Cases and authorities

The State of Victoria & Anor v John David Sutton & Anor Property - Vesting of property of unincorporated association in Custodian - Inability of association to dispose of property vested in Custodian. Property - Disposition - Prohibition on disposition without prior written consent of Custodian - Disposition in breach of prohibition "void, at the option of the Custodian" - Whether disposition in breach of prohibition void or voidable. Property - Option to avoid disposition - Manner of exercising option - Period of time in which option to be exercised - Method of communicating exercise of option. Industrial law (Cth) - Registered organisation - Cancellation of registration - Effect upon property of organisation. Words and Phrases - "void" - "option" - "election". Builders Labourers' Federation (Cancellation of Registration) Act 1986 (Cth). Builders Labourers' Federation (Cancellation of Registration Consequential Provisions) Act 1986 (Cth). BLF (De-recognition) Act 1985 (Vic). Workplace Relations Act 1996 (Cth), s 347. Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sched 16.

Pearce v The Queen Criminal law - Double jeopardy - Appellant charged with and convicted of two offences arising out of same facts - Whether plea in bar available - Whether an abuse of process - Whether double punishment. Crimes Act 1900 (NSW), ss 33, 110. Mc

Contract - Intention to create contractual relations - Engagement of a minister of religion - Whether presumption against intention to create contractual relations. Churches and Religious Associations - Appointment and removal of ministers of religion - Discussion of presumption that no intention to create contractual relations. Primary decision-maker was a Magistrate - Appeals - Finding by primary decision-maker - Whether primary decision-maker failed to consider parties' intention to create contractual relations - Appellate review of findings by primary decision-maker. GAUDRON, Mc

HIGH COURT OF AUSTRALIA GLEESON CJ, GAUDRON, McHUGH, KIRBY AND CALLINAN JJ MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT AND DALJIT SINGH RESPONDENT Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7 7 March 2002 A11/2001 ORDER Appeal dismissed with costs. On appeal from the Federal Court of Australia Representation: J Basten QC with S B Lloyd for the appellant (instructed by Australian Government Solicitor) M W Gerkens for the respondent (instructed by Fernandez Canda Gerkens) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Minister for Immigration and Multicultural Affairs v Singh Immigration - Refugees - Exclusion from Convention protection for commission of "serious non-political crime" - Meaning of "serious non-political crime" - Whether murder can ever be a political crime - Proportionality of crime to political purpose - Relevance of revenge motive - Whether political purpose must be dominant, sole or significant purpose. Immigration - Refugees - Exclusion from Convention protection - Commission of offence prior to "admission ... as a refugee" - Meaning of reference to admission as refugee - Whether refugee status must be determined before consideration of exclusion. Judicial review - Jurisdiction - Review for errors of law - Interpretation of "serious non-political crime" in Refugees Convention - Decision about whether murder was a political crime - Whether decision reviewable for error of law. Words and phrases - "serious non-political crime" - "common crimes" - "pure political crimes" - "admission ... as a refugee". Migration Act 1958 (Cth), s 36(2). Convention Relating to the Status of Refugees 1951, as amended by the Protocol Relating to the Status of Refugees 1967, Art 1F(b).

Cameron v The Queen Criminal Law - Sentence - Drug offence - Complaint wrongly particularised prohibited drug - Guilty plea entered as soon as complaint amended - Whether plea entered at first reasonable opportunity Criminal Law - Sentence - Guilty plea as mitigating factor in sentencing - Whether guilty plea as mitigating factor in sentencing discriminatory. Sentencing Act 1995 (WA), ss 7 and 8. Commonwealth Places (Application of Laws) Act 1970 (Cth), ss 3, 4, and 7.

Defamation - Statutes - Interpretation of Supreme Court Act 1970 (NSW) ("Supreme Court Act") - Section 108(3) - Defamation action - Appeal challenging findings of a jury made under s 7A(3) of the Defamation Act 1974 (NSW) ("Defamation Act") on specific issues put to the jury - Powers of an appeal court to direct a verdict for the plaintiff on such issues in the event of a successful appeal. Statutes - Interpretation - "May" - Appeal challenging findings of a jury on specific issues in defamation proceedings - Whether Supreme Court Act, s 108(3) confers a power, with a duty to exercise that power once the relevant entitlement to a verdict on any issue in the proceedings is established as a matter of law. Statutes - Interpretation - Supreme Court Act, s 108(3) - Defamation Act, s 7A - Defamation action - Jury found that there were imputations conveyed but that those imputations were not defamatory - Role of the jury in defamation proceedings - Whether the Court of Appeal must order a new trial where it holds that a jury's answers to issues put to the jury in defamation proceedings are unreasonable. Defamation - Business defamation - Nature of the test for defamation where a plaintiff alleges damage to business reputation - Procedure in jury trials in New South Wales - Application of Defamation Act, s 108(3). Words and phrases - "any cause of action, issue or claim for relief", "may", "direct a verdict and give judgment accordingly", "as a matter of law", "entitled to a verdict", "business defamation". Supreme Court Act 1970 (NSW), ss 75A, 85, 86, 90, 102, 107, 108. Defamation Act 1974 (NSW), ss 7A, 9, 46, 46

Contract - Construction of lease - Determination of rent by lessor - Lease provided that, in determining amount of rent payable, lessor "may have regard to" certain additional costs and expenses - Whether lessor limited to consideration of those factors - Use of surrounding circumstances to assist in interpretation of written contract in case of ambiguity - Both parties public bodies operating under particular legislative regimes - Whether statutory powers of lessor relevant to the meaning of the lease and the exercise of the determination of the amount of rent payable under the lease - Transaction of a non-commercial nature and designed to provide a public facility - Whether covenant of good faith and fair dealing implied in contractual dealings. Precedent - Application of Codelfa Construction Pty Ltd v State Rail Authority of NSW - Status in other Australian courts of subsequent English authority. Construction and interpretation - Contract - Deed of lease - Primary duty to construe language of the lease - Use of surrounding circumstances to assist in interpretation of written contract in case of ambiguity - Both parties public bodies operating under particular legislative regimes - Whether statutory powers of lessor relevant to the construction of the lease - Whether covenant of good faith and fair dealing implied in contractual dealings. Words and phrases - "may have regard to". City of Sydney Act 1988 (NSW). Crown Lands Consolidation Act 1913 (NSW). Public Parks Act 1912 (NSW). Public Trusts Act 1897 (NSW). Domain Leasing Act 1961 (NSW). Royal Botanic Gardens and Domain Trust Act 1980 (NSW). GLEESON CJ, GAUDRON, Mc

Re Minister for Immigration and Multicultural Affairs; Ex parte "A" Immigration - Refugees - Application for protection visa on the ground of refugee status - Fear of persecution - Application to High Court for constitutional writs and other relief - Whether arguable breach of requirements of natural justice by delegate of Minister becomes irrelevant following later merits review by Refugee Review Tribunal - Whether breach of procedural requirements of the Migration Act 1958 (Cth) in failure of Tribunal to refer to allegation of torture - Whether breach of requirements of natural justice in failure to disclose country information to applicant concerning country of nationality - Whether Tribunal erred in treatment of applicant's protest activities in Australia post-arrival - Whether reasonably arguable case for grant of order nisi. Immigration - Refugees - Application in original jurisdiction of High Court - Earlier decisions by the Minister's delegate, Refugee Review Tribunal and Federal Court - Whether applicant out of time for constitutional writs in application in original jurisdiction of High Court - Whether delay in commencement of High Court proceedings pending conclusion of proceedings below was explained and reasonable - Whether it was reasonably arguable that time default would be cured in circumstances of the applicant's prompt application to the High Court following final decision of Full Federal Court. Immigration - Refugees - Constitutional writs - Whether available against Minister and Tribunal to prohibit further proceedings upon a decision alleged to be flawed by jurisdictional error. High Court - Practice - Original jurisdiction - Application for constitutional writs of prohibition and mandamus and other relief - Applicant commences proceedings in High Court immediately following unsuccessful applications before delegate, Refugee Review Tribunal and Federal Court - Whether arguable case for waiver of time default - Whether applicant obliged to commence proceedings in High Court immediately to avoid being out of time. Constitution, s 75(v). Judiciary Act 1903 (Cth), s 33(2). Migration Act 1958 (Cth), ss 57, 91R(3), 424A. High Court Rules, O 55 r 17, O 55 r 30.

Insurance – Contract of insurance – Employer indemnified by insurer against liability arising from workplace injuries – Condition of policy required employer to give notice to insurer of personal injury suffered by employee as soon as practicable – Employer failed to inform insurer of employee's injury as soon as practicable – Insurer's liability to be reduced under Insurance Contracts Act 1984 (Cth) by amount that fairly represents extent to which insurer's interests prejudiced. Insurance – Employer indemnified by insurer against liability arising both at common law and under workers' compensation legislation – Employer sought indemnity against its liability to employee at common law – Whether insurance contract entered into for the purposes of a law that related to workers' compensation and therefore exempt from operation of Insurance Contracts Act 1984 (Cth). Words and phrases – "extent to which the insurer's interests were prejudiced" – "for the purposes of". Insurance Contracts Act 1984 (Cth), ss 9, 54. Workers' Compensation and Rehabilitation Act 1981 (WA), ss 5, 18, 160. GLEESON CJ, GAUDRON, Mc

Contract – Construction and interpretation of contracts – Long-term lease – Standard form contract – Where parties entered lease because unable to effect sale and purchase of land due to planning restrictions – Where standard form lease amended by parties – Where clause pertaining to payment of rates, taxes, assessments and other outgoings ambiguous – Whether parties intended lease to resemble sale and purchase of land – Whether lessee liable to pay all rates, taxes, assessments and other outgoings or only liable to pay those payable in lessee's capacity as tenant. Words and phrases – "commercial purpose and objects", "commercial sense", "deletions from standard form contract", "in respect of the said premises", "payable by the tenant", "reasonable businessperson".

Criminal law - Verdicts - Statutory alternative verdicts - Appellant convicted by jury of one count of incest - Because of verdict on count of incest jury was not required to consider statutory alternative verdict of indecent act with a child aged under 16 - Court of Appeal quashed the conviction for insufficient evidence and ordered a new trial without specifying what charge or charges were to be tried - Whether the Court of Appeal should have entered a verdict of acquittal on the count of incest. Criminal law - Verdicts - Appellate jurisdiction - Whether the Court of Appeal's jurisdiction pursuant to s 568(2) of the Crimes Act 1958 (Vic) either to enter a verdict of acquittal or order a new trial should be read with the provisions of ss 421 and 425 regulating alternative verdicts. Criminal law - Verdicts - Whether entry of verdict of acquittal and order for new trial on lesser alternative count engage principles of estoppel or preclusion. Criminal law - Trials - Evidence - Whether, following an acquittal and order for a new trial on a lesser alternative count, the jury in the new trial should be informed about that earlier acquittal. Crimes Act 1958 (Vic), ss 421, 425 and 568(2).

Intellectual property - Copyright - Circumvention devices - Circumvention of a technological protection measure - Definition of "technological protection measure" in s 10(1) of the Copyright Act 1968 (Cth) ("the Act") - Respondents produced and sold computer games on CD-ROMs for use with PlayStation consoles - Access codes on the CD-ROMs could not be reproduced by conventional CD recording or copying devices - Games could only be played if access codes were read by the boot ROM device within a PlayStation console - Appellant sold and installed "mod chips" into PlayStation consoles which allowed unauthorised copies of games to be played - Whether appellant had knowingly sold or distributed a circumvention device which was capable of circumventing, or facilitating the circumvention of, a technological protection measure - Whether access codes and boot ROM were technological protection measures - Whether access codes and boot ROM prevented or inhibited the infringement of copyright by preventing access to unauthorised copies of games. Intellectual property - Copyright - Circumvention devices - Literary works - Computer programs - Reproduction in a material form - Definition of "material form" in s 10(1) of the Act - Parts of program code reproduced in the random access memory ("RAM") of a PlayStation console as game is being played - Whether access codes and boot ROM prevented or inhibited the infringement of copyright in a literary work by preventing a substantial part of a computer program from being reproduced in RAM - Whether RAM a "material form" for the purposes of the Act. Intellectual property - Copyright - Circumvention devices - Subject-matter - Cinematograph films - Part of the aggregate of visual images contained in program code copied in the RAM of a PlayStation console as game is being played - Whether access codes and boot ROM prevented or inhibited the infringement of copyright in a cinematograph film by preventing a copy of the film being made in RAM - Whether a substantial part of a cinematograph film is embodied in RAM as game is being played. Statutes - Statutory construction - Approach where provision is ambiguous - Approach where provision is the product of legislative debate over evolving technology and compromise - Use of extrinsic materials - Relevance of legislative history - Relevance of policy considerations - Preference for interpretation which upholds fundamental rights. Words and phrases - "circumvention device", "technological protection measure", "prevent or inhibit", "material form", "cinematograph film", "substantial part". Copyright Act 1968 (Cth), ss 10(1), 116A. Copyright Amendment (Digital Agenda) Act 2000 (Cth).

Cheung v The Queen Criminal law - Sentencing - Principles and practice - Division of functions between judge and jury - Suggested alternative factual bases for verdict and sentence - Appellant convicted of being knowingly concerned in the importation of a commercial quantity of heroin - Duty of sentencing judge to determine extent of appellant's culpability consistently with verdict of jury - Whether sentencing judge obliged to fix sentence on view of evidence most favourable to appellant - Relevance of manner in which charges framed in indictment - Relevance of right to trial by jury contained in s 80 of the Constitution. Constitutional law (Cth) - Jury trial of indictable federal offence - Determination of factual basis for jury verdict of guilty - Whether s 80 of the Constitution relevant to the framing of charges in the indictment where alternative factual bases for the verdict exist - Whether right to trial by jury relevant to resolution of applicable basis of verdict for the purpose of sentencing the prisoner. Constitution, s 80. Customs Act 1901 (Cth), s 233

Immigration - Refugees - The appellants were refused a visa under s 36(2) of the Migration Act 1958 (Cth) ("the Act") - The appellants gave a statutory declaration to the Refugee Review Tribunal ("the Tribunal") - The Tribunal affirmed the decision not to grant a visa partly on the basis of discrepancies between the statutory declaration and the appellants' oral evidence - Whether relief was available to the appellants. Immigration - Refugees - s 424A of the Act, read with s 441A, requires that an applicant be given written notice of particulars of any information that would be a reason or a part of the reason for affirming a decision - Whether s 424A applied to the appellants' statutory declaration - Temporal scope of s 424A - Whether the Tribunal breached s 424A - Whether the Tribunal committed jurisdictional error - Meaning of "information" - Whether "information" included discrepancies or inadequacies in previously submitted evidence - Meaning of "reason, or a part of the reason". Administrative law - Constitutional writs - Certiorari and mandamus - Impact of discretionary considerations governing availability of relief - Whether relief should be denied on discretionary grounds for lack of a Convention nexus. Words and Phrases - "information", "reason, or a part of the reason". Migration Act 1958 (Cth), ss 36(1), 422B, 424A, 441

Torts - Joint tortfeasors - Satisfaction - Settlement with one tortfeasor - Entry of consent judgment against one tortfeasor - Settlement figure less than total damages claimed by the respondents - Whether settlement prevented respondents continuing claim against other tortfeasor - Whether cause of action against joint tortfeasors is one and indivisible - Whether settlement was paid and received in "full satisfaction" of respondents' loss. Practice and procedure - Rule against "double satisfaction" - Settlement amount in first action less than amount otherwise recoverable in second action - Respondents conceded that credit is to be given for the amount recovered upon settlement of the first action - Whether second action in breach of rule against "double satisfaction" - Nature of the rule against "double satisfaction". Words and phrases - "full satisfaction" - "double satisfaction" - "action" - "cause of action". Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1). Law Reform (Married Women and Tortfeasors) Act 1935 (UK), 6(1).

Grey v The Queen Criminal law - Evidence - Crown witness with prior convictions - Accused unaware that Crown witness had received favourable treatment by the Crown in consideration of testimony against the accused - Whether absence of disclosure to the accused of the favourable treatment of the Crown witness caused the trial of the accused to miscarry - Substantial miscarriage of justice. Evidence Act 1995 (NSW), s 165(1)(d), (2). Criminal Appeal Act 1912 (NSW), s 6(1).

Wong v The Queen Leung v The Queen Criminal law - Sentencing - Federal offences - Guideline judgments - Appellants convicted of being knowingly concerned in the importation of narcotics - Whether Court of Criminal Appeal erred in failing to give adequate reasons for increasing sentences imposed by trial judge - Whether Court of Criminal Appeal erred in disturbing sentences without identifying a relevant error - Whether Court of Criminal Appeal erred in failing to take adequately into account the nature of a prosecution appeal - Whether Court of Criminal Appeal erred in publishing "quantitative guideline" - Whether such guidelines inconsistent with applicable legislation - Matters to which court to have regard when passing sentence - Significance of weight of narcotics - Whether "two-stage" approach to sentencing open - Whether publication of prescriptive table of sentences within jurisdiction or power of Court of Criminal Appeal when exercising federal jurisdiction. Constitutional law - Federal legislation providing for sentencing of convicted federal offenders - State court of criminal appeal publishes "quantitative guidelines" - Whether "promulgation" of guidelines incompatible with the exercise of federal jurisdiction by State court - Whether incompatible with decision of a "matter" within Ch III of the Constitution - Whether inconsistent with terms of federal legislation applicable to the case. Constitution, s 77(iii). Crimes Act 1914 (Cth), s 16A. Customs Act 1901 (Cth), s 235(2)(c)(ii). Judiciary Act 1903 (Cth), s 68. Criminal Appeal Act 1912 (NSW), ss 5D and 12.

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd Equity - Equitable remedies - Interlocutory injunction - Principles to be applied - Need for plaintiff to show a serious question to be tried - Defence that plaintiff has no equity - Nature of discretion to grant interlocutory relief - Relevance of implied freedom of political communication under the Constitution. Practice and procedure - Interlocutory injunctions - Power of Supreme Court to grant interlocutory injunction - Whether s 11(12) of Supreme Court Civil Procedure Act 1932 (Tas) alters basis on which the Supreme Court has power to grant an interlocutory injunction - Purpose for which power exists to grant an interlocutory injunction - Meaning of "just and convenient". Torts - Privacy - Whether Australian law recognises a tort of invasion of privacy - Whether right to privacy attaches to corporations - Relevance of implied freedom of political communication under the Constitution to the tort of privacy. Constitutional law (Cth) - Interpretation of Constitution - Implications from Constitution - Implied freedom of communication concerning government and political matters - Whether law providing for interlocutory injunction against broadcaster infringes implied freedom - Whether injunction if granted would infringe freedom - Relevance of implied freedom to grant of injunction - Whether properly or at all taken into account. Trespass to land - Trespasser illegally made clandestine film of activities and gave it to a broadcaster - Whether owner has right to restrain publication of film by broadcaster. Words and phrases - "unconscionability" - "just and convenient" - "interlocutory injunction". Supreme Court Civil Procedure Act 1932 (Tas), ss 10, 11.

Migration - Application for Spouse visa - Applicant claims de facto married relationship with Australian citizen involving mutual commitment to a shared life to the exclusion of all others - Delegate of Minister and Immigration Review Tribunal refuse visa - Application to High Court for constitutional relief and certiorari - Australian citizen already married undergoes second Islamic marriage to applicant - Whether second marriage a "marriage" within Migration Regulations - Whether Tribunal arguably erred in the exercise of its jurisdiction to conduct review - Whether jurisdictional error arguably established by breach of rules of natural justice - Whether bias of Tribunal member arguably demonstrated. Constitutional law - Constitutional writ of prohibition and writ of certiorari to perfect its remedies - Requirement of jurisdictional error - Whether jurisdictional error established as reasonably arguable - Need to observe distinction between jurisdictional error and appeal on merits - Unavailability of constitutional writs to correct errors within jurisdiction - Whether reasonably arguable case demonstrated for grant of order nisi. Words and phrases - "marriage"; "to the exclusion of all others". Migration Act 1958 (Cth). Migration Regulations, reg 1.15

McGarry v The Queen Criminal law - Sentencing - Indefinite imprisonment - Conditions for making order of indefinite imprisonment - Sufficiency of material to support conclusion that an order for indefinite imprisonment could be imposed - Whether High Court should substitute order or remit matter for re-sentencing in the Supreme Court. Words and phrases - "a danger to society, or a part of it". Sentencing Act 1995 (WA), ss 98, 99, 100, 101. Sentence Administration Act 1995 (WA), ss 14, 20, 22, 115. GLEESON CJ, GAUDRON, Mc

Criminal law - Practice and procedure - Bail - Whether High Court has power to grant bail - In what circumstances High Court will grant bail - What constitutes "special circumstances" - Whether special circumstances established where applicant subject to extradition determination, in custody for over 30 months and subject to extremely harsh conditions in detention - Whether risk of flight outweighs special circumstances. Extradition - Bail - Whether High Court has power to grant bail pursuant to the Extradition Act 1988 (Cth) or pursuant to Constitution - What constitutes "special circumstances" for the purposes of granting bail in extradition proceedings - Rationale for refusing bail in extradition cases. High Court of Australia - Practice and procedure - Bail - Whether High Court has power to grant bail pursuant to appellate or original jurisdiction - Proper form of order for admitting prisoner to bail - In what circumstances High Court will grant bail - Where applicant for bail subject to extradition determination and application for special leave to appeal still pending - What constitutes "special circumstances" - Whether special circumstances established by applicant in this extradition proceeding - Whether risk of flight outweighs special circumstances. High Court of Australia - Significance of referring hearing of application for special leave to appeal to Full Court of High Court. Words and phrases - "special circumstances". Extradition Act 1988 (Cth), ss 15, 19, 21. GLEESON CJ, Mc

Criminal law - Practice and procedure - Bail - Whether High Court has power to grant bail - In what circumstances High Court will grant bail - What constitutes "special circumstances" - Whether special circumstances established where applicant subject to extradition determination, in custody for over 30 months and subject to extremely harsh conditions in detention - Whether risk of flight outweighs special circumstances. Extradition - Bail - Whether High Court has power to grant bail pursuant to the Extradition Act 1988 (Cth) or pursuant to the Constitution - What constitutes "special circumstances" for the purposes of granting bail in extradition proceedings - Rationale for refusing bail in extradition cases. High Court of Australia - Practice and procedure - Bail - Whether High Court has power to grant bail pursuant to appellate or original jurisdiction - Proper form of order for admitting prisoner to bail - In what circumstances High Court will grant bail - Where applicant for bail subject to extradition determination and application for special leave to appeal still pending - What constitutes "special circumstances" - Whether special circumstances established by applicant in this extradition proceeding - Whether risk of flight outweighs special circumstances. High Court of Australia - Significance of referring hearing of application for special leave to appeal to Full Court of High Court. Words and phrases - "special circumstances". Extradition Act 1988 (Cth), ss 15, 19, 21. GLEESON CJ, Mc

(Q) High Court - Practice - Removal of a cause arising under the Constitution - Removal from Supreme Court of a State to the High Court of an application made on behalf of the Attorney-General of a State - Whether remitter of cause so removed to the Supreme Court is permissible having regard to the right of remitter - Whether in the circumstances such remitter should be ordered - High Court unable to hear and determine cause in time for provision of relevant relief - Relevance of desirability of securing reasoned decision of the Supreme Court. Constitutional law (Cth) - Elections - General election for Federal Parliament - Qualifications and disqualification of candidates - State law purports to terminate office of local government councillor who is declared a candidate for election to the Federal Parliament - Whether State law is inconsistent with the Constitution and Commonwealth Electoral Act 1918 (Cth) - Whether matter involves a cause arising under the Constitution - Whether cause must be removed into the High Court on application by State Attorney-General - Whether such removed cause may and should be remitted to Supreme Court. Elections - Candidates' eligibility and disqualification - State law disqualifies from office of local government councillor a declared candidate for election to the Federal Parliament - Whether such disqualification invalid under the Constitution s 109 having regard to express provisions for disqualification under federal law - Whether issue renders cause one arising under the Constitution or involving its interpretation - Whether cause once removed may be remitted to State court - Whether such remitter should be ordered in exceptional circumstances involving delay in resolution of cause by High Court. Words and phrases - "as of course". Constitution, ss 32, 44, 109. Commonwealth Electoral Act 1918 (Cth), ss 162, 163, 164, 176, 327. Judiciary Act 1903 (Cth), ss 40(1), 42(1). Electoral Act 1992 (Q), s 88(3). Local Government Act 1993 (Q), ss 221(f), 224A(b).

Thompson v Connon Torts - Negligence - Duty of care - Appellants suspected of sexually abusing their children - Alleged negligence of respondents in investigating and reporting on allegations - Appellants claimed that they suffered shock, distress, psychiatric injury, and consequential personal and financial loss as a result of the accusations - Whether medical practitioners, social workers and departmental officers involved in investigating and reporting upon allegations of child sexual abuse owe a duty of care to suspects. Torts - Negligence - Duty of care - Proximity - Inapplicability of the Caparo test in Australia. Community Welfare Act 1972 (SA), ss 25, 91, 92, 235a. GLEESON CJ, GAUDRON, Mc

Constitutional law (Cth) - The Parliament - Removal of federal court judge - Initiation of a procedure for removal - Request to President of the Senate to distribute to senators request for consideration of removal of judge of the Family Court of Australia - Full Court of that Court finds federal court judge ought to have declined to further hear case for ostensible bias - President of Senate declined to distribute documents - Whether President answerable to writ under Constitution s 75(v) - Whether President is an "officer of the Commonwealth" - Whether Mandamus should issue to require consideration by senators of request - Privileges and powers of Houses of the Parliament. Words and phrases - "Officer of the Commonwealth" - "proved misbehaviour". Constitution, ss 17, 18, 19, 35, 49, 72(v), 76(ii). Judiciary Act 1903 (Cth), s 30(a). Family Law Rules, O 35 r 14. The Act of Settlement 1700 (12 & 13 Will III c 2).

Accident compensation - Workers compensation - Section 138 of the Accident Compensation Act 1985 (Vic) confers an entitlement to indemnification upon employers or insurers who have paid or are liable to pay compensation - Section 60(1) of the Supreme Court Act 1986 (Vic) provides for damages in the nature of interest in respect of any proceeding for the recovery of debt or damages - Whether a proceeding to establish amount of indemnification under s 138 is a proceeding for the recovery of debt or damages. Words and phrases - "debt or damages". Accident Compensation Act 1985 (Vic), s 138. Supreme Court Act 1986 (Vic), s 60.

Trade Practices - Misleading or deceptive conduct - Real estate transaction - Home unit development - Misleading representation by land agent to developer as to price which could be obtained for residential home units - Incorrect estimate of likely costs of development made by developer - Quantification of damages where misleading or deceptive conduct is but one of a combination of circumstances bringing about the loss ultimately suffered. Damages - Statutory - Trade Practices Act - Measure of damages - Relevance of common law analogies when quantifying damages - Identification of loss or damage required - Causation of loss or damage - Quantification of damage caused "by conduct of" person in breach of s 52. Words and phrases - "by conduct of". Trade Practices Act 1974 (Cth), ss 52, 82(1).

Constitutional law (Cth) - Separation of powers - Judicial power - The Australian Securities and Investments Commission ("ASIC") disqualified the plaintiff from managing corporations pursuant to s 206F of the Corporations Act 2001 (Cth) - Whether the power of disqualification contained in s 206F of the Corporations Act 2001 (Cth) invalidly confers the judicial power of the Commonwealth upon ASIC. Constitutional law (Cth) - Separation of powers - Whether a power of disqualification can validly be conferred concurrently upon a Chapter III court and an administrative body - Relevance of the existence of curial powers of disqualification alongside those conferred upon ASIC - Relevance of chameleon principle - Whether conferral of power upon an administrative body is an impermissible circumvention of Ch III of the Constitution. Constitutional law (Cth) - Judicial power - Meaning of judicial power -Whether the maintenance of professional standards involves the exercise of judicial power - Whether the determination of the "public interest" involves the exercise of judicial power. Words and phrases - "chameleon principle", "disqualification", "functional analysis", "judicial power of the Commonwealth", "public interest". Constitution, Ch III. Corporations Act 2001 (Cth), Pt 2D.6; ss 206F, 1317

Commonwealth of Australia v Cornwell Limitation of actions - Negligence - Meaning of "first accrues" in s 11(1) of the Limitation Act 1985 (ACT) - The respondent was negligently advised in 1965 that he was ineligible for acceptance as a member of the fund established pursuant to the Superannuation Act 1922 (Cth) - The respondent did not institute proceedings against the appellant until 1999 - Whether the respondent's cause of action first accrued upon his retirement in 1994, or at some earlier time - Whether the respondent's cause of action was statute-barred. Limitation of actions - Concealed fraud - Whether a consideration of s 33 of the Limitation Act 1985 (ACT) is required to resolve the respondent's case. Negligence - Cause of action - Whether the respondent's cause of action accrued upon his retirement in 1994, or at some earlier time. Negligence - Damage - Economic loss - Contingent loss - Superannuation entitlements - Statutory contingencies - Whether the respondent suffered damage when his superannuation entitlements accrued upon his retirement in 1994, or at some earlier time. Superannuation - Defined benefits schemes - Statutory contingencies for the accrual of entitlements - Whether the respondent suffered any damage until the statutory contingencies contained in the Superannuation Act 1990 (Cth) were enlivened upon his retirement in 1994. Superannuation - Membership - Transition between fund established pursuant to the Superannuation Act 1922 (Cth) and that established pursuant to the Superannuation Act 1976 (Cth) - Whether the respondent suffered loss in 1987 when he joined the fund established pursuant to the 1976 Act - Whether the respondent suffered loss when the 1976 Act commenced. Words and phrases - "damage", "deliberately concealed", "entitlement", "first accrues". Limitation Act 1985 (ACT), ss 11, 33. Superannuation Act 1922 (Cth), ss 4, 19, 20, 43, 45-48, 51. Superannuation Act 1976 (Cth), ss 3, 11, 45, 55, 56, 58, 63, 64, 66, 80, 183. Superannuation Act 1990 (Cth), Sched Pt 4.

Western Australian Planning Commission v Southregal Pty Ltd Western Australian Planning Commission v Leith Town planning (WA) – Compensation – Where land reserved for public purpose under planning scheme – Where s 173 of Planning and Development Act 2005 (WA) makes provision for landowner to be compensated where land injuriously affected by making or amendment of planning scheme – Where, under s 177, compensation not payable until land first sold after reservation or responsible authority refuses development application or grants application on unacceptable conditions – Where landowners purchased land affected by planning scheme after date of reservation – Where purchasers applied to develop land and were refused – Whether purchasers entitled to compensation. Words and phrases – "compensation", "injurious affection", "planning scheme", "reservation". Metropolitan Region Town Planning Scheme Act 1959 (WA), s 36. Planning and Development Act 2005 (WA), ss 171, 173, 174, 176, 177. Town Planning and Development Act 1928 (WA), ss 11, 12.

Statutes - Interpretation - Meaning and effect of s 175 of Workers' Compensation and Injury Management Act 1981 (WA) - Application to public authority - Section 175(1) deemed a principal who contracts with a contractor to be the employer of a worker employed by the contractor, and made principal jointly and severally liable to pay compensation for which contractor was liable to the worker - Section 175(3) provided that a principal was not liable unless work on which worker was employed at the time of disability was "directly a part or process in the trade or business of the principal" - Pt IV Div 2 contained provisions constraining awards of common law damages in actions for damages against a worker's employer brought independently of the Act - Minister contracted with company to provide security at schools - Appellant was employed as security guard by company - Appellant was injured while pursuing intruder at school - Appellant sued Minister as occupier of premises at which appellant injured - Whether s 175(1) deemed the Minister to be the appellant's employer - Whether work on which appellant was employed at time of injury was "directly a part or process in the trade or business" of Minister - Whether effect of deeming provision was to apply constraints on damages in Pt IV Div 2 to appellant's claim. Practice and procedure - Grant of special leave to appeal - Whether matters of statutory interpretation arose without reconsideration of the law as stated in Hewitt v Benale Pty Ltd [2002] WASCA 163; (2002) 27 WAR 91 - Whether special leave should be revoked - Relevance of common ground between the parties - Relevance of refusal by High Court to permit enlargement of grounds of appeal - Relevance of supervening amendment of the legislation - Relevance of duty to quell the controversy brought to the Court by the parties. Words and phrases - "deemed employer", "directly", "directly a part or process in the trade or business of", "employee", "principal". Workers' Compensation and Injury Management Act 1981 (WA), Pt IV Div 2, ss 6, 175(1), 175(3), 175(7). Interpretation Act 1984 (WA), s 8. Occupiers' Liability Act 1985 (WA), s 5. Workers Compensation for Accidents Act 1900 (NZ), s 15.

Bankruptcy - Transfers to defeat creditors - s 121(1)(a) of the Bankruptcy Act 1966 (Cth) ("the Act") - Transfers of property void against the trustee in bankruptcy if the property would probably have become part of the transferor's estate or would probably have been available to creditors if the property had not been transferred - Where pursuant to s 121(9)(b) of the Act property that did not previously exist is taken to have been transferred for the purposes of s 121 of the Act - Where the bankrupt unilaterally severed a joint tenancy in Torrens title land held between himself and his wife who later died prior to his bankruptcy - Whether s 121(9)(b) of the Act operated so as to take the bankrupt to have transferred property to his wife - Whether that property would probably have become part of the transferor's estate in bankruptcy if the property had not been transferred. Real property - Joint tenancy - Severance - Torrens system land - Unilateral severance of joint tenancy pursuant to s 59 of the Land Title Act 1994 (Q) - Effect of severance upon property of the bankrupt. Statute - Statutory construction - Construction of pars (1)(a) and (9)(b) of s 121 of the Act where drafting reflects inconsistent assumptions - Whether possible to render those sub-sections capable of concomitant operation so as to give effect to the text and policy of the Act. Bankruptcy Act 1966 (Cth), s 121. Land Title Act 1994 (Q), ss 57, 59, 60.

Taxation - Charities - Pay-roll tax exemption - Meaning of "charitable body" - Whether privately-established non-profit organisation is a "charitable body" for purposes of pay-roll tax exemption - Whether organisation precluded from being characterised as "charitable body" because of its relationship with Commonwealth Government - Whether involvement in implementation of government policy precludes organisation from being characterised as "charitable body". Words and phrases - "charitable body". Pay-roll Tax Act 1971 (Vic), s 10(1)(bb).

Criminal law – Criminal liability and capacity – Doli incapax – Where appellant convicted of two counts of sexual intercourse with child under 10 years – Where appellant approximately 11 years and six months at time of offending – Where appellant found to be of very low intelligence – Whether presumption of doli incapax rebutted. Words and phrases – "doli incapax", "knowledge of the moral wrongness of the act", "merely naughty or mischievous", "morally wrong", "seriously wrong". Children (Criminal Proceedings) Act 1987 (NSW), s 5. Crimes Act 1900 (NSW), s 66A(1).

Harbour Radio Pty Limited v Trad Defamation – Defences – Qualified privilege – Contextual truth – Substantial truth – Reply to criticism – Malice – Where appellant made broadcast in response to statements made by respondent – Whether defence of qualified privilege applicable to statements – Whether broadcast sufficiently connected to criticism by respondent – Whether broadcast made bona fide to vindicate reputation of appellant – Whether broadcast actuated by malice – Whether community standard test of "right-thinking" person relevant to substantial or contextual truth defence – Whether audience composed of ordinary decent persons relevant to substantial truth or contextual truth defence. Words and phrases – "contextual truth", "malice", "qualified privilege", "substantial truth". Defamation Act 1974 (NSW), ss 3, 7A, 9, 11, 15, 16.

; Ex parte Taylor Constitutional Law (Cth) - Naturalisation and aliens - Meaning of "aliens" in s 51(xix) - Law empowering cancellation of visa of "non-citizen" - Whether such a law, applied to a British subject who has lived in Australia for over 33 years, is a law with respect to naturalisation and aliens. Constitutional Law (Cth) - External affairs power - Whether s 51 (xxix) supports application of s 501(3) of Migration Act 1958 (Cth) to the prosecutor, a British subject who has lived in Australia for over 33 years. Constitutional Law (Cth) - Meaning of "Minister" in s 64 of the Constitution - Whether Parliamentary Secretary constituted the "Minister" for the purpose of s 64 - Whether Parliamentary Secretary constituted "the Minister personally" for the purpose of s 501(4) of the Migration Act 1958 (Cth). Immigration - Jurisdictional error - Power of Minister to cancel a visa on character grounds under s 501(3) of Migration Act 1958 (Cth) - Prosecutor had been sentenced to a term of imprisonment of 12 months or more and accordingly had a "substantial criminal record" - Substantial criminal record grounds for failure of character test - Prosecutor could not possibly pass the character test - Respondent invited prosecutor to make representations to her to have the decision revoked under s 501C(4) of Migration Act 1958 (Cth) - Only ground for revocation was that prosecutor passed the character test - Whether invitation to make representations evinced misunderstanding of nature of decision - Whether misunderstanding amounted to a constructive failure of jurisdiction. Immigration - Jurisdictional error - Power of Minister to cancel a visa on character grounds under s 501(3) of Migration Act 1958 (Cth) - requirement that decision be in national interest - Meaning of "national interest" - Whether Minister in this case satisfied that decision in national interest. Words and phrases - "aliens" - "non-citizen" - "the Minister" - "subject of the Queen" - "national interest". Constitution, ss 24, 51(xix), 51(xxix), 64, 117. Migration Act 1958 (Cth), s 501. GLEESON CJ. I agree with the reasons given by Gummow and Hayne JJ for the orders that were made in this matter on 7 December 2000. I also agree with the reasoning of their Honours upon the issues as to which, in their view, the prosecutor's arguments should be rejected. I wish to add some comments in relation to two of those issues: first, whether the power given by the Constitution to the Parliament to make laws with respect to naturalization and aliens (s 51(xix)) sustains s 501(3) of the Migration Act 1958 (Cth) ("the Migration Act") in its application to the prosecutor; and secondly, whether the respondent's appointment, pursuant to which she acted under s 501(3) as the Minister, was valid. Naturalization and aliens The gradual process by which a number of British colonies, having joined in a federal union, became an independent nation, was examined by this Court recently in Sue v Hill[1]. In 1901, Australia was part of the British Empire; a status considered vital to its security and prosperity. The people of Australia were British subjects, owing allegiance to a Crown then regarded as one and indivisible. Other British subjects included, not only the people of the United Kingdom, but also those of the other units of the Empire. The concept of citizenship does not appear in the Constitution. It emerged in the Australian Citizenship Act 1948 (Cth). Even then, all citizens in what had become the British Commonwealth had the common status of British subjects. It was not until 1984 that the distinction between Australian citizens and non-citizens became pivotal in the operation of the provisions of the Migration Act concerning the entitlement of persons born outside Australia, of non-Australian parents, to remain here. Writing of the legislation which introduced that change, a senior officer of the Commonwealth Attorney-General's Department, Mr Brazil, said[2]: "At the time of writing - mid 1983 - Australia appears to be at the end of one era and to be beginning another in relation to the legal and conceptual bases by reference to which it deals with matters of nationality and immigration. Australian citizenship was established as late as 1949, and it has been allied with the status of a British subject, and this at a time when no other country of the former British Empire, including Britain itself, continues to use or recognise that status. Early action to correct this anomaly, and the remaining discriminatory provisions that have gone with the recognition of the status of British subject, seems inevitable. Also, important changes are proposed to the Migration Act 1958 that would have the effect of uniting, for the first time in Australian legislation, citizenship with the right of abode." The prosecutor is a non-citizen. But, he says, he came to Australia in 1966, as a British subject; and has lived here ever since. That, it is argued, puts him beyond the reach of the power of Parliament to enact laws with respect to naturalization and aliens, and, specifically, to provide that he may be deprived of a right to remain in Australia, by action taken under s 501(3) of the Migration Act on the basis of his criminal history. As a British subject, who has become absorbed into the Australian community, he maintains that he cannot be treated by the Parliament as an alien, even though the United Kingdom, where he was born, has now become a foreign power[3]. The prosecutor's argument is directly inconsistent with the decision of this Court in Nolan v Minister for Immigration and Ethnic Affairs[4]. The Court held that a person whose situation was not materially different from that of the prosecutor, a non-citizen who was a British subject, was covered by the then corresponding provisions of the Act, and that those provisions satisfied the description of a law with respect to naturalization and aliens. Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ referred to a United States decision of 1843[5] where it was said[6] that, for the purposes of United States law, an alien was "one born out of the United States, who has not since been naturalized under the constitution and laws." They went on to describe that as "an acceptable general definition of the word 'alien' when that word is used with respect to an independent country with its own distinct citizenship."[7] Evidently they did not regard the circumstance that the independent country with its own distinct citizenship retained a monarchical system of government, was formerly a unit of an Empire, and included amongst its residents persons who retained the status of subject but did not acquire citizenship, as altering the case. They said[8]: "The transition from Empire to Commonwealth and the emergence of Australia and other Dominions as independent sovereign nations within the Commonwealth inevitably changed the nature of the relationship between the United Kingdom and its former colonies and rendered obsolete notions of an indivisible Crown ... The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject or a subject of the Queen by reason of his birth in another country could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an 'alien'. It is not that the meaning of the word 'alien' had altered. That word is and always has been appropriate to describe the status, vis-à-vis a former colony which has emerged as an independent nation with its own citizenship, of a non-citizen who is a British subject by reason of his citizenship of a different sovereign State." I am not persuaded that the Court should now reverse the interpretation which it gave the Constitution in 1988, in Nolan. Whilst fully accepting that the Parliament cannot, by some artificial process of definition, ascribe the status of alienage to whomsoever it pleases, I see no sufficient reason to deny to s 501(3) of the Migration Act, in its application to a person in the position of the prosecutor, the character of a law with respect to naturalization and aliens. The prosecutor was born outside Australia; his parents were not Australians; and he has not been naturalized as an Australian[9]. The power conferred by s 51(xix) includes a power to determine legal status[10]. It should be construed with full generality and in a manner that accommodates the changes that have occurred, over a century, in Australia's international standing, and in its relations with the United Kingdom. A conclusion that it is beyond the capacity of the Australian Parliament to respond to those changes in the manner provided for by s 501(3) of the Migration Act is unwarranted. The respondent as Minister The prosecutor challenged the status of the respondent as Minister for the purposes of the exercise by her of the power conferred by s 501(3) of the Migration Act. On 21 October 1998, the Governor-General, acting pursuant to ss 64 and 65 of the Constitution, appointed the Honourable Philip Ruddock, a member of the House of Representatives, and a member of the Federal Executive Council, to hold the office of Minister for Immigration and Multicultural Affairs, and directed that he administer the Department of Immigration and Multicultural Affairs. The validity of such appointment and direction is not in question. On 10 March 2000, the Governor-General signed an instrument, relating to the respondent, described as "Appointment of Parliamentary Secretary". By that instrument, the Governor-General, acting pursuant to ss 64 and 65 of the Constitution, appointed the respondent, who is a Senator and a member of the Executive Council, to administer two Departments, the Department of Foreign Affairs and Trade and the Department of Immigration and Multicultural Affairs. By the instrument, His Excellency also designated the respondent, pursuant to s 4 of the Ministers of State Act 1952 (Cth), as Parliamentary Secretary, and directed her to hold the office of Parliamentary Secretary to the Minister for Foreign Affairs and the office of Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs. This, the prosecutor argues, cannot be done. Why not? If there is a reason, it must be found in the provisions of Ch II of the Constitution, concerning the Executive Government. But those provisions are relatively brief and, as one would expect, are expressed in a form which allows the flexibility that is appropriate to the practical subject of governmental administration, consistent with the basic requirements of responsible government. The relevant sections of the Constitution provide as follows: "61 The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure. The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council. The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth. After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives. Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs." The above provisions contain, or reflect, in broad outline, some of the structural elements of the system of government provided for the body politic that was created in 1901. There was to be a constitutional monarchy. There was to be a separation of legislative, executive and judicial powers. The executive power of the Commonwealth was to be vested in the Queen, and exercisable by her representative, the Governor-General. The Governor-General was to act upon the advice of a Federal Executive Council, chosen by the Governor-General and holding office during his or her pleasure. The Governor-General in Council was empowered to establish departments of State, and to appoint, from among the members of the Federal Executive Council, officers to administer such departments. They were to be the Queen's Ministers of State for the Commonwealth. A Minister of State was to be either a senator or a member of the House of Representatives, and thus answerable in and to Parliament for matters relating to the administration of government. Parliament was empowered to make provision as to the number of Ministers of State at any one time, and also to prescribe the offices such Ministers should hold. In the absence of such parliamentary prescription it was to be for the Governor-General to direct which offices should be held by Ministers. Parliament, however, was to control the size of the Ministry. For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet. The concept of administration of departments of State, appearing in s 64, is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory. The prosecutor contends that, consistently with the above provisions, it was not open to the Governor-General, having previously appointed Mr Ruddock to administer the Department of Immigration and Multicultural Affairs, then to appoint the respondent to administer the same Department, as Parliamentary Secretary to the Minister. This contention fails. There is nothing inconsistent with s 64 in the appointment of two persons to administer a Department. The practice of appointing Ministers, and Assistant Ministers, is well established, here and in the United Kingdom[11]. The concept of administration does not require that there be only one person who administers, and the concept of responsible government does not require that there be only one person answerable to Parliament for the administration of a Department. Under the appointments made by the Governor-General, it is for the Minister and the Parliamentary Secretary to make their own arrangements as to the method by which the Department will be administered. It is for Parliament to determine the procedures by which those two persons will answer for the conduct of such administration. To repeat what was said in Egan v Willis[12], responsible government is a concept based upon a combination of law, convention, and political practice. The characteristics of responsible government are not immutable. They are certainly capable of accommodating the arrangements made by the Governor-General in the present case. The Ministers of State Act 1952 (Cth), as amended by the Ministers of State and Other Legislation Amendment Act 2000 (Cth), provides that the number of Ministers of State must not exceed, in the case of those designated upon appointment as Parliamentary Secretary, 12, and in the case of those not so designated, 30. This is an exercise of the power conferred by s 65 and also by s 51(xxxvi) of the Constitution. The respondent is a Minister of State, designated upon appointment as a Parliamentary Secretary. By virtue of s 19A of the Acts Interpretation Act 1901 (Cth) she had the powers conferred upon the Minister by s 501(3) of the Migration Act. The challenge to the respondent's status as Minister must be rejected.

Smith v The Queen Criminal law - Evidence - Relevance - Identification - Evidence of recognition by police officers of the accused in photographs from bank security cameras - Police officers in no better position than jury to compare appearance of accused with photographs - Evidence Act 1995 (NSW), s 55 - Whether evidence could rationally affect the assessment by jury of probability of the existence of a fact in issue - Whether admissible as opinion evidence. Evidence - Relevance - Opinion or fact evidence - Evidence Act 1995 (NSW), s 55 - Evidence of recognition by police officers of accused in photographs from bank security cameras - Whether relevant - If relevant whether excluded as opinion evidence. Evidence Act 1995 (NSW), ss 55, 76.

The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue Courts and judges - Jurisdiction - Court of Appeal of Victoria - Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal under s 148(1) of Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Application refused by single judge of Trial Division of Supreme Court -Whether Court of Appeal has jurisdiction to hear appeal from refusal of application - Supreme Court Act 1986 (Vic), s 17(2) - Unless otherwise expressly provided an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a judge - Whether s 148(1) of Victorian Civil and Administrative Tribunal Act 1998 (Vic) expressly provides otherwise. Statutes - Construction - State legislation governing jurisdiction of State appellate court - Whether appeal lies to Court of Appeal from determination of a single judge - Considerations relevant to construction of legislation - Relevance of constitutional context - Relevance of conferral of jurisdiction on a superior court - Relevance of apparent purpose of supposed limitation on jurisdiction - Relevance of judicial review of administrative decisions - Analysis of legislation. Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(1). Supreme Court Act 1986 (Vic), s 17(2). Rabel v Eastern Energy Ltd [1999] 3 VR 45, overruled.

British American Tobacco Australasia Limited v The Commonwealth Constitutional law (Cth) – Legislative power – Section 51(xxxi) – Acquisition of property on just terms – Plaintiffs hold registered and unregistered trade marks and other intellectual property rights in relation to tobacco product packaging – Tobacco Plain Packaging Act 2011 (Cth) regulates appearance of tobacco product packaging and use of trade marks on such packaging – Whether plaintiffs' intellectual property rights, goodwill and rights to determine appearance of tobacco products constitute "property" for purposes of s 51(xxxi) – Whether Act effects an acquisition of plaintiffs' property otherwise than on just terms. Words and phrases – "acquisition of property", "intellectual property", "just terms", "trade marks". Constitution, s 51(xxxi). Tobacco Plain Packaging Act 2011 (Cth), ss 15, 18-27, 30-48. Competition and Consumer (Tobacco) Information Standard 2011 (Cth), ss 1.5, 3.1, 4.1, 9.13, 9.19-19.20. Tobacco Plain Packaging Regulations 2011 (Cth), Divs 2.1-2.4, 3.1.

Procedure – Costs. FRENCH CJ, GUMMOW, HAYNE AND CRENNAN JJ. Order 3 of the order of the Court made on 7 September 2012 provided that in the absence of agreement any question of the costs of the appeal be dealt with on the papers as indicated in the reasons for judgment. Written submissions have been received and the matter has been considered on the papers. The appellant seeks orders against both the respondents and the intervener ("the Minister"). The proposed orders would require the respondents pay 85 per cent of the appellant's costs and the Minister to bear the balance. But in accordance with established practice in this Court respecting interveners, no order should be made against the Minister. If no such order be made, the appellant seeks an order for all of its costs against the respondents. The respondents accept that the provision with respect to certain costs which is made by s 570 of the Fair Work Act 2009 (Cth) does not apply to the appeal to this Court. The respondents, however, submit that the Court should exercise its power with respect to those costs by making no order as to costs. They point to the absence in the Draft Notice of Appeal and the Notice of Appeal of any order seeking costs and to the late emergence of the point shortly before delivery of judgment on 7 September 2012. However, those circumstances are insufficient to displace the prima facie entitlement of the successful appellant to the costs order it seeks against the respondents. An order should be made that the respondents pay the costs of the appellant. HEYDON J. The appellant seeks certain costs orders in relation to the appeal only (not the application for special leave to appeal). One order is that the respondents pay 85 per cent of its costs. The other order is that an intervener, whose legal representatives variously described him as the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, and the Minister for Employment and Workplace Relations, pay 15 per cent of its costs. Alternatively, if no costs order is made against the Minister, the appellant seeks an order that the respondents pay 100 per cent of its costs. The appellant's desire for favourable costs orders was belatedly expressed. The appellant did not raise it before or at the hearing on 29 March 2012. Its claim for costs was first raised in letters to the solicitor for the first respondent and the solicitor for the Minister on 17 July 2012. Its claim was pressed in three further letters sent before judgment was delivered on 7 September 2012. The solicitor for the Minister sent courteous acknowledgments of them and dealt with their contents. The respondents did not. On 7 September 2012, this Court ordered the parties to file written submissions about costs. Since then the parties have pursued the question in written submissions. The solicitor for the Minister has indicated his position by correspondence both before and after 7 September 2012. The respondents relied on the appellant's failure to indicate that it was seeking costs when it filed the special leave application. In particular, they relied on the appellant's positive assertion when seeking special leave that it sought no order as to costs. They submitted that the "appellant should not be permitted to resile from its position." Otherwise, they said, "appellants would be encouraged to waive any right to costs when seeking special leave to appeal and then make an application for costs at the time of judgment." The respondents also suggested that the appellant's conduct was not "a mere oversight" but "a deliberate forensic choice". The respondents pointed to no evidence supporting that allegation. At the start of the oral argument a member of the Court pointed out one relevant circumstance undermining it. The appeal did not arise under the Fair Work Act 2009 (Cth), but under s 73 of the Constitution, consequent upon a grant of special leave under the Judiciary Act 1903 (Cth). It may be inferred from that and other circumstances that the appellant acted as it did because its legal advisers had in good faith initially formed the erroneous view that s 570 of the Fair Work Act applied, but later abandoned it. The respondents now concede that s 570 does not apply. The respondents did not identify any prejudice occasioned to them from the appellant's change in position. The respondents have not suggested that their conduct in vigorously opposing the appeal would have been different in any way had they been told earlier that they might have to pay the costs if they lost. The respondents' suggestion that the appellant's stance on costs was a forensic device to obtain special leave is baseless. The premise of that suggestion – that a device of that kind could ever increase the chance that special leave would be granted against a body like the second respondent – is equally baseless. The second respondent is the Australian Education Union, which, it may be inferred, stands behind the first respondent, one of its officials. It is not a penniless natural person who will have only one curial encounter in his or her lifetime. The respondents' position is typical of the mindless and rancorous technicality which characterises litigation about industrial law. It is entirely without merit. That is particularly so in view of the extraordinary weakness of the respondents' substantive case on the appeal. To the extent that the Minister shared the respondents' approach in relying on the appellant's failure to seek a costs order in its Notice of Appeal, those comments, with respect, apply equally to him. The Minister, however, went beyond the respondents' approach. In addition, he relied on (a) the proposition that his intervention did not increase the appellant's costs to any material extent and (b) the proposition that there are no "special circumstances" justifying a costs order against him. Proposition (a) is not correct. The 15 per cent figure proposed by the appellant is a reasonable estimate of the impact which the Minister's intervention had on the costs the appellant incurred. The Minister's written submissions were lengthy. His oral submissions consumed a not insignificant amount of time. As to proposition (b), the circumstances were exceptional. That is because the Minister's stance before and during the oral hearing was not that of an intervener, but that of a partisan. For example, some of the Minister's oral submissions were directed to factual material. This is hardly the province of an intervener. The respondents were represented by able and experienced counsel who could and did put their clients' case as forcefully as possible. The arguments for the Minister did not go beyond the respondents' case. They were works of supererogation. Would-be interveners who wish to behave like parties should not intervene, or should seek to be joined as parties if they satisfy the rules for joinder of parties, or should suffer the same fate as the losing parties in respect of costs if they back the losing party's cause. However, though the Minister has indicated his general position in correspondence, the Court's orders on 7 September 2012 did not permit the Minister to file written submissions regarding costs. Though the Minister has requested the opportunity to file written submissions, it has not been afforded. For that reason, it would be unjust to order that the Minister pay the appellant's costs. But it would also be unjust to order that the respondents pay only 85 per cent of those costs. The consequence which flows from the conclusion that the Minister is not to pay any part of the appellant's costs is not that the appellant should bear the burden of the Minister's intervention, but that the respondents should do so. It was, after all, the respondents who took the forensic initiative by seeking to overturn, and overturning, an impeccable judgment by the trial judge, which it took an appeal in this Court to restore. The ordinary practice of this Court when intervention takes place is not to order that the loser pay the winner's costs less those attributable to the intervention, but to order that the loser pay the whole of the winner's costs. The respondents should pay 100 per cent of the appellant's costs of the appeal.

Commissioner of Taxation v Qantas Airways Limited Goods and Services Tax – Taxable supply – Supply – Consideration – Overbooking – Attribution of tax period – Airfares that were non-refundable or refundable but unclaimed – Customer cancels or fails to take purchased flight –Promise by airline to use best endeavours to carry passengers and baggage – Whether a taxable supply under A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 9-5 – Whether airline liable to remit to Commissioner GST on non-refundable or unclaimed refundable fares. Words and phrases – "a supply for consideration", "consideration", "taxable supply". A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 7-1, 9-5, 9-10, 9-15, 29-5(1).

Negligence - Standard of care of motorist - Vehicle struck infant who darted on to road - Vehicle travelling at 10 to 15 kilometres per hour under the speed limit - Whether Court of Appeal was entitled to find that the motorist was travelling at excessive speed in the circumstances.

Criminal Law - Confiscation of property - Freezing order - Where Director of Public Prosecutions ("DPP") may apply ex parte for a freezing order pursuant to s 41 of the Criminal Property Confiscation Act 2000 (WA) ("the Act") - Where Court "may" make freezing orders pursuant to s 43 of the Act - Where no express statutory restrictions imposed upon the permissive power to grant freezing orders under s 43 of the Act - Whether relevant that proceedings under the Act are "civil proceedings" by reason of s 102 of the Act - Whether DPP is able to give an undertaking as to damages - Whether the limitation of liability provision in s 137 of the Act would render futile the provision of an undertaking as to damages by the DPP - Whether Court has power to require the DPP to provide an undertaking as to damages when exercising the statutory power under s 43 of the Act to make a freezing order. Criminal Law - Confiscation of property - Freezing order - Variation of freezing order - Where power to vary freezing orders derived by implication from s 45 of the Act and s 48 of the Interpretation Act 1984 (WA) - Where legal expenses not referred to in s 45 of the Act which provides that the Court may provide for meeting "reasonable living and business expenses" in a freezing order - Whether Court has power to vary a freezing order to allow for the payment of reasonable legal costs. Courts - Jurisdiction of courts - Relationship between general law powers of court and jurisdiction conferred by the statute - Where s 43 of the Act expressed in permissive terms without express statutory restrictions - Whether equitable principles applicable to granting discretionary remedies at general law may be imported into exercise of jurisdiction under s 43 of the Act. Statute - Statutory construction - Whether appropriate in legislation to draw negative implications from prior legislation on the same subject matter - Whether appropriate in construing statutory provisions to draw negative implications from other provisions in the Act - Whether s 137 of the Act limits the power conferred by s 43 of the Act to make freezing orders - Whether the express words of s 45 of the Act limit the power to vary freezing orders. Words and phrases - "freezing order", "undertaking as to damages". Crimes (Confiscation of Profits) Act 1988 (WA) (repealed), s 20(11). Criminal Property Confiscation Act 2000 (WA), Pt 2, Pt 3 Div 2, Pt 4 Div 3, ss 4, 5, 41, 42, 43, 45, 101, 102, 137, 141, 142. Crown Suits Act 1947 (WA), s 5. Director of Public Prosecutions Act 1991 (WA), s 10, s 16, s 20. Interpretation Act 1984 (WA), s 48. Supreme Court Act 1935 (WA). Rules of the Supreme Court (WA), O 52 r 9.

Roadshow Films Pty Ltd v iiNet Limited Intellectual property – Copyright – Infringement – Authorisation – Appellants owners and exclusive licensees of copyright in commercially released films and television programs ("appellants' films") – Respondent internet service provider supplied internet services under agreement requiring that services not be used to infringe others' rights or for illegal purposes – Users of respondent's internet services infringed copyright in appellants' films by making appellants' films available online using BitTorrent peer-to-peer file sharing system – Notices served on respondent alleging copyright infringement by users of respondent's internet services – Respondent took no action in response to notices – Whether respondent authorised infringement of copyright in appellants' films by users of respondent's internet services. Words and phrases – "authorise". Copyright Act 1968 (Cth), ss 86(c), 101(1), 101(1A).

Abuse of process – Criminal proceedings – Appellant was citizen of Australia suspected of child sex offences against Australian law committed overseas – Appellant deported from Solomon Islands to Australia by Solomon Islands Government contrary to Solomon Islands law – Australian Government representatives in Solomon Islands aware, and informed superiors in Canberra, of illegality – Australian Government issued travel document for appellant and visas to Solomon Islands officials, which facilitated deportation – Appellant charged and prosecuted on arrival in Australia – Whether circumstances of appellant's removal from Solomon Islands required permanent stay of his prosecution. Abuse of process – Criminal proceedings – Complainant and certain family members made statements about appellant's conduct to Australian Federal Police ("AFP") – Complainant and family later refused to participate in prosecution as witnesses unless given "financial protection" – AFP made significant payments to complainant and family – Payments exceeded AFP guidelines but not unlawful – Whether payments to witnesses required permanent stay of appellant's prosecution. Private international law – Act of State – Act of foreign State – Appellant prosecuted in Australia for offences against Australian law committed overseas – Appellant asserted illegality of Solomon Islands Government's actions under Solomon Islands law in application for permanent stay of prosecution – Whether Australian court can examine, as preliminary to ultimate decision under Australian law, legality of foreign government's actions under foreign law. Words and phrases – "abuse of process", "act of foreign State", "act of State", "deportation", "disguised extradition", "foreign law", "payment to witness", "preliminary". Australian Passports Act 2005 (Cth), s 9. Financial Management and Accountability Act 1997 (Cth), s 44. Deportation Act (Solomon Islands) (c 58), ss 5(3), 7.

The Waterways Authority v Fitzgibbon Mosman Municipal Council v Fitzgibbon Middle Harbour Yacht Club v Fitzgibbon Appeal and new trial - Practice and Procedure - New South Wales - Powers of court - Sufficiency of trial judge's reasons - Miscarriage of fact-finding process - Exercise of power to order new trial - New trial ordered by Court of Appeal on a limited factual basis - Substituted factual finding decisive on issue of causation - Whether Court of Appeal was right to order a new trial on this limited basis. Torts - Negligence - Causation - Person suffered injury when entering water from jetty - Absence of a handrail - Public authorities and yacht club responsible for design or approval of jetty - Whether person entered the water deliberately - Contributory negligence. Supreme Court Act 1970 (NSW), s 75A. Supreme Court Rules 1970 (NSW), Pt 51 r 23.

Agtrack (NT) Pty Limited v Hatfield Aviation - Carriage by air - Liability of carrier - Liability under Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("Carriers Act") for damage sustained by reason of the death of a passenger resulting from an accident which took place on board an aircraft in the course of commercial transport operations - Liability enforceable for the benefit of such family members of deceased passenger as sustained damage by reason of the death - Passenger killed in aircraft accident - Action brought by family member - Whether action in exercise of right to damages brought within two years of the date on which the carriage stopped - Whether right to damages extinguished. Aviation - Carriage by air - Liability of carrier - Family member's statutory right to damages - Extinguishment - Whether extinguishment of right to damages by effluxion of time involves determination of a condition which is of the essence of the right to damages or merely bars enforcement of the right. Pleading - Statement of claim - Whether sufficient facts pleaded to raise a claim under Carriers Act, Pt IV - Whether explicit invocation of Carriers Act, Pt IV is necessary to raise such a claim - Relevance of rules of court of a State court where claim arises under federal law. Pleading - Amendment - Amendment to pleadings to place beyond doubt reliance upon Carriers Act - Whether such amendment permissible after date on which right to damages would be extinguished - Relevance of State limitation of actions legislation. Private international law - Choice of law - Cause of action accrues in Northern Territory - Action brought in Victoria - Cause of action arises under federal law - Whether common law choice of law rules applicable. Constitutional law (Cth) - Federal judicial power - Federal jurisdiction - Jurisdiction invested in State courts in matters arising under federal law - Whether federal jurisdiction engaged - Whether law of Victoria governs the action by reason of Judiciary Act 1903 (Cth) ("Judiciary Act"), ss 79, 80 - Whether federal claim properly pleaded according to rules of court of a State court. Constitutional law (Cth) - Inconsistency of laws - State law adopting Lord Campbell's Act invalid as inconsistent with Carriers Act, s 35(2) - Consequences of inconsistency - Relationship of s 109 of the Constitution with Judiciary Act, s 79. Words and phrases - "is extinguished", "action ... brought". Civil Aviation (Carriers' Liability) Act 1959 (Cth), Pt IV. Judiciary Act 1903 (Cth), ss 39, 79, 80. Constitution, s 76(ii). GLEESON CJ, Mc

Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf Minister for Immigration and Multicultural Affairs v Israelian Re Minister for Immigration and Multicultural Affairs; Ex parte Israelian Immigration - Refugees - Review by Refugee Review Tribunal of decision to refuse application for protection visa - Whether s 430(1)(c) of Migration Act 1958 (Cth) imposes a duty or obligation on Tribunal to make, and to set out, findings on all objectively material questions of fact. Administrative law - Judicial review - Refugees - Application for protection visa - Judicial review of decision of Refugee Review Tribunal - Scope of grounds of review in Pt 8 of Migration Act 1958 (Cth) generally - Jurisdictional error as ground for review in s 476 of Migration Act 1958 (Cth). Administrative law - Judicial review - Refugees - Application for protection visa - Judicial review of decision of Refugee Review Tribunal - Where Tribunal failed to refer to alternative basis of applicant's claim to have a well-founded fear of persecution - Whether constitutes a ground for judicial review in s 476 of Migration Act 1958 (Cth). Administrative law - Judicial review - Refugees - Application for protection visa - Judicial review of decision of Refugee Review Tribunal - Significance of past acts to applicant's claim to have a well-founded fear of persecution - Where Tribunal made no express finding about one of three alleged past acts - Whether constitutes a ground for judicial review in s 476 of Migration Act. Immigration - Refugees - Whether possible application of law of general application can give rise to a well-founded fear of persecution. Constitution, s 75(v). Migration Act 1958 (Cth), Pt 8, ss 430 and 476. Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469, disapproved. GLEESON CJ. I agree with the reasons for judgment of McHugh, Gummow and Hayne JJ, and with the orders they propose. In view of the division of opinion which has emerged in the Federal Court, I would make the following additional comments. In each of the present appeals, the respondent applied for a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act"), claiming to satisfy the criterion set out in s 36(2). In summary form, the respondent set out to satisfy the Minister's delegate, pursuant to s 65 of the Act, that the respondent had a well-founded fear of persecution for a Convention reason if she or he returned to the country of her or his nationality. Having failed to satisfy the delegate, the respondent applied to have the delegate's decision to refuse to grant the visa reviewed, under Pt 7 of the Act, by the Refugee Review Tribunal ("the Tribunal"). The proceedings before the Tribunal, which were conducted in accordance with the procedures prescribed by Pt 7, were not adversarial. There was no contradictor who joined issue upon all or any of the facts alleged by the respondent. There was an ultimate question, expressed in terms of the Convention definition of a refugee, for determination by the Tribunal. In each case the respondent, for the purpose of satisfying the Tribunal that there should be a favourable resolution of that question, gave a history of past events, and an account and justification of present fears. In each case, the Tribunal, in setting out its reasons for its decision, made certain findings about the facts asserted, and contentions advanced. In each case, the Federal Court, when reviewing the decision of the Tribunal, under Pt 8 of the Act, considered that there were questions of fact raised in support of the visa application which were material, even if the Tribunal had not regarded them as such, and which had not been the subject of a finding made and set out in the Tribunal's reasons. Therefore, it was held, there had been a failure by the Tribunal to comply with s 430(1)(c) of the Act, which meant that the ground of review in s 476(1)(a) had been made out, and the decision of the Tribunal should be quashed. As McHugh, Gummow and Hayne JJ point out, a failure by the Tribunal to deal, in its reasons for decision, with some assertion of fact made by a visa applicant may, or may not, have consequences for judicial review of the Tribunal's decision, either in the Federal Court or in this Court, quite apart from whatever consequences it may have under s 476(1)(a). A consideration of those other possible consequences has been necessary in deciding the outcome of the present appeals, and applications under s 75(v) of the Constitution. But the first issue for determination in this Court concerns the application of s 476(1)(a). When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. It was not suggested, in either of the present cases, that the Tribunal made some finding of fact which it failed to set out. The substance of the complaint was that the Tribunal failed to make a finding upon a particular question. Such a complaint could only invoke the ground of judicial review in s 476(1)(a) if a failure to make a finding on a question of fact means that a procedure required by the Act to be observed in connection with the making of the decision has not been observed. If s 476(1)(a) has that meaning, then there is an incongruity in the section when read as a whole, because s 476(3)(e) qualifies s 476(1)(d) by excluding the Tribunal's failure to take a relevant consideration into account from the category of an improper exercise of power. The difference between failing to make a finding on a material question of fact, and failing to take a relevant consideration into account, is elusive. The former is narrower than the latter, but most examples of the former could also be presented as the latter. Both of the present cases involve a contention which is not materially different from a claim that the Tribunal failed to take a relevant consideration into account. To treat a failure to make a finding on a question of fact as a failure to observe a procedure in connection with the making of a decision involves a strained interpretation of the statutory language, especially in a context which distinguishes between legal review (indeed, somewhat attenuated legal review) and full merits review (of the kind in which the Tribunal engages when it reviews a delegate's decision). The major difficulty for the respondents, however, lies in the language of s 430. There is nothing in that language which imposes a requirement to make a finding on every question of fact which is regarded by the Federal Court, on judicial review of the Tribunal's decision, as being material. A good deal of materiality jurisprudence has developed from the attempt to relate ss 476(1)(a) and 430. Questions of fact which appear to have been regarded by the Tribunal as material are sometimes described as "subjectively material", to distinguish them from questions of fact which are regarded as material by a court reviewing the Tribunal's decision. Facts of the latter kind are then described as "objectively material". And the level of generality, or particularity, at which facts are to be classified for the purpose of determining their materiality is a problem. The distinction between facts in issue, particulars, and evidence, which may be difficult even in adversarial litigation conducted with or without formal pleadings, is even more difficult when applied to proceedings before the Tribunal. The requirement imposed by s 430 is to prepare a written statement that, in the context of setting out the Tribunal's reasons for decision, "sets out the findings" on any material questions of fact. It is impossible to read the expression "the findings" as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue. No one suggests that the present are such cases. But all the Tribunal is obliged to set out is such findings as it has made. The construction of s 430 for which the respondents contend in effect eliminates the definite article from s 430(1)(c), treats "any" as meaning "all", and finds in an express obligation to make a written record of findings of fact an implied obligation as to the ambit of the findings which must be made. None of this is impossible, but, like the meaning that the respondents attribute to s 476(1)(a), it is strained. When to that is added the incongruity associated with s 476(3)(e), and the problems of determining materiality on an "objective" basis in the context of legal review of a decision which commonly turns upon the Tribunal's assessment of the credibility of a person seeking to establish the status of a refugee, it is a construction I am unable to accept.

Native title – Native title rights in relation to land – National Security Act 1939 (Cth), s 5(1)(b)(i) provided for making of regulations for securing public safety and defence of Commonwealth and for authorising taking of possession or control, on behalf of Commonwealth, of any property – National Security (General) Regulations 1939 (Cth), reg 54(1) provided that if it appeared to Minister of State for Army to be necessary or expedient to do so in interests of public safety, defence of Commonwealth or efficient prosecution of war, or for maintaining supplies and services essential to life of Commonwealth, Minister could, on behalf of Commonwealth, take possession of any land and give such directions as appeared necessary or expedient in connection with taking possession – Where orders were made under reg 54(1) in relation to land authorising officer to do anything in relation to land that holder of estate in fee simple in land could do and prohibiting all other persons from exercising any right of way over land or any other right relating thereto – Whether orders inconsistent with claimed native title rights and interests – Whether clear and plain legislative intention to extinguish native title rights and interests. Words and phrases – "clear and plain legislative intention", "exclusive possession", "extinguishment", "inconsistency of rights", "possession". National Security Act 1939 (Cth), s 5(1). National Security (General) Regulations 1939 (Cth), reg 54.

Minister for Immigration and Border Protection v WZAPN WZARV v Minister for Immigration and Border Protection Migration – Refugee status – Section 91R(1)(b) of Migration Act 1958 (Cth) provides persecution must involve "serious harm to the person" – Section 91R(2)(a) lists "threat to the person's life or liberty" as instance of serious harm – Where person faces period or periods of temporary detention – Whether that constitutes "threat to liberty" amounting to serious harm, without qualification as to severity of threat. Migration – Refugee status – Section 91R(1)(a) of Migration Act 1958 (Cth) requires Refugees Convention reason to be "essential and significant reason" for persecution – Where Federal Court held there was failure to accord procedural fairness to claimant – Whether independent merits reviewer failed to draw claimant's attention to relevant issue or information – Whether no fair opportunity to address argument that could materially affect assessment. Words and phrases – "persecution", "serious harm", "threat to life or liberty". Migration Act 1958 (Cth), ss 91R(1)(a), 91R(1)(b), 91R(2)(a). Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), Art 1A(2).