the constitution of the body corporate may positively permit account to be taken of other, external, interests[40]. The rules of SGH made no such provision. That is a matter of particular significance for present purposes. Unlike the body considered in Inglis v Commonwealth Trading Bank of Australia[41], or the body considered in both State Bank of NSW v Commonwealth Savings Bank of Australia[42] and the State Bank Case[43], there was no provision in the rules of SGH, or its governing statute, that it should pursue the interests of the State or the public or that its policies could be determined by the executive government. It follows that the control which could be exercised by Suncorp over the affairs of SGH (whether through the board or at a General Meeting) was hedged about by the obligation not to disregard the interests of persons other than the State. Those other persons were corporators but it is not the presence or absence of corporators which is of critical significance to the application of s 114 in this case. There may be cases in which a corporation, which has corporators, is within the operation of s 114[44]. What matters, here, is that there were corporators who did not hold their interests on behalf of the State but did so because they were depositors. As a result, the body, in whose name stood the property on which it was said that the Commonwealth had imposed a tax was a body whose organs of management, in making decisions about that property, could not disregard the interests of persons other than the State. In this case, that requires the conclusion that the entity concerned, SGH, was not the State for the purposes of s 114. Other features of the relationship between SGH and the State to which reference was made in argument - Suncorp's provision of a standby facility, the audit of SGH's financial statements by the Auditor-General[45], Suncorp's power to direct SGH to change its name - do not permit, let alone require, the opposite conclusion. At the relevant time, SGH was not the "State" for the purposes of s 114 of the Constitution.

Administrative Law (Cth) - Judicial review - Freedom of information - Documents affecting relations between the Commonwealth and a State - Internal working documents of an agency, a Minister or the Government of the Commonwealth - Refusal of access to documents in respect of which Minister's delegate issued certificates pursuant to ss 33A(2) and 36(3) of the Freedom of Information Act 1982 (Cth) ("the FOI Act") - FOI Act provides that, subject to Pt VI of the Act, certificates, while in force, "establish conclusively" that disclosure would be contrary to public interest or that documents are exempt documents and do not contain matter the disclosure of which would be in the public interest - Whether "conclusive evidence" provisions impliedly amend conferral of jurisdiction on the Federal Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or by the Judiciary Act 1903 (Cth) ("the Judiciary Act") - Whether issue of certificates reviewable by the Federal Court under the ADJR Act or the Judiciary Act. Federal Court of Australia - Jurisdiction - Whether Court's jurisdiction under ADJR Act or the Judiciary Act impliedly limited by "conclusive evidence" provisions of the FOI Act - Whether jurisdiction conferred by the ADJR Act and the Judiciary Act extends to judicial review of decision to issue certificates under ss 33A(2) and 36(3) of the FOI Act. Statutes - Interpretation - Conferral of jurisdiction upon a court - Whether later legislation withdraws or limits conferral of jurisdiction - Need for clear and unmistakable implication to have such effect. Commonwealth Constitution, s 77(i). Freedom of Information Act 1982 (Cth), ss 11, 33A, 36. Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 8. Judiciary Act 1903 (Cth), s 39B. Administrative Appeals Tribunal Act 1975 (Cth). Ombudsman Act 1976 (Cth). GLEESON CJ, Mc

CRIMINAL LAW AND PROCEDURE - Crown appeal against sentence - Appeal against conviction by offender contemplated - Delay in final decision on legal aid - Desirability of same Bench considering all issues

PRACTICE & PROCEDURE - application to set aside default judgment - whether the defendant has demonstrated a good defence on the merits - whether the interests of justice require that the defendant should be permitted to contest the plaintiff's claim - implications that follow from failing to provide an explanation as to failure to file a defence - construction of loan agreement - undertaking by the plaintiff regarding separate proceedings to be brought by the defendant against the plaintiff for purported wrongful termination of a separate contractual agreement

Aboriginals - Native title - Extinguishment - Application for determination of native title to land and waters - Claim area partly subject to lease granted "in perpetuity" under Western Lands Act 1901 (NSW), s 23 - Whether "lease in perpetuity" conferred upon lessee a right of exclusive possession over leased land - Whether grant of lease extinguished any native title in relation to land covered by lease - Operation of Div 2B of Pt 2 of Native Title Act 1993 (Cth) and Pt 4 of Native Title (New South Wales) Act 1994 (NSW) - Whether grant of lease a "previous exclusive possession act" under Native Title Act 1993 (Cth), s 23B. Property - Real property - "Lease in perpetuity" - Operation of Real Property Act 1900 (NSW) in respect of perpetual leases - Historical development of statutory "lease in perpetuity" and other species of perpetual tenure as substitutes for Crown grant of determinable fee simple - Whether imposition of conditions and tenurial incidents on grantee of "lease in perpetuity" denied to grantee right of exclusive possession. Practice and procedure - Observations on appropriateness of practice of reserving for separate determination questions respecting alleged extinguishment of native title. Words and phrases - "previous exclusive possession act", "lease". Native Title Act 1993 (Cth), ss 23B, 23E, 242(1), 248A. Racial Discrimination Act 1975 (Cth). Crown Lands Act 1884 (NSW). Real Property Act 1900 (NSW). Western Lands Act 1901 (NSW), ss 18, 23, Sched A. Crown Lands Consolidation Act 1913 (NSW). Native Title (New South Wales) Act 1994 (NSW), s 20.

Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Court held there was a vacancy in representation of Tasmania in Senate – Where Court made directions for special count of ballot papers to fill vacancy – Where orders sought following special count that Mr Steven Martin be declared elected as senator to fill vacancy – Where Mr Martin held offices of mayor and of councillor of local government corporation under Local Government Act 1993 (Tas) – Whether Mr Martin incapable of being chosen or of sitting as senator by reason of s 44(iv) of Constitution – Proper construction of s 44(iv) of Constitution – Where no dispute that office of mayor or of councillor is "office of profit" – Whether office of mayor or of councillor constitutes office of profit "under the Crown". Words and phrases – "civil service", "conflict between duties", "conflict of duty and interest", "control over holding or profiting from holding", "employment by the Crown", "employment in the public service", "executive government", "executive influence", "from the Crown", "incapable of being chosen or of sitting", "office of profit", "public service", "under the Crown", "will of the executive government". Constitution, ss 44(iv), 45(i), 48. Commonwealth Electoral Act 1918 (Cth), s 376. Local Government Act 1993 (Tas).

Constitutional law (Cth) - Exclusive powers of Commonwealth Parliament - Duties of excise - State law imposing tobacco wholesalers' and retailers' licence fee in contravention of s 90, Constitution - Claim against State for money had and received to the use of taxpayer - Federal jurisdiction - Whether action arises under the Constitution or involves its interpretation - Constitution, s 76(i). Constitutional law (Cth) - Exclusive powers of Commonwealth Parliament - Duties of excise - State law imposing tobacco wholesalers' and retailers' licence fee in contravention of s 90, Constitution - Claim against State for money had and received to the use of taxpayer - Right to proceed against State - State laws imposing conditions on right of action against State - Whether State laws apply of their own force - Whether State laws apply pursuant to s 64 or s 79, Judiciary Act 1903 (Cth) - Crown Suits Act 1947 (WA), ss 5, 6 - Limitation Act 1935 (WA), s 47A. Constitution, covering cl 5, ss 75, 76, 77(iii), 78, 90. Judiciary Act 1903 (Cth), ss 39(2), 64, 79. Business Franchise (Tobacco) Act 1975 (WA), s 6(1). Crown Suits Act 1947 (WA), ss 5, 6. Limitation Act 1935 (WA), s 47

Statutes -- Interpretation - Amending Act - Appellant's workers' compensation claim did not fall within the specific saving provision in the amending Act - Whether the general saving provision in s 37(1) of the Interpretation Act 1984 (WA) applied to supplement the specific saving provision in the amending Act - Section 37(1) applied where a written law "repeals" an enactment - Whether a repeal accompanied by the substitution of provisions for those repealed was a "repeal" for the purpose of s 37(1) - Significance of the distinction between "amend" and "repeal" - Relevance of principle that abolition of common law rights must be made clearly. Workers' compensation - Limitation on awards of common law damages - Whether appellant was entitled to a grant of leave to commence common law proceedings for personal injury - Amending Act creating a new and stricter regime provided a specific exemption for actions commenced before the assent date - Appellant had only applied for leave to commence proceedings before the assent date - Whether the general saving provision in the Interpretation Act 1984 (WA) applied to enable the appellant to proceed under the earlier regime. Words and phrases - "repeal". Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D(4). Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32(7). Interpretation Act 1984 (WA), s 37. Mc

IN THE MATTER OF AN APPEAL BY GAYE ALEXANDRA MARY LUCK Appeal against order refusing leave to issue process - Whether leave to appeal required - Where proposed action frivolous, vexatious or an abuse of process - Whether order final or interlocutory. Judiciary Act 1903 (Cth), s 34(2) Mc

Mighty River International Limited v Hughes Mighty River International Limited v Mineral Resources Limited Companies – Voluntary administration – Deed of company arrangement – Where administrator required to form opinion about certain matters as soon as practicable after administration begins – Where administrator required to convene meeting of creditors within convening period – Where convening period may be extended by court order – Where company executed deed which imposed moratorium on creditors' claims while administrators conducted further investigations – Where deed provided no property of company available for distribution to creditors – Whether deed impermissibly extended convening period – Whether administrators formed the requisite opinions – Whether deed should have specified some property available for distribution to creditors – Whether deed a valid deed of company arrangement – Whether deed should be declared void. Words and phrases – "arrangement alternative to liquidation", "convening period", "deed of company arrangement", "DOCA", "holding DOCA", "in the interests of creditors", "moratorium on claims", "property of the company available for distribution to creditors", "to be available to pay creditors' claims", "voluntary administration". Corporations Act 2001 (Cth), Pt 5.3A, ss 438A, 439A, 444A, 445

Milat v The Queen Practice and procedure - Application for special leave to appeal - Oral submissions - Right to make oral submissions - International practice - Power of Court to order production of prisoner for purpose of making oral submissions in person or by video link - Status of applicant for special leave - Discretionary factors. Words and phrases - "application for special leave to appeal". High Court Rules, O 69A rr 3, 15. Mc

Silbert v Director of Public Prosecutions for Western Australia Constitutional law - Judicial power of the Commonwealth - Vesting in State courts - Power of State Parliament to confer functions incompatible with exercise by State court of judicial power of the Commonwealth - State Act deems person who dies before a charge is finally determined to be taken to have been convicted of a "serious offence" - Whether provision of State Act amounts to parliamentary determination of guilt and imposition of conviction - Whether provision of State Act precludes a court from making any or any sufficient inquiry into whether the deceased committed the offence - Whether State law invokes the principles in Kable v Director of Public Prosecutions (NSW) (1996) [1996] HCA 24; 189 CLR 51. Criminal law - Confiscation of profits - Person charged with "serious offence" dies before charge finally determined - Crimes (Confiscation of Profits) Act 1988 (WA) deems deceased to be taken to have been convicted of the "serious offence" - Application for pecuniary penalty order and forfeiture order - Whether court precluded from making any or sufficient inquiry into whether the deceased committed the offence - Relevance of principles identified in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 - Whether legislative determination of guilt of the offence and imposition of conviction. Words and phrases - "abscond", "serious offence". Crimes (Confiscation of Profits) Act 1988 (WA), ss 3, 6, 15, 53. Criminal Property Confiscation Act 2000 (WA), ss 6, 157, 160. GLEESON CJ, Mc

Muir v The Queen Practice and procedure - High Court - Application for special leave to appeal from orders of Supreme Court of Australian Capital Territory - Application on motion by an indigent prisoner in custody for an order requiring his production to High Court to enable him to make oral submissions in support of application for special leave - Whether the High Court has power to make such an order - Whether it would do so in the case - Whether application to be decided on the papers. Constitutional law (Cth) - High Court - Appellate jurisdiction - Whether implied powers under the Constitution to uphold the authority of the High Court - Whether question of power of High Court to order production of an unrepresented prisoner applicant for special leave should be referred to a Full Court - Whether appellate jurisdiction of the High Court engaged at stage of special leave application - Whether differing practices of custodial authorities in different Australian jurisdictions relevant to disposition of motion - Whether motion and application could and should be decided on the papers. Criminal law and procedure - Sentencing - Convicted federal offender - Statutory provisions governing sentencing of prisoner convicted of offences against Crimes Act 1914 (Cth) - Whether sentencing judge correctly applied federal sentencing law - Whether decision of Court of Appeal attended by sufficient doubt to warrant grant of special leave. Constitution, ss 73, 75. Crimes Act 1914 (Cth), s 16G. Judiciary Act 1903 (Cth), ss 35(2), 35AA(2), 78. High Court Rules, O 55 r 1, O 55 r 39, O 69A r 15. Mc

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 Immigration - Refugees - Applications for protection visas by de facto husband and wife nationals of Ukraine - Well-founded fear of persecution - Husband claimed to suffer religious persecution as Jehovah's Witness - Refugee Review Tribunal found that incidents of which husband complained were individual and random incidents and did not amount to persecution, and that the chance that he would suffer persecution in future was remote - Tribunal rejected claim that state encouraged or condoned persecution of Jehovah's Witnesses - Whether Full Court of Federal Court erred in concluding that Tribunal committed jurisdictional error in failing to consider a different claim of whether the husband might suffer future harm from private individuals because of religious belief and whether the government of Ukraine was able in a practical sense to stop such harm occurring - Absence of evidence before Tribunal to support a conclusion that Ukraine did not provide level of protection required. Immigration - Refugees - Applications for protection visas - Relevance of attitude or capacity of state to whether fear of harm well-founded, to whether there is persecution, to whether a person is outside country of nationality owing to well-founded fear of persecution and to unwillingness of person to seek protection of state - Protection theory and accountability theory - Non-state actor - Harm by non-state actors - Persecution by non-state actors - State complicity in persecution - Persecution tolerated or condoned by state - Failure of state protection - Unwilling or unable to provide protection. International law - Treaty - Interpretation - Refugees Convention - "Persecution" - Different theories of persecution - Meaning of treaty provisions - Proper approach to meaning - Primacy of text - Approaches of courts in countries of refuge - Protection theory and accountability theory - Whether a third theory applicable. Words and phrases - "well-founded fear", "persecution", "protection". Migration Act 1958 (Cth), s 36(2). Convention relating to the Status of Refugees, Art 1A(2).

Bayside City Council v Telstra Corporation Limited Local government - Council - Rates and charges - Respondent corporations were carriers licensed under the Telecommunications Act 1997 (Cth) - Respondent carriers installed underground and aerial coaxial cabling in local government areas under the responsibility of the various local authorities - Local authorities in New South Wales resolved to make charges pursuant to Local Government Act 1993 (NSW), s 611 in respect of respondents' underground and aerial cabling - Local authorities in Victoria declared and levied rates on land occupied by respondents' cables pursuant to Local Government Act 1989 (Vic), Pt 8 - Statutory provisions provided exemptions from relevant charges or rates in respect of other owners or occupiers of public land - Whether State laws imposing such rates and charges discriminated against respondent carriers within meaning of Telecommunications Act 1997 (Cth), Sched 3, cl 44, and were therefore invalid under the Constitution, s 109. Constitutional Law (Cth) - Powers of the Parliament - Whether provision conferring upon respondent carriers an immunity from discriminatory burdens imposed upon them in their capacity as carriers by State or Territory laws is a law with respect to postal, telegraphic, telephonic and other like services - Constitution, s 51(v) - Inconsistency between Commonwealth and State laws - Constitution, s 109 - Whether immunity conferred by a federal law, having regard to its substance and operation, in a significant manner curtailed or interfered with the capacity of States to function as governments. Constitution, ss 51(v), 109. Telecommunications Act 1997 (Cth), Sched 3, cl 44. Local Government Act 1993 (NSW), s 611. Local Government Act 1989 (Vic), Pt 8.

Courts and judicial system - Family Court - Jurisdiction - Scope of welfare jurisdiction - Constitutional basis of welfare jurisdiction - Whether conferral of jurisdiction in relation to a "matter" - Children in immigration detention - Whether welfare jurisdiction extends to children of marriages of parents in immigration detention - Whether Family Court in exercising welfare jurisdiction can make orders directed at third parties - Whether Family Court has power to order release from detention - Whether any general welfare jurisdiction and powers of Family Court authorises orders inconsistent with specific obligations imposed on federal officers under Migration Act. Family law - Children - Children in immigration detention - Welfare jurisdiction - Scope of welfare jurisdiction - Whether welfare jurisdiction extends to children of marriages of persons in immigration detention - Whether court has power to order release from detention. Family Court of Australia - Jurisdiction - Scope of welfare jurisdiction - Whether welfare jurisdiction extends to children of marriages of parents in immigration detention. Family Court of Australia - Order - Certificate granting leave to appeal to High Court of Australia - Relevant considerations governing grant of such certificate. Migration - Detention - Unlawful non-citizens - Children in immigration detention - Whether Family Court has power to make orders releasing children from detention. International law - Interpretation of legislation in conformity with treaty obligations - Relevance and effect of provisions of treaties to which Australia is a party - Obligation to give effect to clear provisions of valid Australian statutory law notwithstanding alleged breaches of international law. Words and phrases - "jurisdiction", "matter". Constitution, covering cl 5, ss 51(xxi), 51(xxii), 73, 74, 75, 76, 77. Family Law Act 1975 (Cth), Pt VII, ss 60B, 67ZC, 68B, 69H, 69ZH, 95(b). Migration Act 1958 (Cth), ss 189, 196. GLEESON CJ AND Mc

Heron v The Queen Criminal law - Application for special leave to appeal - Applicant to argue point not raised at trial or in intermediate appellate court - Whether circumstances of the case are exceptional. Criminal law - Murder trial - Defences - Provocation - Misdirection of trial judge - No objection to direction - No request for further directions - Significance of misdirection in circumstances of the case.

Appeal - Rehearing - Review of findings of fact based on trial judge's assessment of credibility of witnesses - Whether findings inconsistent with incontrovertibly established facts - Power of appellate court to set aside findings. Appeal - Issue not raised at trial - Where argued that expert report based on matters not proved or supported by the evidence - Whether re-examination of facts by appellate court appropriate. Appeal - Rehearing - Substitution of judgment of appellate court for that of trial judge - Whether re-trial an appropriate remedy. Supreme Court Act 1970 (NSW), s 75

Stamp duties - Where land intended to be subject of managed investment scheme - Contract of sale between vendor, responsible entity of scheme and custodian of scheme property - Transfer pursuant to contract made to custodian alone - Ad valorem duty paid on contract - Whether transfer liable to ad valorem duty - Whether transfer to custodian was a transfer made to the purchaser within s 54(6) Stamp Act 1894 (Q). Words and Phrases: "made to the purchaser". Managed Investments Act 1998 (Cth). Stamp Act 1894 (Q), ss 54(1), 54(3), 54(6), 54(6A).

Weiss v The Queen Criminal Law - Appeal - Application of "proviso" that no substantial miscarriage of justice has actually occurred - Appellant convicted of murder - Evidence led at trial that should not have been adduced - Appellant appealed against conviction - Appeal court to review the whole case - Utility of reference to what a jury, the actual trial jury or a hypothetical reasonable jury, would have done. Words and phrases - "proviso", "substantial miscarriage of justice", "substantial miscarriage of justice has actually occurred". Crimes Act 1958 (Vic), s 568(1).

Practice and procedure - Appeal - Credibility of witness - Whether intermediate appellate court entitled to substitute its own findings as to credibility for that of trial judge - Whether court erred in ordering retrial limited to assessment of damages. Courts - Appeal - Procedural fairness - Expert witnesses - Court expressed preference for evidence of particular expert witnesses - Whether court's reference to such expert witnesses as "well known to the court" constituted a breach of procedural fairness - Whether matter should be remitted for rehearing. Words and phrases - "procedural fairness", "retrial". Supreme Court Act 1935 (WA), s 58(1)(a). GLEESON CJ. I agree with the orders proposed by Kirby J. For the reasons explained by Kirby J, the Full Court of the Supreme Court of Western Australia was justified, in accordance with the principles re-affirmed by this Court in Fox v Percy[1], in reversing the decision of the primary judge on the principal issue in the appeal. The remark about the Full Court's high regard for some of the expert witnesses in the case was capable of being misunderstood, but in the end it is not a matter to which I would attach importance. I also agree that the disposition of the case by the Full Court was inappropriate in that there should be a retrial.

SENTENCING - psychiatric illness - effect upon weight to be given to general and specific deterrence - accumulation - broad judicial discretion

HUTCHISON 3G AUSTRALIA PTY LTD v CITY OF MITCHAM Post and telecommunications - Telephonic and related services - Structures for telecommunications purposes - Appellant was a licensed telecommunications carrier under Div 3 of Pt 3 of the Telecommunications Act 1997 (Cth) - Appellant installed certain telecommunications facilities ("downlink sites") upon structures ("stobie poles") erected by second to sixth respondents ("ETSA") - Some stobie poles replaced by ETSA at the cost of the appellant for the purpose of installation of downlink sites - Appellant had notified first respondent of intention to do so without applying for development approval pursuant to the Development Act 1993 (SA) - First respondent issued enforcement notices pursuant to s 84 of the Development Act - Appellant challenged notices - Whether either or both of the appellant or ETSA were required to obtain development approval - Whether in relation to the replacement of certain stobie poles the appellant undertook "development" within the meaning of the Development Act - Whether stobie poles when fitted with downlink sites were "towers" within the meaning of cl 6 of Sched 3 to the Telecommunications Act - Whether replacement stobie poles were "towers" - Whether downlink sites were "low-impact facilities" within the meaning of Sched 3 to the Telecommunications Act - Whether downlink sites constituted "co-located facilities" for the purposes of Pt 7 of the Schedule to the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) ("the Determination") - Whether noise emitted by an equipment shelter is relevant to "the levels of noise that are likely to result from the operation of the co-located facilities" for the purposes of Item 2 of Pt 7 of the Schedule to the Determination. Constitutional law (Cth) - Inconsistency of laws - Telecommunications Act did not "cover the field" of the regulation of the installation of the appellant's downlink facilities to the exclusion of the Development Act - Federal statutory policy included the efficient establishment and maintenance of nationwide and international telecommunications facilities in Australia - Relevance of statutory policy of co-operation between federal and State instrumentalities - Whether necessary to resolve possible constitutional questions of inconsistency of laws. Words and phrases - "low-impact facility", "tower", "co-located facilities", "facility", "to undertake development". Judiciary Act 1903 (Cth), ss 78A, 79. Telecommunications Act 1997 (Cth), s 7, Sched 3. Crown Proceedings Act 1992 (SA), s 9(2). Development Act 1993 (SA), ss 4, 32, 33, 49A, Sched 14A. Electricity Act 1996 (SA), s 23(1)(j). Constitution, s 109.

AssetInsure Pty Limited v New Cap Reinsurance Corporation Limited (in liquidation) Insurance - Statutory construction - Reinsurer entered into a voluntary winding up - Reinsurer underwrote part of a reinsurance contract in respect of risks occurring outside Australia - Reinsurance contract accepted in Australia and issued in Australia - Whether liabilities incurred by reinsurer are "liabilities in Australia" under s 116(3), Insurance Act 1973 (Cth) - Whether "liabilities in Australia" limited to liabilities under contracts of insurance that meet the criteria specified in s 31(4), Insurance Act 1973 (Cth) - Whether "liabilities in Australia" extended to liabilities under contracts of insurance where, according to common law principles of the conflict of laws, the situs of the liability is Australia. Corporations Law - Winding up - Whether s 562A, Corporations Act 2001 (Cth) applies to contracts of reinsurance made by reinsurer to reinsure against liabilities that it would have under contracts of reinsurance - Whether a contract of reinsurance is a "relevant contract of insurance" for the purposes of this section. Words and phrases - "liabilities in Australia", "relevant contract of insurance". Corporations Act 2001 (Cth), s 562A. Insurance Act 1973 (Cth), ss 31, 116.

Macleod v The Queen Criminal law - Property offence - Fraudulent application of company property by director or officer - Accused also sole beneficial shareholder of company - Whether consent of accused, as sole shareholder, cures what would otherwise be a breach by accused, as director or officer, of s 173, Crimes Act 1900 (NSW). Criminal law - Property offence - Fraudulent application of company property by director or officer - Directions - Whether trial judge misdirected jury in failing to identify the use of dishonest means as an essential element of s 173, Crimes Act 1900 (NSW) - Whether trial judge erred in failing to direct that it was necessary for accused to have realised that his impugned conduct was dishonest by the current standards of ordinary, decent people. Words and phrases - "fraudulently", "claim of right". Crimes Act 1900 (NSW), ss 4(1), 173.

Permanent Trustee Australia Limited v FAI General Insurance Company Limited (In Liq) Insurance - Obligations of insured to disclose to insurer - Where decision "probably not" to renew policy for following year - Whether decision was a failure to disclose a "matter relevant to the decision of the insurer whether to accept the risk" to extend policy under s 21(1)(a) of the Insurance Contracts Act 1984 (Cth) - Whether non-disclosure was a misrepresentation in breach of s 26(2) of the Act. Fraud - Whether trial judge erred in failing to consider that evidence of an alleged misrepresentation became fraudulent - Whether fraud was clearly and distinctly pleaded and put at trial - Whether appellate court was warranted in finding error on this ground. Insurance Contracts Act 1984 (Cth), ss 21(1)(a), 26(2). Mc

Re Minister for Immigration and Multicultural Affairs; Ex parte Dranichnikov Immigration - Refugees - Protection visa - Fear of persecution for reason of membership of particular social group - Whether Refugee Review Tribunal considered applicant was member of broader class of social group than that claimed - Whether Tribunal misunderstood and failed to address applicant's case - Whether constructive failure by Tribunal to exercise jurisdiction - Whether failure to accord natural justice. Practice and procedure - High Court - Concurrent applications for special leave to appeal and for constitutional writs - Discretionary considerations in the grant of constitutional relief - Whether availability of appeal a discretionary bar to constitutional relief - Relevance of repeal of applicable legislation to the form of relief provided. Constitution, s 75(v). Migration Act 1958 (Cth), s 476. GLEESON CJ. I regret that I am unable to share the conclusion reached by the other members of the Court, not because of any disagreement on a matter of principle, but because I have a different understanding of the reasons of the Refugee Review Tribunal ("the Tribunal"), whose decision is under review. The facts are set out in the other judgments. Since mine is a dissenting view, on a purely factual issue, I will state my reasons briefly. It is contended that, so far, all who have considered Mr Dranichnikov's case - the delegate, the Tribunal, Kiefel J, and the Full Court of the Federal Court - have misunderstood, and therefore failed to address, that case. The particular question to be decided is whether that is true of the Tribunal. The essence of the contention is that the Tribunal wrongly thought that the relevant social group to be considered, for the purpose of deciding whether Mr Dranichnikov had a well-founded fear of persecution by reason of membership of such a group, was businessmen, whereas his case was that he was a member of a more limited group consisting of businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals. The Tribunal, in its reasons, said: "The Tribunal was informed of the circumstances surrounding the Applicant's actions in relation to trying to stamp out the attacks on entrepreneurs which had been increasing in the latter part of 1993 and the beginning of 1994. He had joined a number of other business people and had made representations to the Mayor and attended public meetings to highlight the plague of corruption and lawlessness. In order to pursue his objective in the field in which he was employed, he worked for the formation of a committee for the registration of property titles; this was achieved. Both the Applicant and his wife gave a number of examples of police inaction after crimes had been committed and standover tactics employed when citizens were doing the right thing and reporting instances to the police. Indeed the Applicant claims that the police put pressure on him to sign a letter requesting the discontinuation of the investigation into the attempt on his own life. He signed the letter because he felt that request as a threat. That was in late February or early March 1994. ... The Tribunal finds that the harm feared is not motivated by a Convention reason, hence the Tribunal need not proceed to a consideration of whether the fear is well-founded ... The Applicant's adviser had posited in his submission that the Applicant was a member of a particular social group, namely, businessmen in Russia. Even if the Tribunal were to accept this proposition, there is no indication that the persecution is 'for reasons of' membership of this group. Following the attempt on the Applicant's life in 1994 the Applicant does not report anything other than dissatisfaction with the society and the political system as a whole; there have been no further attempts to harm him or his family, nor are there indications of behaviour on the part of the Applicant which would attract the adverse attention of anyone for reasons of being a businessman in Russia. The actions which the Applicant described, which he took with other businessmen, in making representations to the Mayor were those of a concerned citizen and not part of a cognizable unit which could be considered a particular social group under the Convention." The Tribunal's reasons were given on 11 August 1998. The submission to which the Tribunal was referring was contained in a letter of 3 August 1998 to the Tribunal from Mr Dranichnikov's solicitors. The letter said: "In recent years businessmen in Russia have been persecuted and murdered purely for belonging to that specific group of people known as 'businessmen'. Mr Dranichnikov by definition of his employment was recognised as a member of the business community who was also actively involved in the pursuit of justice. Mr Dranichnikov by virtue of his businessman status and his stance against crime was considered obstructive and worthy of elimination. The attempt on his life is a very real indication of the graveness of his situation and his justifiable fears of returning to his country of origin." (emphasis added) The solicitors evidently, and for good reason, recognised that there may be a difficulty in persuading the Tribunal to treat people who complained about failure to enforce the law, or people who took a "stance against crime", as a "particular social group". Accordingly, the submission stressed Mr Dranichnikov's status as a "businessman", and argued that businessmen constituted a "specific group of people". Mr Dranichnikov's stance against crime was given as a reason why he was at particular risk, but when it came to identifying the relevant social group, his status as a businessman was put in the forefront of the argument. The reasons of the Tribunal responded to the submission as it was put. The Tribunal considered that the most that could be said was that he was a "concerned citizen and not part of a cognizable unit which could be considered a particular social group". The Tribunal appears to me to have considered the argument advanced by Mr Dranichnikov's solicitors, in the light of the evidence and the Convention. I am not persuaded that the Tribunal misunderstood Mr Dranichnikov's case, or failed to address it. I would dismiss the application for special leave to appeal, and the application for constitutional writs, with costs.

EVIDENCE – client legal privilege – plaintiffs seeking access to documents produced on subpoena by third party – whether question of access determined under Evidence Act 1995, UCPR r 1.9 or common law – where documents sought were underlying documents informing state of mind said to appear from another document – whether privilege waived – (NSW) Evidence Act 1995 s 122, 131A, Uniform Civil Procedure Rules r 1.9. -

Dhanhoa v The Queen Evidence - Identification evidence - Where reliability of evidence not in dispute - Whether trial judge required to inform jury of special need for caution before accepting evidence - Evidence Act 1995 (NSW), s 116. Evidence - Inconsistency between appellant's statement to police and his evidence at trial - Where prosecutor did not contend that statement to police was a lie indicating consciousness of guilt - Whether trial judge should have given direction in relation to lies. Words and phrases: "miscarriage of justice". Criminal Appeal Act 1912 (NSW), s 6. Evidence Act 1995 (NSW), ss 114, 115, 116.

Income tax - Income - Whether taxpayer turned her athletic talent to account for money - Whether receipt of prize money, government grants, appearance fees and sponsorship payments constitute assessable income - Whether income derived from conduct of a "business" - Whether conduct of business a relevant consideration. Words and phrases - "assessable income", "business", "professional sport". Income Tax Assessment Act 1997 (Cth), ss 3-1, 4-1, 4-15, 6-5(1). Income Tax Assessment Act 1936 (Cth), s 6(1).

GAS v The Queen SJK v The Queen Criminal law - Sentencing - Prosecution granted leave to file new presentment charging manslaughter in place of murder against two accused - Counsel for prosecution informed trial judge of "plea agreement" whereby accused would plead guilty and prosecution would submit that sentencing should proceed on basis that each accused was an aider or abettor rather than principal offender - Prosecution appeal against sentence on ground of manifest inadequacy - Appeal succeeded on basis that insufficient weight given to objective gravity of killing and aggravating circumstances, and undue weight given to youth and rehabilitation prospects of offenders - Whether Court of Appeal erred in dealing with the appeal in a manner contrary to the "plea agreement" - Effect of admission involved in pleading guilty to unlawful and dangerous act manslaughter - Culpability of aider and abettor relative to that of principal offender. Criminal law - Sentencing - "Plea agreement" - Whether prosecution conduct of appeal was contrary to "plea agreement" - Respective responsibilities of prosecution, accused and trial judge with respect to "plea agreements" - Whether trial judge's responsibility to find and apply sentencing principles may be circumscribed by conduct of counsel - Whether appropriate that "plea agreement" should deal with issues of sentencing principle - Desirability of reducing "plea agreement" to writing - Discretion of appeal court in prosecution appeals against sentence to decline to intervene although error is shown in sentencing process. Words and phrases - "plea agreement", "aider and abettor".

Criminal law - Companies - Offence against Corporations (Western Australia) Act 1990 (WA) - Attraction of federal jurisdiction under s 75(iii) of the Constitution by presence of Australian Securities and Investments Commission as party to prosecution - Section 206A(2) of the Justices Act 1902 (WA) conferred standing to apply for leave to appeal (and, if granted, to institute and conduct an appeal) upon "a party" to an earlier appeal - Whether Australian Securities and Investments Commission empowered to appeal to the Full Court against the order of a single judge of the Supreme Court of Western Australia on appeal from summary proceedings - Whether s 79 of the Judiciary Act 1903 (Cth) "picked up" s 206A(2) of the Justices Act - Whether Australian Securities Commission Act 1989 (Cth) "otherwise provided" for the purposes of s 79 of the Judiciary Act. Constitutional law (Cth) - Federal jurisdiction - Australian Securities and Investments Commission a party - s 75(iii) of the Constitution - Substantive content of matter supplied by State law - Construction of legislation in co-operative national scheme. Appeal - Competency of appeal by Australian Securities and Investments Commission to the Full Court against the setting aside of an appeal to a single judge of the Supreme Court of Western Australia from conviction in summary proceedings. Constitution, s 75(iii). Judiciary Act 1903 (Cth), s 79. Australian Securities Commission Act 1989 (Cth), ss 11(4), 49. Justices Act 1902 (WA), s 206A(2). Corporations (Western Australia) Act 1990 (WA), ss 7, 58. GLEESON CJ, GAUDRON, Mc

Constitutional law (Cth) – Implications from Constitution – Where directions made under s 200(1)(b) and (d) of Public Health and Wellbeing Act 2008 (Vic) restricted movement of persons within Victoria – Where plaintiffs sought declarations that directions and s 200(1)(b) and (d) of Public Health and Wellbeing Act were invalid as an infringement of a freedom to move wherever one wishes for whatever reason ("freedom of movement") said to be implicit in Constitution – Where defendant demurred on ground that Constitution did not imply freedom of movement – Whether freedom of movement implicit in federal structure of Constitution – Whether freedom of movement protected by implied freedom of political communication – Whether freedom of movement implicit in s 92 of Constitution. Words and phrases – "constitutional implication", "constitutional interpretation", "COVID-19", "federal structure", "federation", "freedom of movement", "implied freedom of movement", "implied freedom of political communication", "interstate intercourse", "intrastate intercourse", "political communication", "quarantine", "terms and structure", "text and structure". Constitution, ss 51(ix), 92. Public Health and Wellbeing Act 2008 (Vic), ss 200(1)(b), 200(1)(d).

State of New South Wales v Amery Industrial law (NSW) - Discrimination - Respondents were female teachers employed on a temporary basis as "supply casuals" by the New South Wales Department of Education and Training - Different salary scales applicable to permanent teachers and casual teachers - Permanent teachers entitled to progress along a common incremental salary scale consisting of 13 levels of annual salary - Casual teachers remunerated on a salary scale consisting of five levels, the highest of which equated to level eight of the salary scale of permanent teachers - All but two of the respondents had ceased teaching on a permanent basis either in order to rear children or for other family reasons - Evidence suggested that the proportion of permanent teachers employed in NSW government schools who are men is substantially higher than the proportion of casual teachers who are men - Permanent teachers subject to statutory requirements that did not apply to casual teachers - Whether subjection of casual teachers to different salary scale constituted discrimination on the grounds of sex in the terms or conditions of employment within ss 24(1)(b) and 25(2)(a) of the Anti-Discrimination Act 1977 (NSW) - Whether respondents were required to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the respondents do not or are not able to comply - Whether requirement that respondents obtain appointment as permanent full-time or part-time teachers was a "requirement or condition" within the meaning of s 24(1)(b) - Whether any such requirement was reasonable. Words and phrases - "requirement or condition", "employment", "terms or conditions of employment". Administrative Decisions Tribunal Act 1997 (NSW), ss 113, 119. Anti-Discrimination Act 1977 (NSW), ss 24, 25, 54. Industrial Relations Act 1996 (NSW). Supreme Court Act 1970 (NSW), s 48. Teaching Services Act 1980 (NSW), ss 4, 38, 44, 47, 50, 71, 73, 75, 76. GLEESON CJ. I would allow this appeal, substantially for the reasons given by Hodgson JA in his dissenting judgment in the Court of Appeal[1]. The relevant statutory provisions and facts are set out in the reasons for judgment of Gummow, Hayne and Crennan JJ ("the joint reasons"). The issues argued in this Court were narrower than those debated in the Administrative Decisions Tribunal of New South Wales ("the Tribunal"), the Appeal Panel of the Tribunal ("the Appeal Panel") and the Court of Appeal. For present purposes, it is necessary and sufficient to consider two related issues. The first is whether the New South Wales Department of Education and Training ("the Department"), the alleged perpetrator of indirect discrimination on the ground of sex, required the respondents to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex comply or are able to comply, and with which the respondents do not or are not able to comply ("the requirement issue"). The second is whether it was shown that such requirement was not reasonable having regard to the circumstances of the case ("the reasonableness issue"). Both issues are raised by the terms of s 24(1)(b) of the Anti-Discrimination Act 1977 (NSW) ("the Act"). Although I accept the respondents' case on the requirement issue, a resolution of the reasonableness issue requires close attention to the nature of the relevant requirement. The requirement issue The Tribunal, the Appeal Panel, and all members of the Court of Appeal decided this issue in favour of the respondents. Nevertheless, it is evident that there was some difficulty in relating the complaint of the respondents to the terms of the Act. It is easy enough to state, in broad terms, the grievance expressed by the respondents. It is also of some importance to note what they were not complaining about. The Department functioned, and the respondents were employed, within a scheme of statutory regulation found in the Teaching Services Act 1980 (NSW)[2] ("the Teaching Services Act"). That scheme was outside the control of any of the parties to these proceedings, and constituted one of the "circumstances of the case" required by s 24(1)(b) to be considered. As explained in the joint reasons, under the statutory scheme, the Education Teaching Service is divided into "officers" and "temporary employees". The Director-General of Education is empowered to appoint appropriately qualified people to permanent positions as teachers in public schools. Under the Teaching Services Act, one of the incidents of permanent appointment is an amenability to direction by the Director-General to transfer from one teaching position to another (see ss 71 and 75 of the Teaching Services Act). Especially in relation to its geographical implications, this form of amenability to direction has important personal consequences for teachers. The evidence showed that the issue of teacher transfers is, so far as possible, dealt with consensually, and with regard to individual preferences and needs. Even so, behind the consensual arrangements there is a statutory power, which cannot be ignored by the parties to the arrangements. In fact, it is the inability of the respondents fully to submit themselves to a commitment to deployability that is at the heart of their claim of discrimination. Temporary employees, or casuals, are people who are not in permanent positions. In significant respects, the incidents of their employment differ from those which apply to permanent teachers. No doubt, the advantages and disadvantages of those incidents of employment vary in their effect on individuals, depending upon the personal circumstances, needs or preferences of the individual. From the point of view of the Department, managing a large, State-wide, teaching service, the differences are of importance. The complaint of the respondents has never been a complaint of unfair discrimination in the making of appointments to permanent positions. They do not complain of any requirement or condition that has to be met in order to qualify for permanent appointment. They do not complain of the manner in which permanent appointments are made. The Appeal Panel gave the following summary of the evidence with respect to the process by which teachers come to be employed with the New South Wales teaching service, whether as casuals or as permanent officers: "Whilst ss 47 and 50 of the [Teaching Services Act] respectively invests the Director General of Education with the power to appoint permanent and temporary staff, all applicants for appointment who have the appropriate qualifications in fact pass through the same 'gate'. The date of an application for employment is designated as the 'priority date'; in that application, the applicant can specify whether permanent or part time or casual employment is required, and can specify broad or narrow geographical areas, qualifications and interests in terms of subjects. The approval to teach is generally granted as approval to teach casually, it being unlikely that a permanent position meeting all of the applicant's criteria, and in respect of which the applicant has priority, is immediately available. When a vacancy in a permanent position arises, applications for permanency are ranked according to their priority date and the criteria nominated by the applicant. If that position is offered and declined, the priority date for that applicant becomes the date of declination. Thus, permanency becomes a function of the availability of a permanent position, the assigned priority date and the criteria stipulated by the applicant." Most of the respondents had applied for appointments as permanent teachers. They had placed geographical limitations on the teaching jobs they were prepared to accept. Their decisions in that regard were influenced by family responsibilities. The impact of those family responsibilities was central to a consideration of the comparative positions of men and women; but that comparison is not in dispute in this appeal. The respondents were not asserting that they had been discriminated against because their applications for permanency had been refused. It may be that the way in which the respondents put their claim of discrimination was constrained by the distinction drawn by statute between permanent officers and casual teachers, and by the statutory incidents of that difference in status. However that may be, it is important to note what the respondents were not asserting. The essence of the complaint of the respondents, and the basis of the damages awarded to them by the Tribunal, related to the rates of pay applicable to permanent officers and casual teachers respectively. In this respect, the respondents drew a distinction between "supply casuals" (such as the respondents) who, they said, for all practical purposes undertook the same teaching responsibilities as permanent teachers, and casuals who worked on a part-time, short-term basis. We are concerned only with the former. The Department pays teachers in accordance with rates and scales prescribed by the industrial agreements or awards operating from time to time. At the times relevant to this case, the rates and scales were set by the Teachers and Related Employees Enterprise Agreement made under the Industrial Relations Act 1991 (NSW) and, later, the Crown Employees (Teachers and Related Employees) Salaries and Conditions Award made under the Industrial Relations Act 1996 (NSW). Permanent teachers are paid according to a scale with 13 incremental components. A permanent teacher advances to the next increment every 12 months, until reaching the thirteenth increment. Casual teachers are paid according to a scale limited in its incremental increases to five, the highest increment of which is equivalent to the eighth increment on the permanent scale. As there is no further increment, casual teachers working after they have reached that level are paid less than permanent teachers with equivalent teaching experience. That is the nub of the complaint. The respondents do not complain of the fact that they were not appointed as permanent teachers; the limitations they placed upon their geographical availability brought that about. Nor do they make a wider criticism of the system for distinguishing between permanents and casuals, or of the relationship of that distinction to geographical availability. That system is based largely on statute. They say that the work value of supply casuals is no less than that of permanent officers. Supply casuals, of course, are both male and female; but the proportion of male teachers who are permanents is higher than the proportion of female teachers who are permanents. That is because family commitments tend to make some female teachers less mobile. In the Tribunal (which found in favour of the respondents), and the Appeal Panel (which found in favour of the Department), much attention was devoted to the background of the agreement and award, which were the outcome of a decision of the New South Wales Industrial Relations Commission. It was pointed out by the respondents that, in consequence of s 54 of the Act, it is no answer to what would otherwise be a case of unlawful discrimination to say that the conduct of the perpetrator is necessary to comply with the requirement of an award. Even so, the existence of an industrial agreement or an award may be a relevant circumstance in determining the issue of reasonableness. Part 6 of the Act contains a number of exceptions to the Act. Sections 55, 56, 57(2) and 59 provide that "[n]othing in [the] Act affects" certain activities or organisations. For example, nothing in the Act affects the provision of benefits by a building society (s 57(1)(d)). There are a number of such general exceptions. Section 54 provides that nothing in the Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with an order of any court (s 54(1)(d)). Before 1994 "order of any court" included "an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment". Following amendment in 1994, the expression "order of any court" no longer includes such an order or award. It is, therefore, no longer an answer to what would otherwise be a contravention of the Act to say that the relevant conduct was necessary in order to comply with a requirement of an industrial award. In this case, as will appear, the conduct of the Department the subject of the respondents' complaint was never necessary in order to comply with a requirement of an award. However, the reasonableness of the Department's conduct is to be considered having regard to the circumstances of the case. As a matter of construction of the Act, s 54(1)(d), after the 1994 amendment, did not require that an industrial award be disregarded in identifying the circumstances of a given case. Where, as here, the complaint is that the Department should have made over-award payments to some teachers, the wider industrial significance of such a course of action may be a material matter. The Department cannot answer the respondents' case simply by pointing to an award and saying that it is acting in accordance with the award. At the same time, if the respondents' case is that the Department should be making over-award payments to some teachers, the award system, and the award itself, may bear upon the reasonableness of the Department's conduct. Section 54(1)(d) does not require that the award be ignored; and the structure of the award is central to the respondents' case. This is a matter to which it will be necessary to return. It is unnecessary to distinguish between the agreement and the award, and, for convenience, further reference will be to the award. The Tribunal summarised the case for the respondents as follows: "It is said that by reason of the policy and practice of the Department to restrict the casual pay scales to level 8 of the permanent scale, they are underpaid having regard to the duties which they perform and the seniority they have established as employees. It is further contended that the policy is discriminatory because it operates harshly in the case of women teachers because the [respondents], prior to engaging in casual employment, were employed as permanent staff at the higher levels of remuneration and resigned in response to family responsibilities, and have effectively been precluded from achieving permanent status again because of the limitations on travel and career that those family responsibilities have entailed. It is said that this policy, found in the conditions of the enterprise agreement and the award, is discriminatory and unlawful in that it has the effect of discriminating against the [respondents] on the ground of their sex. In this regard it is put that as a proportion of casual teachers affected by the policy, women significantly outweigh men." While the Department has at all stages sought to justify its conduct as reasonable, (and succeeded in doing so in the view of the Appeal Panel and Hodgson JA in the Court of Appeal), it is necessary to be clear about what it is that the Department needs to justify. It does not need to justify the Act, with its distinction between permanents and casuals, or the differing statutory incidents attaching to the status of permanent or casual, or, in particular, the amenability of permanent officers to relocation. That is the work of Parliament, not the Department. Nor does it need to justify the award, which is the work of the Industrial Relations Commission and, no doubt, the outcome of industrial interaction involving different interest groups within the teaching service. (The Teachers Federation has taken no part in these proceedings at any stage.) If its own conduct is otherwise within the Act, it needs to justify that conduct as reasonable (leaving aside questions of onus). But what, exactly, is the conduct it needs to justify? That turns upon the identification of the requirement of the respondents "to comply with a requirement or condition" within s 24(1)(b) of the Act. It is the requirement which is subject to the test of reasonableness. What is the requirement? Beazley JA said: "The Tribunal held that the award that governs teacher salaries contains a requirement or condition 'that in order to qualify for higher rates of pay and entitlements as a teacher in NSW, it is necessary to have permanent status'. This is not correct because the award does not contain such a condition. Rather, it is the Department's practice of not making over-award payments that imposes the requirement." (emphasis in original) The "requirement" was, at all levels of the litigation, said to be "the requirement to have permanent status". The requirement to have permanent status was said to be a condition of access to the higher level of salary scales. However, if it is necessary to identify what the Department does that imposes that requirement (that is to say, the conduct of which the Department, as opposed to Parliament, or the Industrial Relations Commission, is the perpetrator), it must be, as Beazley JA said, that the Department adheres to a policy and practice of paying teachers in accordance with the award. The Department has the legal capacity to make over-award payments if it wants to. It could change its policy so as to pay supply casuals whose teaching has, in the sense considered by the Tribunal, the same work value as that of permanent teachers, above the award. It is difficult to imagine that if, in practice, it did so, it could restrict the over-award payments to female supply casuals, but that is another question. The Department could, if it wished, make over-award payments. It is in that sense that, as was held in the Tribunal, the Appeal Panel, and the Court of Appeal, it requires teachers to comply with a condition of having permanent status (with all the statutory incidents of that status, including deployability) in order to have access to the higher salary levels from which casual teachers are excluded. It is to the requirement, so understood, that the test of reasonableness is to be applied. It is not "the system" that is under scrutiny; it is the conduct of the Department within the system. No doubt, from the personal viewpoint of the respondents, they are employed by the Government. They may not distinguish between the role of the New South Wales Parliament in legislating about the teaching service and the role of the Department in implementing the legislation. The distinction, however, is legally significant. It is the Department that is the alleged perpetrator of discrimination, and it is the conduct of the Department that is in question. The issue of reasonableness I agree with the conclusion of Hodgson JA, that the Department's practice of not making over-award payments to supply casuals has not been shown to be unreasonable. The Department has the responsibility of managing a teaching service which is large in numbers and extensive in geographical scope. Issues of deployability, and deployment, are of major practical importance and, no doubt, of industrial sensitivity. Such issues are central to the difference between permanent and casual status. The statutory amenability of permanent teachers to re-deployment is, in economic and managerial terms, a matter of value to the Department. No doubt, at a particular school, if a teacher in one classroom is a permanent officer and a teacher in an adjoining classroom is a supply casual teacher, the quality and quantity of their teaching output may be identical. However, leaving pay to one side, the incidents of their employment are significantly different, and it does not follow that it is unreasonable to pay them differently. Beazley JA said that the Tribunal "found that the transfer requirements placed upon permanent teachers were such that they did not assist in determining the work value issue". Yet, at all stages of the proceedings, the Department has questioned the appropriateness of a narrow identification of the work value issue. If the issue is whether the teaching work of a history teacher who is a supply casual has the same value of that of a history teacher who is a permanent officer, then one answer may follow. However, if the question is whether, having regard to their respective conditions of employment, it is reasonable to pay one less than the other, a different answer may follow. Furthermore, from the point of view of the Department, the question of making over-award payments to some teachers would have been a matter of considerable managerial, and industrial, significance. Issues of relativity are notoriously sensitive in any workplace. As Hodgson JA pointed out, it is hardly a practical possibility that the Department should make over-award payments only to women, or to teachers whose family commitments make it difficult for them to submit to the full conditions of permanent appointment. The first course would discriminate against men. The second course would involve setting up criteria that would be difficult to formulate, and to apply in practice. If the Department adopted a practice of making over-award payments to some teachers, how could it, as a matter of industrial reality, limit such payments to one particular class of teacher (supply casuals)? There may be classes of permanent teachers, or individual permanent teachers, who also could make out a case for special treatment. As has been noted, compliance with a requirement of an award is not of itself an excuse for conduct that is otherwise unlawful (s 54). Nevertheless, in deciding whether conduct is unlawful, and for that purpose asking in accordance with s 24(1)(b), whether conduct is reasonable having regard to the circumstances of the case, the industrial context in which the conduct occurs, including the provisions of an award, may be a material circumstance. Hodgson JA said: "[The Tribunal] did not address the very existence of the enterprise agreement and award as a factor relevant to reasonableness, in that what had to be shown was that it was not reasonable for the Department [not] to make over-award payments to supply casual teachers. For reasons given above, in my opinion what then would have to be shown to be not reasonable was failing to make over-award payments available to all supply casual teachers, not just to women or to teachers with commitments to children." I agree, but would go further and say that what would have to be shown to be not reasonable was failure to make over-award payments to any teacher, or group of teachers. The respondents appear to accept that they could not seriously suggest that over-award payments should be made only to female supply casual teachers, much less to a certain group of female supply casual teachers. Once over-award payments are on the agenda, it would be difficult to justify restricting them to any particular class of teacher. It is to be emphasised that the question is not whether the whole system of dividing teachers into permanent and casual teachers, or the requirement of deployability, is reasonable. That system is set up by an Act of Parliament. The question is whether the conduct of the Department in not making over-award payments was shown not to be reasonable. The answer to that question is no. Conclusion The appeal should be allowed. I agree with the consequential orders proposed in the joint reasons.

Torts - Medical negligence - Wrongful life - Birth of severely disabled child - Agreed for the purposes of separate questions at first instance that the respondent doctor failed to diagnose the mother's rubella infection during pregnancy - Doctor failed to warn the mother of the risk of serious disability as a consequence of the rubella infection - Whether the appellant child born with disabilities can recover from the doctor. Duty of care - Medical practitioners - Whether the doctor owed the child a duty of care to diagnose rubella and advise the child's mother in relation to the termination of the pregnancy - Foreseeability of risk to the appellant - Whether the facts of the case fall within the established duty of care which medical practitioners owe to foetuses to take reasonable care to prevent pre-natal injury - Vulnerability of the appellant - Relevance of duty of care owed to the appellant's mother. Damage - Whether a life with disabilities is actionable damage - Whether it is possible to prove damage by comparing a life with disabilities with non-existence. Damages - Assessment - Measure of damages - Compensatory principle - Non-existence as a comparator - Comparison to child born without disability - Whether claim for special damages quantifiable - Whether only special damages may be awarded - Corrective justice. Public policy - Principle of the sanctity of human life - Whether life is capable of constituting a legally cognisable injury - Effect on disabled people of awarding damages for wrongful life - Whether it would be appropriate to award damages in respect of minor defects in circumstances where a child's mother would have terminated her pregnancy had she been warned of the risk of such defects - Whether disabled child could sue his or her mother for failing to terminate her pregnancy - Whether awarding damages for wrongful life would undermine familial relationships - Relevance of unforeseen advances in genetic science. Statutes - Whether common law can be developed by analogy with legislation - Whether it is possible to develop the common law by analogy in circumstances where there is no relevant legislative provision in any Australian jurisdiction - Relevance of legislature's inaction. Words and phrases - "wrongful life", "wrongful birth". Civil Liability Act 2002 (NSW), ss 70, 71. Civil Liability Act 2003 (Q), s 49A. Civil Liability Act 1936 (SA), s 67. GLEESON CJ. I have had the advantage of reading in draft form the reasons for judgment of Crennan J. I agree that the appeal should be dismissed with costs, for the reasons given by her Honour.

Waller v Hoolahan Torts - Medical negligence - Wrongful life - Agreed for the purposes of separate questions at first instance that respondents negligently failed during in vitro fertilisation (IVF) program and antenatal care to investigate and advise or warn parents in relation to genetic condition of the father where the condition posed a risk to the appellant child - Child conceived with inherited genetic condition - Child suffered serious disabilities as a result of the inherited genetic condition - Whether child can recover damages from the respondents. Duty of care - Medical practitioners and medical service providers - Whether respondents owed the child a duty of care to investigate and advise or warn parents in relation to the risks of the inherited genetic condition, enabling parents to make informed decisions about IVF or termination of pregnancy - Foreseeability of risk to the appellant - Whether the facts of the case fall within the established duty of care which medical practitioners owe to foetuses to take reasonable care to prevent pre-natal injury - Vulnerability of the appellant - Need to distinguish duty of care from other elements of negligence - Relevance of duty of care owed to the appellant's mother - Whether duty of care owed to the appellant included duty to terminate life - Whether such a duty admissible in law. Damage - Whether a life with disabilities is actionable damage - Whether it is possible to prove damage by comparing a life with disabilities with non-existence. Damages - Assessment - Measure of damages - Compensatory principle -Non-existence as a comparator - Comparison to child born without genetic condition and consequent disabilities - Whether claim for special damages quantifiable - Whether only special damages may be awarded. Public policy - Principle of the sanctity of human life - Whether life is capable of constituting a legally cognisable injury - Effect on disabled people of awarding damages for wrongful life - Whether it would be appropriate to award damages in respect of minor defects in circumstances where a child's mother would have terminated her pregnancy had she been warned of the risk of such defects - Whether disabled child could sue his or her mother for failing to terminate her pregnancy - Whether awarding damages for wrongful life would undermine familial relationships. Statutes - Whether common law can be developed by analogy with legislation - Whether it is possible to develop the common law by analogy in circumstances where there is no relevant legislative provision in any Australian jurisdiction - Relevance of legislature's inaction. Words and phrases - "wrongful life", "wrongful birth". GLEESON CJ. I have had the advantage of reading in draft form the reasons for judgment of Crennan J. I agree that both appeals should be dismissed with costs, for the reasons given by her Honour.

I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd Trade practices - Misleading or deceptive conduct - Enforcement and remedies - Loan transaction - Mortgage over land - Misleading and deceptive valuation of land by valuer - Failure by lender to make reasonable inquiries as to borrower's capacity to meet interest payments - Default on loan by borrower - Proceeds of sale by mortgagee insufficient to meet borrower's obligation - Liability of valuer for loss and damage suffered by lender - Causal connection between contravention of Trade Practices Act 1974 (Cth) and loss and damage suffered - Whether damages awarded under s 82 of the Trade Practices Act 1974 (Cth) to be reduced for lender's failure to take reasonable care to protect its own interests. Trade Practices Act 1974 (Cth), ss 52, 82, 87.

Attorney-General (Q) v Australian Industrial Relations Commission Minister for Employment and Workplace Relations v Australian Industrial Relations Commission Industrial law (Cth) - Australian Industrial Relations Commission - Statutory amendment obliging Commission to cease dealing with industrial dispute if satisfied that a State award or employment agreement governs the wages and conditions of employment in issue, unless satisfied that ceasing would not be in the public interest - Effect on pending proceedings. Statutes - Construction - Presumption that repeal or partial repeal does not affect any right acquired or accrued under earlier Act unless contrary intention appears - Whether s 8(c) of the Acts Interpretation Act 1901 (Cth) preserved respondent unions' rights to have pending industrial disputes arbitrated by Australian Industrial Relations Commission without regard to s 111AAA of the Workplace Relations Act 1996 (Cth) - Whether respondent unions had acquired or accrued a relevant "right" - Whether presumption displaced by contrary intention in repealing statute. Words and phrases - "Accrued right". Acts Interpretation Act 1901 (Cth), s 8. Industrial Relations Act 1988 (Cth), ss 104(1), 111(1)(g). Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sched 5. Workplace Relations Act 1996 (Cth), s 111

HIGH COURT OF AUSTRALIA GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ COMMISSIONER OF STATE REVENUE APPELLANT AND PIONEER CONCRETE (VIC) PTY LTD RESPONDENT Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43 4 October 2002 M13/2002 ORDER 1. Appeal allowed with costs. 2. Set aside orders made by the Court of Appeal of Victoria on 2 May 2001 and, in lieu thereof, order that the appeal to that Court be dismissed with costs. 3. Remit the matter to the Supreme Court of Victoria for consideration of the outstanding issues. On appeal from the Supreme Court of Victoria Representation: C M Maxwell QC with R R Boaden for the appellant (instructed by the Solicitor for the Commissioner of State Revenue) H M Wright QC with S G E McLeish for the respondent (instructed by Cornwall Stodart) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd Taxes and duties - Stamp duty - Stamps Act 1958 (Vic) - Valuation of property - Transfer of estate in fee simple in land - Contract of sale reserved to transferor rights to use land for particular purposes for a certain time - Instrument of transfer transferred estate in fee simple without exceptions or reservations - Relevance of contractual rights to valuation of subject property. Stamps Act 1958 (Vic), ss 17(1), 63. Transfer of Land Act 1958 (Vic).