Cases and authorities

Constitutional law (Cth) – Powers of Commonwealth Parliament – Territories – Inconsistency between Commonwealth and Territory laws – Where Commonwealth civil aviation law regulates matters preparatory to and subsequent to aircraft flight including embarkation and disembarkation of passengers – Where Commonwealth law implements and extends international obligations designed to achieve uniformity in regulation of civil aviation – Where Territory law regulates work health and safety – Whether Commonwealth law designed to operate within framework of other State, Territory and Commonwealth laws – Whether Commonwealth law contains implicit negative proposition that it is only law with respect to safety of persons affected by operations of aircraft including embarkation – Whether Territory law inconsistent with Commonwealth law. Words and phrases – "alter, impair or detract from", "anti-exclusivity clause", "Chicago Convention", "civil aviation", "cover the field", "embarkation", "implicit negative proposition", "indirect inconsistency", "intention to deal completely, exhaustively or exclusively", "legislative intention", "nationally harmonised laws", "operations associated with aircraft", "rule of conduct", "safety standards", "subject matter". Constitution, ss 109, 122. Air Navigation Act 1920 (Cth). Civil Aviation Act 1988 (Cth), ss 3, 3A, 9, 11, 20A, 27, 28BA, 28BD, 28BE, 29, 98. Civil Aviation Regulations 1988 (Cth), regs 2, 215, 235. Crimes Act 1914 (Cth), s 4C. Northern Territory (Self-Government) Act 1978 (Cth), s 6. Work Health and Safety Act 2011 (Cth). Work Health and Safety (National Uniform Legislation) Act 2011 (NT), ss 19, 27, 32.

Butcher v Lachlan Elder Realty Pty Limited Trade practices - Misleading or deceptive conduct - Sale of waterfront property - Real estate agent published brochure containing survey diagram obtained from vendor's solicitors - Survey diagram alleged to be inaccurate - Brochure contained a disclaimer by the real estate agent as to the reliability of information from other sources - Purchasers intended to develop property in reliance on the survey diagram - Whether real estate agent made a representation - Whether real estate agent engaged in misleading or deceptive conduct or conduct "likely to mislead or deceive". Words and phrases - "misleading or deceptive conduct", "representation". Fair Trading Act 1987 (NSW), s 42. Trade Practices Act 1974 (Cth), ss 52, 82.

BHP Billiton Limited v Schultz Courts and judges - Courts - Concurrent jurisdiction of different courts - Cross-vesting legislation - Plaintiff alleges that his asbestos-related disease resulted from exposure to asbestos while working in South Australia - South Australia identified as the place of the alleged wrong - Plaintiff commenced proceedings in Dust Diseases Tribunal of New South Wales - Plaintiff a resident of South Australia - Whether Supreme Court of South Australia a "more appropriate" forum - Whether proceeding to be transferred "in the interests of justice" - Relevance of circumstance that jurisdiction of the Dust Diseases Tribunal was regularly invoked - Relevance of plaintiff's choice of forum - Relevance of circumstance that law of other State less favourable to plaintiff than the law of the forum - Relevance of circumstance that the forum has particular experience and facility in dealing with the specific type of claim - Relationship between cross-vesting applications and forum non conveniens. Private international law - Choice of law - Lex loci delicti - New South Wales statute empowers Dust Diseases Tribunal to award further damages at a future date if the injured person develops dust-related condition - South Australian statute provides for a once and for all assessment of damages - Whether New South Wales law procedural or substantive in character. Constitutional law (Cth) - State Parliaments - Powers - Whether State Parliaments competent to legislate in a manner which curtails or interferes with the exercise of the powers of another State - Whether State Parliaments competent to legislate for the exercise of adjudicative functions by their courts outside their geographical territory. Constitutional law (Cth) - Full faith and credit - Choice of law - Lex loci delicti - Whether requirement that full faith and credit be given to the laws, the public Acts and records, and the judicial proceedings of every State, places it beyond competence of one State to require its courts or tribunals to determine the action by any system of substantive law other than the lex loci delicti. Words and phrases: "more appropriate forum", "interests of justice". Constitution, ss 73, 74, 75(v), 107, 118. Service and Execution of Process Act 1992 (Cth), ss 15, 20. Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5, 8, 9, 13. Dust Diseases Tribunal Act 1989 (NSW), ss 10, 11, 11A, 13. Jurisdiction of Courts (Cross-vesting) Act 1987 (SA), s 11. Supreme Court Act 1935 (SA), s 30B. GLEESON CJ, Mc

Constitutional law (Cth) – Powers of Commonwealth Parliament – Federal elections – Severance – Where s 51(xxxvi) in application to ss 10 and 31 of Constitution conferred legislative power on Commonwealth Parliament with respect to federal elections – Where Commonwealth Parliament enacted s 302CA within Div 3A of Pt XX of Commonwealth Electoral Act 1918 (Cth) – Where s 302CA relevantly conferred authority on person to make, and on "political entity" to receive and retain, gift not prohibited by Div 3A provided that gift or part of it was "required to be, or may be" used for certain purposes relating to federal elections – Where s 302CA provided for displacement of such authority in circumstances including where State or Territory electoral law required gift or part of it to be kept or identified separately to be used only for purpose of State, Territory or local government election – Whether Commonwealth legislative power with respect to federal elections exclusive or concurrent – Whether s 302CA within scope of Commonwealth legislative power with respect to federal elections – Whether possible to sever s 302CA to preserve part of its operation within scope of Commonwealth legislative power. Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Gifts to political parties – Where Queensland Parliament passed amendments to Electoral Act 1992 (Qld) and Local Government Electoral Act 2011 (Qld) prohibiting property developers from making gifts to political parties that endorse and promote candidates for election to Legislative Assembly and local government councils – Whether Queensland amendments inconsistent with s 302CA or framework of Pt XX of Commonwealth Electoral Act – Whether s 302CA invalid for infringing principle in University of Wollongong v Metwally (1984) 158 CLR 447; [1984] HCA 74. Constitutional law (Cth) – Implied freedom of communication about governmental and political matters – Where amendments to Electoral Act 1992 (Qld) substantially replicated provisions in Election Funding, Expenditure and Disclosures Act 1981 (NSW) upheld in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 – Whether amendments invalid for infringing implied freedom. Constitutional law (Cth) – Relationship between Commonwealth and States – Doctrine of inter-governmental immunities – Whether implication expounded in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; [1947] HCA 26 operates reciprocally to protect States and Commonwealth from impermissible interference by law of one polity with operations of government in another – Whether s 302CA invalid for contravening Melbourne Corporation principle – Whether Queensland amendments invalid for contravening Melbourne Corporation principle. Words and phrases – "bare attempt to limit or exclude State power", "concurrent power", "electoral expenditure", "electoral matter", "exclusive power", "federal elections", "federalism", "immunity from State laws", "incidental", "inconsistency", "inter-governmental immunities", "political entity", "political party", "required to be, or may be, used for the purposes of incurring electoral expenditure, or creating or communicating electoral matter", "severance", "State elections", "structural implication", "sufficient connection". Constitution, ss 7, 9, 10, 29, 31, 51(xxxvi), (xxxix), 109. Acts Interpretation Act 1901 (Cth), ss 13, 15A, 15AD. Commonwealth Electoral Act 1918 (Cth), ss 4AA, 302CA, Pt XX. Election Funding, Expenditure and Disclosures Act 1981 (NSW), Pt 6, Div 4A. Electoral Act 1992 (Qld), Pt 11, Div 8, Subdiv 4. Local Government Electoral Act 2011 (Qld), Pt 6, Div 1A. Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld), Pts 3, 5.

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs Immigration - Refugees - Refugee Review Tribunal - Decision - Judicial review - Procedural fairness - Non-compliance with statutory duties - Tribunal concerned by inconsistencies in applicant's evidence at oral hearing - Tribunal said it would give the applicant a chance to respond in writing to its concerns - Whether Tribunal's failure to do so involved a failure to complete the review process - Whether failure involved a breach of the duty to conduct a review under s 414(1) of the Migration Act 1958 (Cth) - Whether failure involved a breach of the duty to hear from the applicant under s 425(1) - Whether reviewable error where absence of evidence from the applicant about effect of failure. Migration Act 1958 (Cth), ss 56, 414(1), 415(1), 425(1), 427(1)(b), 420, Pt 7 Divs 2-7A. Mc

Administrative law (Cth) – Administrative Appeals Tribunal – Nature and scope of review – Where appellant's convictions spent under Pt VIIC of Crimes Act 1914 (Cth) – Where Div 3 of Pt VIIC of Crimes Act prohibited Australian Securities and Investments Commission ("ASIC") from taking into consideration spent convictions in deciding to make banning order – Where review of decision of ASIC by Administrative Appeals Tribunal – Where s 85ZZH(c) of Crimes Act provided that Div 3 of Pt VIIC does not apply to Commonwealth tribunal – Whether Administrative Appeals Tribunal entitled to take into consideration on review spent convictions which ASIC was prohibited from taking into consideration. Words and phrases – "banning order", "fit and proper person", "function of the original decision-maker", "review", "spent conviction", "stand in the shoes of the decision-maker". Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 43. Crimes Act 1914 (Cth), Pt VIIC, ss 85ZM, 85ZV, 85ZW, 85ZZH(c). National Consumer Credit Protection Act 2009 (Cth), ss 80, 327.

Western Australian Planning Commission v Temwood Holdings Pty Ltd Town Planning (WA) - Statutory right to compensation conferred upon any person whose land or property was injuriously affected by the making of a specified planning scheme - Land injuriously affected by making of scheme not owned by respondent at time scheme was made but subsequently owned by respondent - Whether right to compensation passed with the land - Whether respondent had a statutory right to compensation. Town Planning (WA) - Subdivision of land - Application for subdivision approval - Progressive subdivision of larger area - Town planning authority granted subdivision approval subject to a condition that a portion of the larger area be vested in the Crown free of cost and without any payment of compensation by the Crown - Whether condition imposed for a proper "planning purpose" - Whether condition fairly and reasonably related to the development permitted - Whether condition validly imposed. Town Planning and Development Act 1928 (WA), ss 11, 20, 20A. Metropolitan Region Town Planning Scheme Act 1959 (WA), ss 3, 5, 36. Mc

Negligence - Duty of care - Motor vehicle accident - Pedestrian struck by motor omnibus - No eyewitnesses - Pedestrian visible to driver of motor omnibus well before collision - No other vehicles on road impeding driver's capacity to avoid impact - Driver's failure to brake or swerve to avoid pedestrian - Whether open to primary judge to find driver negligent upon the evidence. Negligence - Contributory negligence - Pedestrian walking on road at night in dark clothing - No footpath visible to pedestrian - Driver's superior capacity to control outcome - Whether pedestrian contributorily negligent - Apportionment of liability. Appeal - Appellate review of fact-finding at trial before judge alone - Reversal by appellate court of findings of fact at trial - Limitations on appellate review of findings at trial. Judiciary Act 1903 (Cth), s 37. Supreme Court Act 1970 (NSW), s 75

Nicholls v The Queen; Coates v The Queen Criminal law - Evidence - Admissibility of admissions made off-video during interview with accused - Whether reasonable excuse for not videotaping admissions - Criminal Code (WA), s 570D(2)(b), (4). Criminal law - Evidence - Admissibility of evidence of prior inconsistent statement of witness - Whether evidence of statement went to issue - Whether admissible as exception to rule against admission of collateral statements - Whether exceptions of bias, interest or corruption applicable - Whether the detail of alleged statement indicating an exception to the collateral evidence rule must be put specifically to the witness in cross-examination. Evidence - Criminal trial - Prior inconsistent statement of witness - Whether admissible as exception to rule against collateral statements - Admissions allegedly made off-video during interview by police - Whether reasonable excuse for not videotaping such admissions. Criminal law - Evidence - Whether evidence of prior inconsistent statement hearsay - Whether exception to hearsay rule. Criminal law - Jury directions - Whether trial judge's direction accorded with McKinney v The Queen - Appropriateness of reference to possible perjury on part of police. Criminal law - Evidence - Admissions - Adequacy of trial judge's direction - Whether need for McKinney direction. Words and phrases - "interview", "reasonable excuse". Criminal Code (WA), s 570D. Evidence Act 1906 (WA), s 21. GLEESON CJ. I agree, for the reasons given by Hayne and Heydon JJ, that in the matter of Nicholls v The Queen the appeal should be dismissed. In particular, I agree with what Hayne and Heydon JJ have said concerning the collateral evidence rule. As will appear from a reading of the reasons of the other members of the Court, the decision to dismiss the appeal in Nicholls v The Queen, which turns upon the matter of collateral evidence, is unanimous. In the course of argument, we were invited by counsel to re-define the collateral evidence rule, characterising it, not as a rule of law, but as a guide to discretionary case management. That invitation has been declined by six members of the Court. Alternatively, it was argued that the excluded evidence fell within one or more of the exceptions to the collateral evidence rule, specifically those relating to bias, interest or corruption. That submission took a number of forms, and has met with somewhat different responses, but, in the view of all members of the Court, it must fail in any event because, in the cross-examination of the critical witness, no proper foundation was laid for the tender of the evidence in question. I also agree, substantially for the reasons given by Hayne and Heydon JJ, that in the matter of Coates v The Queen the appeal should be dismissed. In view of the difference of opinion within this Court on the question of the admissibility of evidence of certain admissions allegedly made by the appellant, I wish to add the following comments. They are directed to the evidence of what was said during "the second break" in the questioning by police of the appellant, which is when the potentially significant admissions were made. It is submitted that the evidence was made inadmissible by s 570D(2) of the Criminal Code (WA) ("the Criminal Code"). So far as presently relevant, that sub-section provided that evidence of an admission by the appellant to police was not admissible unless either it took the form of a videotape on which the admission was recorded, or the prosecution proved, on the balance of probabilities, that there was a reasonable excuse for there not being a recording on videotape of the admission. Sub-section (4)(c) provided that there was a reasonable excuse if the appellant did not consent to the interview being taped. Section 570D was part of a Chapter of the Criminal Code dealing with "videotaped interviews". The expression "interview" was defined to mean "an interview with a suspect by a member of the Police Force" (s 570). The Chapter, apart from s 570D, contained various provisions regulating particular matters relating to videotapes and their use. They do not touch the present problem. The statutory context throws little direct light on the question that now arises. Bearing in mind the two rulings of the trial judge, and the context in which they were made, it is clear that he found that the appellant did not consent to the videotaping of the part of his conversation with the police during which the admissions presently in question were made. The appellant sought and obtained an interruption of the videotaping for the purpose of having a conversation that was not on tape. That finding was upheld by the Full Court. Miller J, in the Full Court, said that "the initiation by Coates himself of the off-video interview" was "a critical factor" in the decision that the evidence was admissible. For the purposes of this appeal, it is important to distinguish between questions of fact, and questions of law concerning the construction of s 570D. At the trial, on an issue as to the application of s 570D(2)(b), the prosecution carried the onus of proving, on the balance of probabilities, that there was a reasonable excuse for there not being a recording on videotape of the admissions. As a matter of fact, the prosecution established to the satisfaction of the trial judge that, at a certain point in the interview then being recorded on videotape, the appellant requested that the videotaping cease, so that he could speak to police without there being a video recording of what he said. The decision of the Full Court creates concurrent findings on that matter of fact. Those findings were open on the evidence, and have not been successfully challenged in this Court. The substantial question for this Court concerns the legal consequence, for the purpose of s 570D, of those findings. Legislation such as s 570D seeks to strike a balance between competing considerations and interests. A search for legislative purpose needs to take account of the fact that legislatures rarely engage in the pursuit of a single purpose at all costs. Problems of statutory construction often arise because the extent to which the legislature intends to pursue a given purpose is unclear. When, as is so obviously the case with s 570D, Parliament adopts a compromise, a court may be left with the text as the only safe guide to purpose. Section 570D(4)(c) assumes that the consent of a suspected person is necessary if the police are to videotape an interview. That assumption was not challenged in argument in this Court. Absence of consent to the interview being videotaped is, by definition, a reasonable excuse for there not being a recording on videotape of an admission made during the interview. Putting to one side, for the moment, the question of the interviewee who consents to some conversations being videotaped but does not consent to others, and subject to any other questions of admissibility that could arise, evidence may be received of an admission by an accused person in the course of an interview where the accused person did not consent to the interview being videotaped. In such a case, the interview is off-camera, but not off the record. Consistently with s 570D, a court may receive evidence of the admission. Because the accused person has not consented to a videotaping of the interview, there is a reasonable excuse for there not being a recording on videotape of the admission. That is the effect of the express language of the statute. No doubt the general purpose of s 570D is to reduce the possibility of police fabrication of admissions, and to limit the potential scope for dispute about "verbal admissions". The reasons for that are too well known to require restatement. Even so, each one of the forms of reasonable excuse provided by s 570D(4) for there not being a videotaped recording of an admission, including absence of consent of the interviewee, is capable of being contrived, or disputed. The present problem arises because, although the section deals expressly with the case where a person being interviewed does not consent to the interview being videotaped, it does not deal expressly with the case of a person who gives consent and later terminates it, either completely, or with respect to some particular subject, or for some limited time. As the facts of the present case illustrate, there could be many reasons why a person would consent to being questioned on videotape about some matters, but not about others. It is difficult to understand why the legislature would have intended to distinguish between the case of a person who, at the commencement of police questioning, refuses to consent to any videotaping, and one who terminates or suspends consent, temporarily or indefinitely. It is the dependence upon the consent of the interviewee that gives rise to the present question, together with the obvious practical possibility that, during the questioning, consent might be terminated or suspended. There is nothing in the section to suggest that consent, once given, covers all that follows without any opportunity for bringing it to an end. It would be unfair if that were so. A person who, at the outset, expects to be questioned about a particular matter might find that the questioning develops in an unforeseen manner. The most natural meaning to give s 570D, in those circumstances, is that termination or suspension of consent has the same consequence, during the period of suspension, or following termination, as an initial refusal to consent. That is the way the trial judge and the Full Court approached the section, and I think they were right. What is the competing possibility? Let it be supposed that a suspect initially consents to an interview being videotaped. Suppose that, at some point in the interview, the police ask the suspect what he knows about X, a criminal. Suppose that, for reasons perhaps related to the known propensities of X, the suspect says, or indicates, that he will answer the question, but not on camera, and the camera is switched off. Section 570D is concerned only with the admissibility of evidence; specifically, the admissibility of admissions made to the police. It does not regulate the power of the police to ask questions, and it does not impose any obligation on a person to answer questions. It does not require the whole, or any particular part, of an interview to be videotaped; it simply deals with a consequence of the absence of a videotape record of an admission. In the example given, whatever the effect of s 570D might be, it does not depend upon whether the person being interviewed is accompanied by a lawyer, or upon whether contemporaneous written notes are made of what is said off camera, or upon whether, when the videotaping is resumed, the police repeat, in front of the camera, what had occurred while the camera was switched off. If some discretionary ruling relating to a matter of fairness is required, those circumstances might become relevant, but they have nothing to do with the question of construction of s 570D now under consideration. The argument for the appellant must be that, by temporarily withdrawing or suspending consent to videotaping, the suspect can say what he pleases about a particular topic without any risk that it might be tendered in evidence against him. That must be so, regardless of what precautions, if any, are taken to eliminate the possibility of dispute or fabrication. It would be so, for example, even if the suspect's lawyer is present and taking notes. That seems a very curious result. It is not one that is required by the language of s 570D, and it does not advance any rational legislative policy. I prefer the view of the section that was taken in the Supreme Court of Western Australia. Mc

Kamleh v The Queen HIGH COURT OF AUSTRALIA GLEESON CJ, McHUGH, KIRBY, HAYNE AND HEYDON JJ JAMIL YOUSEF KAMLEH APPELLANT AND THE QUEEN RESPONDENT Kamleh v The Queen [2005] HCA 2 3 February 2005 A30/2004 ORDER Appeal dismissed. On appeal from the Supreme Court of South Australia Representation: B J Powell QC with C J Caldicott for the appellant (instructed by Caldicott & Co) W J Abraham QC with S McDonald for the respondent (instructed by Director of Public Prosecutions (South Australia)) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Kamleh v The Queen Criminal law - Evidence - Hearsay - Appellant charged with murder - Alleged accomplice not called as witness - Admissibility of evidence of out-of-court statements to prove relevant facts other than the truth of the representations made in the statements - Whether evidence of out-of-court statements adduced to prove intention is admissible - Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 discussed. Evidence - Hearsay - Criminal law - Admissibility of out-of-court statements to prove relevant facts other than the truth of the representations made in the statements - Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 discussed. GLEESON CJ AND Mc

Contract - Penalty - Agreement to purchase service station from distributor of fuel - Collateral agreement requiring fuel to be purchased exclusively from distributor - Breach of collateral agreement - Termination of collateral agreement by distributor pursuant to contractual power - Option to buy back service station exercisable by distributor on termination of collateral agreement - Whether option void and unenforceable as a penalty - Whether exercise of option oppressive or extravagant and unconscionable compared with genuine pre-estimate of damage - Relevance of proportionality to penalty questions.

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs Immigration - Application for protection visa - Decision of Refugee Review Tribunal - Procedural fairness - Where Tribunal reviewed an unsolicited letter received by the Department of Immigration and Multicultural and Indigenous Affairs, which made allegations against the appellant - Where Tribunal did not inform the appellant of the existence of the letter or its contents - Where Tribunal affirmed decision under review and said that in reaching its decision it gave no weight to the letter - Whether procedural fairness required the Tribunal to inform the appellant of the existence of the letter or its contents. Words and phrases - "procedural fairness", "credible, relevant and significant". Migration Act 1958 (Cth), ss 418(3), 424A, 438.

Vendor and purchaser - Sale of land - Purchasers entitled to possession prior to completion on conditions including requirement of vendor's approval - Vendor wrongly purported to rescind contract - Vendor denied purchasers access to land - Purchasers sued for damages for breach of access provision - Whether necessary for purchasers to seek vendor's approval notwithstanding purported rescission - Whether vendor's conduct waived condition of approval. Contract - Construction of contract - Purchasers to have access to land prior to completion to farm in areas approved by vendor - Whether vendor required to act reasonably in granting or withholding approval. Contract - Construction of contract - Implied duty to co-operate - Limits of operation of implication. Practice and procedure - Appeal - Whether it is open to an appellate court to allow an appeal on a new ground that was not raised at trial and that, if raised, could have been the subject of evidence.

MWJ v The Queen Criminal law - Practice and procedure - Trial by judge without a jury - Appellant convicted of three sexual offences against a child - Supposed inconsistencies between the evidence of the complainant and her mother concerning complaints that the complainant made to her mother - Whether the manner in which the trial judge dealt with the supposed inconsistencies involved error. Criminal law - Practice and procedure - Rule in Browne v Dunn - Application of the rule to an accused in a criminal trial - Supposed inconsistencies between the evidence of the complainant and her mother not put to the complainant in cross-examination - Whether the complainant should have been re-called - Consequences for trial judge's decision-making.

Negligence - Occupiers' liability - Breach of duty of care - Appellant invited the public to attend a garage sale - Garage sale conducted on the driveway of her residence - Driveway surface was uneven - Respondent entered premises and tripped on driveway - Whether risk posed by the uneven surface of the driveway was obvious and relatively minor and whether such considerations justified conclusion that there was no breach of duty of care. Negligence - Occupiers' liability - Whether appellant owed a duty of care to the respondent - Scope of duty - Relationship between the duty of care and other elements of the tort of negligence - Relevance of obviousness of the risk. Negligence - Occupiers' liability - Standard of care - Whether appellant breached duty of care - Nature and extent of the premises - Nature and extent of the danger - Significance of economic relationship between the parties -Significance of the respondent's age - Significance of the appellant's knowledge of the danger - Absence of any precautionary measures - Reasonableness of taking precautionary measures - Relevance of obviousness of the risk - Relevance of inattention by the respondent - Relevance of the application to the evidence of the Wrongs Act 1936 (SA). Words and phrases - "obvious risk". Civil Liability Act 1936 (SA), s 20. Wrongs Act 1936 (SA), s 17

Antoun v The Queen Antoun v The Queen Courts and Judges - Apprehension of bias - Judge sitting alone in criminal trial - Standards of fairness and detachment required of a trial judge.

Compulsory acquisition - Compensation - Minister acquired land by compulsory process pursuant to Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 19 - Where land comprised many individual parcels each of which was a separate lot in a deposited plan - Transactions purportedly undertaken with the effect that lots beneficially held by a small number of registered proprietors were distributed among a larger number of equitable owners ("May 1998 transactions") - May 1998 transactions included dealings between Sealark Pty Ltd ("Sealark") and Pacinette Pty Ltd ("Pacinette") - Sealark held equitable interest in land - Pacinette constituted as trustee of unit trust in which Ordinary Class and A Class units could be allotted - A Class unit holders entitled to fractional interest in assets received in consideration of the allotment of the units, which assets were to form a separate fund to the ordinary fund - Pacinette as trustee empowered to redeem A Class units - A Class units intended to be allotted to Sealark in consideration of the transfer of Sealark's interest in the land to Pacinette as trustee - Pacinette intended to acquire equivalent number of Ordinary Class units paid for by bill of exchange drawn by Pacinette on Sealark as an accommodation party - Sealark intended to redeem all A Class units and Pacinette to pay redemption moneys by endorsing bill of exchange to Sealark - Assets of A Class fund were thereby to become assets in the ordinary fund the entire equitable interest in which was vested in Pacinette - Whether transactions effective in law - Whether claimants for compensation had an equitable interest in the land compulsorily acquired. Company law - Meetings - Transaction between Sealark and Pacinette was one of 770 similar transactions which made up the May 1998 transactions - Documents for the May 1998 transactions were mostly signed in one sitting in the offices of the appellants' solicitors, where those documents included minutes of meetings of the boards of directors of both Sealark and Pacinette - Whether evidence disclosed that May 1998 transactions occurred - Whether the meetings said to be recorded in the minutes occurred. Statute of frauds - Requirement of writing - Disposition of equitable interests - Whether requirements of Conveyancing Act 1919 (NSW), s 23C(1)(c) were complied with in the course of dealings between Sealark and Pacinette. Bills of exchange - Delivery - Negotiation by indorsement and delivery - Whether bill of exchange tendered in payment for units - Whether bill of exchange negotiated by indorsement and delivery - Whether mere intention to take steps involving tender and negotiation of bill of exchange sufficed to effectuate equitable transfer of interest in land to Pacinette. Stamp duty - May 1998 transactions designed to ensure that Stamp Duties Act 1920 (NSW) ("Stamp Duties Act"), Pt 3, Div 3A was inapplicable to those transactions - No duty paid on those transactions - Whether transactions dutiable - Whether change in beneficial ownership occurred as a result of transfer by Sealark of its interest in the land to Pacinette as trustee in consideration of the issue of A Class units - Whether no change in beneficial ownership because Sealark was sole unit holder of A Class units - Whether change in beneficial ownership occurred as the consequence of the issue or redemption of units in a unit trust scheme for the purposes of s 44(2)(d) of the Stamp Duties Act - Whether s 29(3) of the Stamp Duties Act applied to bar admission of any documentary evidence to prove the transaction creating the equitable interests in the land in proceedings for compensation for compulsory acquisition of the land. Words and phrases - "beneficial ownership", "occurring as the consequence of the issue or redemption of units in a unit trust scheme". Bills of Exchange Act 1909 (Cth), s 33(1). Conveyancing Act 1919 (NSW), s 23C(1)(c). Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 19, 20, 37. Land and Environment Court Act 1979 (NSW), s 57(1). Stamp Duties Act 1920 (NSW), ss 29(3), 44-44

Phillips v The Queen Criminal Law - Information, indictment or presentment - Joinder of counts - Criminal Code (Q), ss 567, 597A - Series of offences of same or similar character - Whether admission of evidence of each complainant in relation to all counts prejudicial to appellant such that separate trials should have been ordered. Criminal Law - Evidence - Admissibility of similar fact evidence - Appellant charged with eight counts of sexual offences against six complainants -Whether evidence in relation to counts involving one complainant admissible in relation to counts involving other complainants - Whether similar fact evidence admissible on the issue of consent - Whether similar fact evidence admissible on issues other than consent - Application of principles for admissibility of similar fact evidence stated in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 - Whether similar fact evidence has strong degree of probative force sufficient to outweigh prejudicial effect. Criminal Law - Jury - Verdict - Unreasonable verdicts - Whether verdicts only explicable as the product of compromise between jurors - Whether intervention required to prevent injustice. Criminal Law - Retrial - Appellant acquitted on one count of rape - Whether admission of closely related evidence at retrial on different counts would fail to give full effect to that acquittal. Criminal Code (Q), ss 567, 597

Industrial law - Police - Termination of appointment - Appellant member of South Australia Police - Appellant convicted of assault contrary to s 39 Criminal Law Consolidation Act 1935 (SA) - Appellant's appointment as member of SA Police terminated - Appellant applied to Industrial Relations Commission for relief against dismissal - Appellant alleged termination of appointment harsh, unjust or unreasonable - Jurisdiction of Industrial Relations Commission to entertain appellant's application. Police - Termination of appointment - Appellant member of SA Police - Appellant convicted of assault - Appellant's appointment as member of SA Police terminated - Whether Police Act 1998 (SA) impliedly repealed provisions of the Industrial and Employee Relations Act 1994 (SA) providing for unfair dismissal. Statutes - Implied repeal. Statutes - International law - State statute - Incorporation of reference in State statute to international convention - Relevance of such incorporation - Whether such incorporation favours adoption of an interpretation favourable to the availability of the convention remedies in the particular case. Statutes - Successive State statutes - Suggested inconsistency between statutory remedies for dismissal of police officers - Whether any such inconsistency or ambiguity resolved by the time sequence of enactment of the statutes - Whether resolved by reference to generality of language and identity of the particular and general character of the legislation - Whether beneficial character of statutory provisions relevant - Whether reference to international convention in a State statute a relevant consideration. Words and phrases - "harsh, unjust or unreasonable". Industrial and Employee Relations Act 1994 (SA). Police Act 1998 (SA). Police (Complaints and Disciplinary Proceedings) Act 1985 (SA).

The Trustees of the Property of John Daniel Cummins A Bankrupt v Cummins Bankruptcy - Transfer to defeat creditors - Main purpose - Bankrupt transferred interest in matrimonial property to first respondent wife and transferred shares to second respondent - Whether evidence sufficient to permit inference that bankrupt's main purpose in transferring assets was to defeat or delay creditors - Whether main purpose of transfers to protect assets against future professional negligence suits - Whether transfer of assets void against trustee in bankruptcy - Bankruptcy Act 1966 (Cth), s 121(1)(b). Evidence - Judicial notice - Bankrupt, a Queen's Counsel who maintained two sets of chambers, failed to lodge tax returns for about 45 years - Whether inference should be drawn that bankrupt had a taxable income at a level which gave rise to a liability to pay income tax - Whether income disclosed in later tax returns relevant to establish income from earlier period of time - Whether Australian Taxation Office a creditor of the bankrupt. Trusts - Resulting trusts - Joint tenancy - Bankrupt and wife purchased land as joint tenants - Purchase money provided in unequal shares - Whether presumption of resulting trust applies such that property beneficially held in proportion to contributions - When appropriate point in time for determination of equitable interests in property - Bankrupt and wife in subsisting matrimonial relationship improved property subsequent to purchase by constructing matrimonial home - Whether evidence sufficient to rebut presumption of resulting trust - Whether transfer was of bankrupt's interest as joint tenant without any adjustment to allow for beneficial tenancy in common in unequal shares. Bankruptcy Act 1966 (Cth), ss 6, 121.

CONTEMPT - charge of contempt based on a failure to comply with a court order does not depend on establishing that the court was actually misled

Immigration - Refugees - Protection visa decision - Review by Refugee Review Tribunal - Hearing of an application for review by the Tribunal to be "in private" - Appellant making common cause with other visa applicants - Application for review conducted with other applicants present - Whether hearing of application conducted "in private". Words and phrases - "in private". Migration Act 1958 (Cth), s 429.

Immigration - Cancellation of Visas - s 501(2) of the Migration Act 1958 (Cth) ("the Act") - Where Minister purported to cancel a "transitional (permanent) visa" on the basis of the respondent failing the character test in s 501(6) of the Act - Where respondent had a substantial criminal record - Where respondent had lived in Australia since he was 27 days old - Where respondent held an "absorbed person visa" - Whether the respondent also held a "transitional (permanent) visa" - Whether as a matter of construction the Act allowed the respondent to hold both an "absorbed person visa" and a "transitional (permanent) visa". Administrative law - Decision of Minister under s 501(2) or s 503 of the Act - Jurisdictional error - Whether there was a misdescription of a visa which invalidated the Minister's decision - Whether a failure to take into account relevant considerations invalidated a decision - Whether the Minister's cancellation of a "transitional (permanent) visa" and disregard of the "absorbed person visa" amounted to jurisdictional error - Where s 501F(3) would operate to cancel both visas. Statutes - Statutory Construction - expressum facit cessare tacitum - Where s 201 of the Act excludes certain persons from the scope of the Minister's power to deport pursuant to s 200 of the Act - Where the respondent was a person covered by s 201 and also not an object of the power to deport pursuant to s 200 - Whether s 201 of the Act confers a protection against deportation - Whether the subject matter of ss 200, 201 and 501 of the Act is the same, dealing with the removal of persons who have been convicted of offences from Australia - Whether the Minister's lack of power to deport the respondent under s 200 limits the Minister's power to cancel a visa under s 501 - Whether s 501 repugnant to ss 200 and 201 so as to necessitate s 501 being read subject to ss 200 and 201. Words and Phrases - "implied repeal", "expressum facit cessare tacitum", "accrued statutory right". Migration Act 1958 (Cth), ss 198, 200, 201, 501(2), 501(6), 501F. Migration Amendment Act 1983 (Cth). Migration Legislation Amendment Act 1989 (Cth). Migration Reform Act 1992 (Cth). Migration Legislation Amendment Act 1994 (Cth). Migration Reform (Transitional Provisions) Regulations (Cth). GLEESON CJ. I have had the advantage of reading in draft form the reasons for judgment of Heydon and Crennan JJ. I agree with the orders proposed by their Honours, and with their reasons for those orders. As to the issue concerning the effect, if any, upon s 501(2) of the Migration Act 1958 (Cth) of ss 200 and 201 of that Act, I would make the following comment. The contention that ss 200 and 201 give a person in the position of the respondent a protection or immunity from the exercise of the power conferred by s 501 is a statement of a conclusion, rather than an expression of a reason for reaching that conclusion. If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention[1]. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said[2]. As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context. In the result, the respondent's contention amounts to an assertion; a statement of an outcome that would be supportive of his freedom to remain in Australia, and in that sense protective of his interests, but without a convincing argument of statutory construction which sustains that outcome. Therefore, it fails.

of Australia Western Australia v Commonwealth of Australia South Australia v Commonwealth of Australia Queensland v Commonwealth of Australia Australian Workers' Union v Commonwealth of Australia Unions NSW v Commonwealth of Australia Victoria v Commonwealth of Australia Constitutional Law (Cth) - Powers of federal Parliament - Workplace Relations Amendment (Work Choices) Act 2005 (Cth) amended Workplace Relations Act 1996 (Cth) - Amending Act altered primary constitutional basis of Workplace Relations Act 1996 (Cth) so as to place reliance on s 51(xx) instead of s 51(xxxv) of the Constitution - Constitutional validity of Workplace Relations Amendment (Work Choices) Act 2005 (Cth) - Whether s 51(xx) of the Constitution confers power upon the federal Parliament to regulate the employment relationship between "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth" and their employees. Constitutional Law (Cth) - Powers of federal Parliament - Section 51(xx) - Whether, to be supported by s 51(xx), the fact that a corporation is a foreign, trading or financial corporation must be significant in the way in which the law relates to it - Whether sufficient for law to be characterised as law with respect to constitutional corporations that it singles out constitutional corporations as the object of statutory command. Constitutional Law (Cth) - Powers of federal Parliament - Relationship between s 51(xx) and s 51(xxxv) - Whether s 51(xx) confined in its operation by reference to terms of s 51(xxxv) - Whether s 51(xxxv) represents the totality of the federal Parliament's power to make laws with respect to industrial relations, except in relation to employees of the Commonwealth and other limited categories of employees - Whether s 51(xxxv) contains a "positive prohibition or restriction" to which s 51(xx) is subject - Whether s 51(xxxv) contains a "safeguard, restriction or qualification" to which s 51(xx) is subject. Constitutional Law (Cth) - Powers of federal Parliament - Section 51(xxxv) - Constitutional validity of Sched 6 of Workplace Relations Act 1996 (Cth) as amended by Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("Amended Act") - Whether Sched 6 supported by s 51(xxxv) of the Constitution. Constitutional Law (Cth) - Powers of federal Parliament - Section 122 - Amended Act applied to any body corporate incorporated in a Territory and any person or entity that carried on an activity in a Territory so far as the person or entity employed an individual in connection with the activity - Whether supported by s 122 of the Constitution. Constitutional Law (Cth) - Powers of federal Parliament - Exclusion of State and Territory laws - Section 16 of Amended Act excluded certain State and Territory laws - Whether s 16 a law with respect to any head of power in s 51 of the Constitution - Whether s 16 amounted to a bare attempt to limit or exclude State legislative power - Whether s 16 impermissibly curtailed the capacity of the States to function as governments. Constitutional Law (Cth) - Powers of federal Parliament - Section 117 of Amended Act empowered the Australian Industrial Relations Commission to restrain a State industrial authority from dealing with certain matters - Whether s 117 contrary to s 106 of the Constitution - Whether s 117 impermissibly impaired capacity of States to function as governments - Whether s 117 supported by s 51(xx). Constitutional Law (Cth) - Powers of federal Parliament - Regulation-making powers - Sections 356 and 846(1) of Amended Act together empowered the Governor-General to make regulations specifying matters to be "prohibited content" in relation to workplace agreements made under the Act, without expressly stipulating any relevant criteria - Whether regulation-making power amounted to a "law" - Whether regulation-making power a law with respect to any identifiable head of Commonwealth legislative power. Constitutional Law (Cth) - Constitutional interpretation - Applicable principles of interpretation - Relevance of failure of proposals to alter Constitution by referendum. Constitution, ss 51(xx), 51(xxxv), 122. Workplace Relations Amendment (Work Choices) Act 2005 (Cth). Workplace Relations Act 1996 (Cth).

Immigration – Refugees – Review by Refugee Review Tribunal – Where respondent applied for protection visa on ground of fear of persecution in Pakistan because of claimed homosexuality – Requirement of satisfaction of state of facts – Where protection visa refused on grounds that decision maker not satisfied respondent's fear of returning to Pakistan well founded – Whether such findings involved findings of jurisdictional fact – Whether illogicality or irrationality in a finding of jurisdictional fact – Whether jurisdictional error. Words and phrases – "illogicality", "irrationality", "jurisdictional error", "satisfied". Migration Act 1958 (Cth), ss 36, 65, 430(1)(b). GUMMOW ACJ AND KIEFEL J. A criterion for the issue of a protection visa under the Migration Act 1958 (Cth) ("the Act") is that the applicant be a non-citizen of Australia to whom the Minister "is satisfied" that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 36(2)(a) of the Act so provides[1]. If the Minister "is satisfied" that this and other criteria "have been satisfied" then the Minister "is to grant the visa"; if "not satisfied", then the visa must be refused (s 65(1)). The term "satisfy" has various shades of meaning. Two of them are involved in the collocation presented by ss 36 and 65 of the Act. One is that the applicant for a protection visa answers or meets the requirement or condition that Australia has protection obligations to the applicant. The second is that the decision maker accepts or is content that the applicant answers or meets that requirement or condition. Upon review by the Refugee Review Tribunal ("the RRT") of a refusal by the Minister (or the delegate of the Minister), the RRT exercises all the powers and discretions conferred by the Act upon the Minister (s 415(1)). The reiteration in ss 36 and 65 of the Act of the term "satisfied" is significant for the issues on this appeal by the Minister from the decision of the Federal Court (Moore J)[2]. The Federal Court allowed an appeal from the Federal Magistrates Court (Scarlett FM)[3] and quashed the decision of the RRT (the second respondent). Moore J held that the RRT had fallen into jurisdictional error because its determination that the first respondent was not a refugee was based on illogical or irrational findings or inferences of fact[4] and remitted the matter to the RRT to be heard and determined according to law. The RRT had affirmed the decision of a delegate of the Minister to refuse the grant of a protection visa to the first respondent. In this Court the RRT entered a submitting appearance. The avenue of judicial review It is important for an understanding of the issues in this case to appreciate that it does not arise under one of the systems of review of administrative decisions which are established by laws of the Commonwealth and under which the grounds of review are not limited to those involving jurisdictional error. In particular, the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") includes as grounds of review that the decision "involved an error of law" (s 5(1)(f)) and that there was no evidence or other material to justify the decision (ss 5(1)(h) and 5(3)). However, the ADJR Act does not apply to the class of decisions with which this case is concerned[5]. This was not always so. Important decisions of this Court, including Chan v Minister for Immigration and Ethnic Affairs[6] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang[7], were given in appeals where the jurisdiction of the Federal Court was conferred by the ADJR Act. In these cases the grounds of review principally in contention were that the decision "involved an error of law" (ADJR Act, s 5(1)(f))[8], or was so unreasonable that no reasonable person could have exercised the power (ss 5(1)(e) and 5(2)(g))[9]. The broader focus of the ADJR Act meant that on the one hand the Court was not concerned with the finding of jurisdictional facts and on the other there was an apprehension that an overbroad review of fact-finding would lead to impermissible "merits review". As will appear, the only avenue of judicial review in the present case was that rooted in s 75(v) of the Constitution itself and that required jurisdictional error to quash the administrative decision in question. This is because the privative clause provision found in s 474 of the Act, as interpreted in Plaintiff S157/2002 v The Commonwealth[10], was ineffective to exclude judicial review by the Federal Magistrates Court and on appeal to the Federal Court on the ground of jurisdictional error. The facts The first respondent is a citizen of Pakistan, born there in 1965. He is a Sunni Muslim. His first language is Urdu and he gave evidence before the RRT through an interpreter. On 3 July 2007 he arrived in Australia on a visitor visa valid for three months and on 16 August lodged his application for a protection visa. In that application he said that he sought a protection visa "on the basis of my [belief] and practice of homosexuality". That application presented several issues respecting the Convention definition of refugee. One was whether the first respondent was a member of "a particular social group", another was whether, if so, he had a "well-founded fear" of persecution for reason of membership of that social group. There had to be both a state of mind, the fear of persecution, and a well-founded basis, in an objective sense, for that fear. None of this is controversial and the RRT recognised the existence of these issues. The dispute concerns the manner in which the RRT dealt, or failed to deal, with them. The RRT held that it did "not accept that the [first respondent] will engage in [homosexual activities] or intercourse in the future, and therefore [it did not accept] that he will face persecution due to his membership of a particular social group (being a homosexual), whether actual or perceived". The RRT concluded that there was no real chance that the first respondent would face persecution due to any Convention reason if he were to return to Pakistan now or in the reasonably foreseeable future. Accordingly, the RRT decided that it was satisfied that the first respondent did not satisfy the criterion for the issue of a protection visa. In essence, the RRT appears to have accepted that male homosexuals in Pakistan comprised a particular social group[11], but to have rejected the claim of the first respondent to membership of that group and thus his claim of a well-founded fear of persecution. The dispute concerns the adverse inferences which the RRT drew from its rejection of the account given by the first respondent of his personal history. These inferences led the RRT to the conclusion that he would not act in a certain way in the future and was not a member of the relevant social group. From this conclusion the RRT derived satisfaction that the first respondent was not a person to whom Australia owed protection obligations. The account given by the first respondent of his personal history was summarised by Moore J as follows[12]: "In 1991 he married his wife, and had four children from that relationship. In 1995 he travelled from Pakistan to the United Arab Emirates (UAE) where he worked in a factory. He returned to Pakistan in 1998. He remained in Pakistan until 2004 when he returned to the UAE. He finally left the UAE in July 2007 when he travelled to Australia. During the period October 2005 to July 2007 he developed an attraction to members of the same sex. In July 2006 [while in the UAE] he commenced a homosexual relationship with a man called Mr R. By the end of 2006 they were living together. At some point the applicant and Mr R commenced a sexual relationship with a third person, Mr H. Mr R had earlier been in a sexual relationship with Mr H (who was Mr R's boss). The applicant travelled to the United Kingdom in October 2006, returning to the UAE in December 2006. While in the UK he did not apply for a protection visa. In January 2007 the applicant discovered that Mr H was addicted to illicit drugs and was having unprotected sex with others. In March 2007 the applicant spoke to Mr H about this matter and Mr H became very angry and the applicant was bashed and threatened. The applicant and Mr R ran away from Mr H and went into hiding. In May 2007 the applicant returned briefly to Pakistan, and left again in June 2007 to return to the UAE. Shortly after, he travelled to Australia." As Moore J noted, it was central to the reasoning of the RRT that the first respondent was not a homosexual[13]. Before turning to consider what his Honour held were the defects, fatal to the exercise by the RRT of its jurisdiction, in the inferential reasoning to that conclusion, something should be said of the importance for this case of the doctrine of jurisdictional error, and its constitutional under-pinning. It is the operation of that doctrine which marks this case off from those in which judicial review is attempted for alleged factual error not going to jurisdiction. Jurisdictional error Of the distinction between jurisdictional and non-jurisdictional error in the setting of the Australian Constitution, Justice Selway, writing extrajudicially, said[14]: "Notwithstanding the difficulty, indeed often apparent artificiality, of the distinction, it is a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised. Such a distinction is inherent in any analysis based upon separation of powers principles." In Plaintiff S157/2002[15], Gaudron, McHugh, Gummow, Hayne and Kirby JJ said: "Because, as this Court has held, the constitutional writs of prohibition and mandamus are available only for jurisdictional error and because s 474 of the Act does not protect decisions involving jurisdictional error, s 474 does not, in that regard conflict with s 75(v) of the Constitution and, thus, is valid in its application to the proceedings which the plaintiff would initiate." The constitutional jurisdiction has its origins in the control exercised by the English courts to prevent administrative authorities exceeding their authority or neglecting their duties. The execution of the laws made by the Parliament was seen as an aspect of the executive power[16]. There was no distinct concept of public administration as developed in some civilian systems[17]. In the English system the "jurisdictional fact" was an appropriate marker for the enforcement of legality; how much further the field for judicial review of administrative action extended remained a matter of debate. It is in this setting that the statement of general principle by Brennan J in Attorney-General (NSW) v Quin[18] is to be understood. His Honour said: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." In his work Administrative Law, Professor Paul Craig describes jurisdictional facts as those relating to the existence of the power of a public body over the relevant area and continues[19]: "The statutory conditions thus laid down may be factual, legal or discretionary in nature. A classic factual precondition is that a person should be of a particular age to qualify for a benefit; a simple legal stipulation is provided by the meaning of the term employee; a discretionary precondition is where the statute provides that if a minister has reasonable grounds to believe that a person is a terrorist then he may be detained. Claims of factual error can arise in all three types of case. It might be argued that the agency simply got the applicant's age wrong because it confused the applicant with a different person. It might be claimed that the agency misapplied the legal meaning of the term employee to the facts of the applicant's case. It might be contended that the minister did not on the facts have sufficient material to sustain a reasonable ground for believing that the applicant was a terrorist." The criterion for attraction of the jurisdiction of the decision maker in deciding an application under the Act for a protection visa is not expressed in terms of "fact" as simply understood. Rather, as explained earlier in these reasons, the Act fixes upon a criterion of "satisfaction" as to the existence of a certain state of affairs respecting the status of the applicant. In that regard, a statement of principle by Lord Wilberforce made in 1976, before the tectonic shifts in English public law which occurred in later decades, is of first importance. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council[20], his Lordship said of a provision conditioning the power of the Secretary of State to act upon satisfaction as to a certain state of affairs: "The section is framed in a 'subjective' form – if the Secretary of State 'is satisfied'. This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, [and] whether the judgment has not been made upon other facts which ought not to have been taken into account." (emphasis added) The essence of the case upon which the first respondent succeeded in the Federal Court was that in attaining the satisfaction required by the Act, the RRT did not make its judgment upon a proper self direction as to the inferences to be drawn from its rejection of the factual account given by the first respondent. In Australia, as Basten JA recently observed[21], the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd of the terms "arbitrary, capricious, irrational" as well as "not bona fide" to stigmatise the formation of an opinion upon which a statutory power was enlivened[22]. Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open[23]. A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction[24]. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact[25]. These considerations have added significance where the law in question is made by a legislature of limited powers. Thus, in Australia a jurisdictional fact may also be or include a constitutional fact. An example would be a criterion of liability that required the satisfaction of a non-curial decision maker that a propositus answer the description of a trading or financial corporation formed within the limits of the Commonwealth. If that satisfaction were not examinable on judicial review, the result, as the Australian Communist Party v The Commonwealth[26] teaches, would be that the legislation could rise higher than its constitutional source. These considerations apply in the present case. No doubt, the first respondent being an alien, a Pakistani national, the Act applies to him as a law with respect to that alienage. But the answer to the question posed by ss 36 and 65 as to the application of the definition of "refugee" determines whether in its operation upon the first respondent the Act also is supported as a law with respect to external affairs. In England the distinction between jurisdictional and non-jurisdictional facts has fallen into deep disfavour and broader notions of the scope of judicial review have been developed and applied by the English courts. The submissions for the Minister by the Commonwealth Solicitor-General in significant measure sought to discourage any such development by this Court in applying s 75(v) of the Constitution. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam[27] there was some consideration of the difficulties in Australia with the recent English authorities respecting review on the ground of "abuse of power" through the alteration of policy to frustrate unfairly the "legitimate" expectations of the individuals seeking review. No such ground was relied on by the first respondent. Nor does the present case require consideration of a doctrine of proportionality to review the exercise of a discretion where there is lacking an appropriate relationship between ends and means[28]. Still less is this the occasion to consider the development in Canada of a doctrine of "substantive review" applied to determinations of law, of fact, and of mixed law and fact made by administrative tribunals. Of substantive review, the Supreme Court of Canada recently said[29]: "The current approach to judicial review involves three standards of review, which range from correctness, where no deference is shown, to patent unreasonableness, which is most deferential to the decision maker, the standard of reasonableness simpliciter lying, theoretically, in the middle. In our view, it is necessary to reconsider both the number and definitions of the various standards of review, and the analytical process employed to determine which standard applies in a given situation. We conclude that there ought to be two standards of review – correctness and reasonableness." It may, however, be noted that the Supreme Court was not dealing with a system of judicial review created by statute, such as a counterpart of the ADJR Act. Rather, in Canada "the inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss 96 to 101 of the Constitution Act 1867"[30]. The determination of this appeal turns on the application of the doctrine of jurisdictional error, implicit in s 75(v) of the Constitution, to a legislative criterion expressed in terms of the satisfaction of the RRT. Writing after the decision in Tameside, Professor Craig said[31]: "The general approach now is for the courts to require that a minister produce reasonable grounds for his action, even where the jurisdictional fact is subjectively framed." In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal[32], Wilcox J carefully, and with respect correctly, distinguished a "no evidence" ground respecting the existence of a jurisdictional fact, from the more debatable question (which does not arise in this appeal, as counsel for the first respondent stressed) of defective fact finding as an independent ground of judicial review, or as indicative of an "error of law" within the meaning of the ADJR Act. The importance of reasons Professor Wade wrote that a system of judicial review which cannot cope with crucial questions of fact necessarily is seriously defective[33]. In Australia that deficiency is alleviated by requirements in various laws, notably s 13 of the ADJR Act and its progeny in State legislation[34], for the obtaining of reasons for the decision. Section 430(1) of the Act is such a provision. Its operation in the present dispute is to lay out, more clearly than otherwise would be the case, the field upon which these operate the considerations mentioned, for example, by Lord Wilberforce in Tameside and Latham CJ in Connell. Section 430(1) obliged the RRT, in making its decision, to prepare a written statement setting out its decision (par (a)), its reasons for the decision (par (b)), the findings on any material questions of fact (par (c)) and referring to the evidence or any other material on which those findings of fact were based (par (d)). The obligation is to set out the findings on what the RRT considers to be material questions of fact; this focuses upon the thought processes of the decision maker, and may disclose jurisdictional error[35]. Many of the leading authorities in this Court in which administrative decisions were challenged concerned legislative regimes in which there was no counterpart of s 430 of the Act. The decisions at stake in those cases presented an inscrutable face. Thus, in Avon Downs Pty Ltd v Federal Commissioner of Taxation[36], s 80(5) of the Income Tax Assessment Act 1936 (Cth) required the taxpayer company, if prior losses were to be allowed deductions, to satisfy the Commissioner of the state of its voting power on the last day of the year of income. No reasons were given by the Commissioner for the disallowance of the taxpayer's objections to its assessment. In that context Dixon J explained[37] the circumstances in which the conclusion of the Commissioner was liable to review by the court. Likewise, the inadequacy of the material before the decision maker may support an inference that the decision maker has applied the wrong test or was not "in reality" satisfied of the requisite matters[38] or from the absence of reasons the court may infer the absence of any good reason[39]. On the other hand, of provisions such as s 430, it was said in Wu Shan Liang[40] that the reasons are meant to inform and, upon judicial review, are not to be scrutinised in an over-zealous fashion. In that case, where the refugee status of the respondent was at stake, the Court said of the use by the decision maker of the term "speculative"[41]: "The word 'speculative' in the context in which it appears need not amount to a denial of the delegates' function of assessment of future chances of persecution. Rather, the word might equally have been used to refer to the probative force of the material before the delegate." Here the RRT did give reasons in response to the requirement of s 430(1). The issue is whether, having regard to those reasons and without the necessity for a process of divination undertaken in the earlier authorities dealing with other legislation, the RRT fell into jurisdictional error to attract the remedy provided by the Federal Court. SGLB The ascertainment of the relevant jurisdictional error, if there be one, must fix upon the treatment of the requirement mandated by s 65 of the Act that the decision maker be "satisfied" that there is "satisfied" the criterion that the applicant is one to whom the decision maker is satisfied under s 36(2)(a) that Australia owes protection obligations. In dealing with that question two distinctions must be made. They are foreshadowed in what has been said earlier in these reasons. The first is that the first respondent does not assert any general ground of jurisdictional error of the kind disfavoured by Mason CJ[42] where there were alleged deficiencies in what might be called "intra-mural" fact finding by the decision maker in the course of the exercise of the jurisdiction to make a decision. The apprehensions respecting "merits review" assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed. There the imperatives are the separation of powers considerations to which Justice Selway referred. The second distinction concerns attacks upon the exercises of discretionary power which are said to be unreasonable in the sense attributed to Associated Provincial Pictures Houses Ltd v Wednesbury Corporation[43]. The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts[44]. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review[45] will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view. It was against this background that, when considering s 65 of the Act in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[46], Gummow and Hayne JJ said: "The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned[47]. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415). The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds[48]. If the decision did display these defects, it will be no answer that the determination was reached in good faith." However, it should be remarked that what is characterized as the "critical question" should not receive an affirmative answer that is lightly given. It may be noted that the outcome in SGLB and in Applicant S20/2002 was to deny the presence of jurisdictional error. This reflected the approach upon judicial review earlier expressed in Wu Shan Liang to which earlier reference has been made. Similar reasoning to that found in SGLB has been applied by the Full Court of the Federal Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs[49], which in turn was followed in authorities including the decision of Gordon J in SZLGP v Minister for Immigration and Citizenship[50], upon which Moore J particularly relied in the present case. The Minister submitted that there was no occasion for a redetermination by the RRT, as ordered by the Federal Court. This was because the above line of authority should be disowned, essentially for the apprehended fear of "merits review". But, as indicated in these reasons, that submission should be rejected. It gives insufficient weight to the importance of s 75(v) of the Constitution in ensuring that the legislative expression of jurisdictional facts in terms of satisfaction or opinion of a decision maker does not rise higher than its source. Conclusions The RRT fixed upon two matters as "inconsistent" with the first respondent's claimed fear of persecution and founding its refusal to accept "that the [first respondent] had engaged in homosexual activities in the UAE". The first was his visit to Pakistan for three weeks in May-June 2007, to spend time with his children and to finalise his relations with his wife, before he returned to the UAE and then to Australia. The RRT reasoned that if genuinely fearful of serious harm upon disclosure in Pakistan of his homosexuality, the first respondent would not have travelled there even for a short time. The second matter was that the first respondent had failed to seek protection when he visited the United Kingdom in 2006. His evidence was that, given what were then his favourable personal circumstances in the UAE, there was no reason to seek protection in the UK. The RRT said that the first respondent had been "unable to explain [to its satisfaction] why he preferred at the time to hide his homosexuality for years to come rather than to seek protection". This process of reasoning is based on two assumptions: that an applicant for a protection visa would not return, albeit briefly, to a country in which persecution is feared, and that a claimant fearful of persecution would seek asylum elsewhere at the first available opportunity. It was these assumptions which led the RRT to the conclusion that the conduct of the first respondent was inconsistent with his claim to fear persecution. The assumptions may be logical or rational if the person claims to fear persecution on the grounds of a physical feature such as race or some other feature that is known or likely to be apparent to others within the country. However, the same cannot be assumed where the claimed fear is based on such grounds as those of sexual identity or political opinion or religious belief in the absence of circumstances that may indicate otherwise. The reasoning of the RRT appears to have proceeded on the basis that a person outside Pakistan but with a real fear of persecution as a homosexual in Pakistan would not go there at all and would seek protection as a refugee at the first opportunity. Reasoning of this nature insufficiently appreciates a point made by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[51]. This is that in considering whether a particular applicant for a protection visa has a well-founded fear of persecution by reasons of membership of a social group identified in terms of sexual identity: "Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity." Further, counsel for the first respondent correctly emphasised that there is essentially an individual character to "membership" of a particular social group. As McHugh and Kirby JJ put it in Appellant S395/2002[52], a claimant to refugee status is asserting an individual right not merely undifferentiated membership of a group, and as Gummow and Hayne JJ put it[53]: "The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made[54]." (original emphasis) So it is that, for example, a person may engage in sexual activity (and, indeed, in religious worship or political activity) in one country rather than another without necessarily denying a claim to protection under the Convention. With respect to the first matter relied upon by the RRT, the return to Pakistan in May-June 2007, the evidence of the first respondent was that he had kept a low profile during the visit to avoid trouble with anyone. The social group of which he asserted membership had the characteristic that membership would not be perceived unless disclosed. The RRT acted on an assumption that if the first respondent had the sexual identity he claimed there was a very real prospect that this would be disclosed by some means during his short visit, that he would have had that apprehension and would not have visited his family before going to Australia. The RRT gave no attention to the question of how it could have become known to the family of the first respondent or to anyone else in Pakistan that he was a homosexual, and made no findings upon it. The absence of the logical connection between the evidence and the reasons of the RRT's decision became apparent when the RRT assumed that a homosexual would be fearful of returning to Pakistan without there being any basis in the material to found this assumption or to counter the possibility that the sexuality of such a person could be concealed from others in the short period of return to the country. Indeed, the first respondent said that he had made other short visits to his family in Pakistan from the UAE before that of May-June 2007. These visits had not led to any adverse disclosure. With respect to the second matter, the visit to the United Kingdom in 2006, there was nothing before the RRT which provided any ground for rejecting the explanation given for failure to seek protection at that time. The desire of the first respondent to continue to reside in the UAE, where "at the time he did not have any problems" and had "a good relationship", instead of seeking to reside in a country far removed from his then good relationship, says nothing as to the credibility of the first respondent's claim to fear persecution in Pakistan. It should also be noted that the RRT did not express its conclusion upon any view as to the manner in which the first respondent had given his evidence before the RRT. Rather it gave a lengthy summary of his evidence and then reasoned from the two deficiencies it saw in his account. To decide by reasoning from the circumstances of the visits to the United Kingdom and Pakistan that the first respondent was not to be believed in his account of the life he had led while residing in the UAE was to make a critical finding by inference not supported on logical grounds. The finding was critical because from it the RRT concluded that the first respondent was not a member of the social group in question and could not have the necessary well-founded fear of persecution. The Federal Court was correct to quash the decision and to order a redetermination by the RRT. Orders The appeal should be dismissed with costs. HEYDON J. I adopt the statement of facts made and the abbreviations employed by Crennan and Bell JJ. The question is whether the Federal Court was wrong to respond to a point taken for the first time in that court by characterising the reasoning of the Tribunal as having "simply no basis", as being "completely unsustainable as a piece of logical analysis", and as "based squarely on an illogical process of reasoning". The conclusion urged by the Solicitor-General of the Commonwealth on behalf of the appellant is that the Tribunal's fact-finding was not, on any view, open to these characterisations. That submission is correct, substantially for the reasons that he advanced. It is desirable to consider the nature of the persecution that the first respondent claimed to fear, and the reactions of the Tribunal member to the first respondent's claims in respects other than the two particular issues on which the appeal turns, before going to those two issues. Persecution The nature of the persecution. The first respondent contended that he had good explanations for deciding to return to Pakistan for three weeks in 2007 and for not seeking asylum in the United Kingdom in 2006. In assessing those explanations it is important to bear in mind what his claim for a Protection (Class XA) Visa entailed. That is because the greater the harm he believed would flow from people in Pakistan coming to know of his conduct, the less likely it is that he would return to Pakistan or fail to seek asylum in the United Kingdom. The first respondent claimed to have a well-founded fear of being persecuted for reasons of membership of a particular social group. Section 91R(1) of the Act provides that persecution must involve "serious harm" to the first respondent and "systematic and discriminatory conduct". Section 91R(2) provides: "Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist." While s 91R(2) does not provide an exhaustive definition of "serious harm", the circumstances it sets out do powerfully illustrate the gravity of the kinds of harm which that expression captures. The persecution claimed by the first respondent: the Department. The first respondent's solicitor informed the appellant's Department in writing that in Pakistan homosexuality was punishable by a seven year jail sentence, that society discriminated against homosexuals to an extreme degree, that homosexuality was a matter of shame and embarrassment for the person involved and his or her family, and that the Government of Pakistan did not provide protection to homosexuals. The persecution claimed by the first respondent: the Tribunal. Before the Tribunal, in oral evidence, the first respondent said that the only harm he feared was that, if he returned to Pakistan and his family came to know about the way of life he was living in Australia, he, his daughters and his family (including his brothers and sisters) would feel ashamed and they would all "die of shame". The persecution claimed by the first respondent: the Federal Magistrates Court. Before the Federal Magistrates Court, the first respondent contended, in writing, that if he returned to Pakistan he could not survive there, that there are severe punishments there for the practice of homosexuality, and that persons accused of that practice could be put to death by stoning. He also contended that it was impossible to live as a homosexual in Pakistan because homosexual conduct was deemed to be very shameful and those practising it were boycotted in all fields of life: he would die unless he were allowed to lead a homosexual lifestyle. These contentions were put somewhat more strongly than they had been earlier, but, accepting them as sincere, it may be inferred from them and from the earlier forms in which he put his claim that the first respondent had an extremely strong fear of, antipathy against and revulsion to the conditions in Pakistan of which he spoke[55]. Bases for the Tribunal's ultimate conclusion. The ultimate conclusion at which the Tribunal member arrived was that there was no real chance that, if the first respondent were to return to Pakistan, he would face persecution in the reasonably foreseeable future. The reasons for arriving at that ultimate conclusion may be divided into categories. The first two categories are related to the Tribunal's reasoning about the first respondent's visits to Pakistan in 2007 and the United Kingdom in 2006. But they were not the only categories into which the Tribunal's reasoning fell. There were four others. The third category related to the Tribunal's inability to accept that the first respondent had engaged in homosexual activities in Australia in the seven and a half months between his arrival and the oral hearing in the Tribunal. The first respondent claimed that, because of the need to be cautious about disease, he had limited those activities to a one night stand with a person whose name he did not ask. But he also claimed to have searched websites with a view to establishing relationships. The Tribunal said: "The Tribunal finds the [first respondent's] explanation about his very limited involvement in homosexual activities in Australia to be implausible as, despite the apparent fear of disease, the [first respondent] claimed to have engaged in a relationship with an unknown partner. The Tribunal also finds that visiting websites without indicating one's preferences does not indicate that the [first respondent] was looking for same sex partners or that he would be perceived as having done that. The Tribunal does not accept that the [first respondent] had engaged in homosexual activities in Australia." The fourth category related to the first respondent's claim to have engaged in homosexual activities at school. The Tribunal did not accept that this conduct, if it took place, was indicative of the first respondent's desire to repeat it as an adult. The fifth category concerned newspaper articles and reports which the first respondent provided to the Tribunal about homosexuality in Islam. The Tribunal said: "[t]hese are not specifically about the [first respondent] and the Tribunal does not view these as supporting the [first respondent's] claims that he is a homosexual." The sixth category concerned a report from a doctor. Apart from the Tribunal member's reference to some inconsequential spelling errors, she gave the report no weight because its conclusions were based primarily on the history which the first respondent had given. In this Court the first respondent made no complaint about the Tribunal's reasoning in relation to the third, fourth, fifth and sixth categories. While the Tribunal member's specific comments in relation to the fourth, fifth and sixth categories were not critical of the first respondent's credibility, this was not the case for her comments in relation to the third category. She completely disbelieved him. It is necessary now to turn to the two parts of the Tribunal's reasoning which the Federal Court attacked. The visit to Pakistan in 2007 The key part of the Tribunal's reasoning about the first respondent's visit to Pakistan in 2007 is quoted by Crennan and Bell JJ[56]. So is the material part of the Federal Court's reasoning[57]. The reasoning of the Tribunal member may be summarised as follows. Although she did not say so in terms, it is plain that she selected as her major premise the proposition that persons who claim to fear serious harm arising from their conduct if it becomes known in their country of origin – including death through shame to themselves, their wives, their daughters, their brothers and their sisters – are likely to have so strong a revulsion to the conditions and dangers in their country of origin which made these outcomes likely that they will not return to it. The minor premise was that the first respondent did return to his country of origin. The conclusion was that he probably did not in fact fear serious harm of the kind claimed. The Tribunal's reasoning rested on the idea that there was an inconsistency between the first respondent fearing certain perils if his application for a protection visa were rejected and he returned to Pakistan, and his failure to fear those perils when he went there voluntarily in 2007. The Federal Court's criticism was that the Tribunal's reasoning did not explain how the first respondent's conduct would have become known in Pakistan. The answer to the criticism is that the case put by the first respondent makes it necessary to assume that it will become known. It was for the first respondent to establish his claim, not for the Tribunal to disprove it. He had the opportunity to establish his claim without being trammelled by the requirements of the rules of evidence. He invited the Tribunal to reach a conclusion based on what he said were the probabilities of ordinary life in Pakistan. A necessary integer of success in the first respondent's claim of persecution was the proposition that it would be discovered that the first respondent was a practising homosexual. The first respondent did not explain in support of his own case how that proposition would be made good, any more than he explained in answer to the Tribunal's questioning why the proposition was not true in relation to his visit in 2007. However, as the Tribunal was asked to accept the proposition in order to uphold the first respondent's claim that he was in peril of persecution in Pakistan, it was not illogical for the Tribunal also to accept the proposition in order to test the first respondent's apparent position that his visit to Pakistan in 2007 carried no peril of persecution. The Federal Court reasoned that the illogicality lay in assuming that others would discover that the first respondent was a practising homosexual during "the brief period of his visit". But for the Tribunal to assume, in the first respondent's favour, that if he returned to Pakistan for an indefinite period that fact would become known is not inconsistent with assuming that it would become known during a briefer period. It cannot be said that there is any illogicality. And it cannot be said, as the Federal Court did, that there "was simply no basis" for the Tribunal's conclusion. If the only relevant factor were the duration of the visit to Pakistan, the longer the period of the visit to Pakistan, the more likely it was that the fact would become known. The shorter the period, the less likely it was that the fact would become known. But that does not establish that there was no basis for the Tribunal's conclusion. The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion. There is a further difficulty in relation to the Federal Court's attacks on the reasoning of the Tribunal member. The means by which the first respondent's family or anyone else in Pakistan would discover facts about the first respondent which he claimed he wished to conceal were not limited to those flowing from his physical presence in Pakistan. If the facts were discovered, the impact would be felt in Pakistan. But the facts could be discovered independently of the first respondent's presence in Pakistan. The facts could be discovered, for example, through messages out of the United Arab Emirates via correspondence, telephone or other electronic means, or through reports of Pakistanis coming home from the United Arab Emirates. That diminishes the significance of the length of the first respondent's trip: for even if its brevity reduced the chance of the facts being discovered from the first respondent's mere presence in Pakistan, it did not reduce the chance of persecution taking place as a result of communications during the previous 20 months. On one reading of the Tribunal's reasons, it was dealing only with the three week visit to Pakistan in 2007. That was the reading advanced by the first respondent. But before the passage quoted by Crennan and Bell JJ[58], the Tribunal did state: "A copy of the [first respondent's] passport ... indicates that the [first respondent] had travelled to UAE on numerous occasions and that he returned to Pakistan." The first respondent confirmed this in his evidence, and said that during the period October 2005 - July 2007, in which he claimed to have developed an attraction to people of his own sex, he went to Pakistan many times. On one view, the more numerous the visits the stronger the Tribunal's point; but since this aspect of the controversy was not fully developed in argument it is better not to deal with it. The visit to the United Kingdom in 2006 The difference between the Tribunal and the Federal Court in relation to the first respondent's visit to the United Kingdom in 2006 centred on his explanation for not claiming asylum in the United Kingdom. In view of a dispute between the parties as to the construction of the Tribunal's reasons, it is desirable to set the relevant part out: "the [first respondent] had indicated that he had travelled to the [United Kingdom] in 2006 but did not seek protection there because he had a good life in the [United Arab Emirates] and was in a good relationship with [R]. However, the [first respondent's] claims are directed at Pakistan where he claims to have feared persecution due to his homosexuality. The [first respondent] was unable to explain to the satisfaction of the Tribunal why, if he was fearful of his homosexuality becoming apparent to his family or to others in Pakistan, he would take no action to seek protection despite having a good relationship with [R]. The [first respondent] appeared to suggest that he had nothing to fear until his relationship with [H] deteriorated. However, this appears to be inconsistent with his claim that he was fearful of being perceived, or of being found to be, a homosexual upon his return to Pakistan, not of being discovered as being in a relationship with [H]. The [first respondent] was unable to explain to the satisfaction of the Tribunal why he preferred at the time to hide his homosexuality for years to come rather than seek protection." (emphasis added) The material parts of the Federal Court's comments about this passage are quoted by Crennan and Bell JJ[59]. The first respondent's explanation was offered in order to explain his failure to seek asylum in the United Kingdom. What he claimed to fear was persecution in Pakistan on certain grounds. The likelihood or unlikelihood of persecution on those grounds in Pakistan is the same whether the first respondent had a good or a bad life in the United Arab Emirates, whether the first respondent's relationship with R was good or bad, and whether his relationship with H moved from being good to being bad. The question is whether knowledge in Pakistan that the first respondent was a practising homosexual would create a risk of persecution. The greatness or smallness of that risk did not necessarily depend on the particular identities of the persons with whom the first respondent had his relationships or the quality of those relationships. The point made in the last sentence quoted above from the Tribunal was put by the Tribunal member more vividly when she asked the first respondent: "Why not apply for the protection visa when you had the opportunity instead of trying to keep something that is so central to your life secret for years and years to come?" The Tribunal plainly thought that the first respondent's explanation for his failure to apply for a protection visa in the United Kingdom was damaging to his credibility. Whether or not all minds would share that thinking, it is not thinking which is illogical. Another criticism which the Federal Court made of the Tribunal's logic arose in relation to the second last sentence in the Tribunal passage quoted above, commencing "However"[60]. In that passage the words "inconsistent with" do not mean "logically contradictory of". They mean only that whatever "this" is points against or renders less probable the first respondent's claim. What is "this"? The Federal Court considered that the word "this" in that sentence referred to the previous sentence. If so, it was open to the Tribunal to see a logical connection – in the sense of a connection relating to probabilities – between the two sentences for reasons already given: the risk of persecution in Pakistan did not depend on the deterioration of the first respondent's relationship with H, but rather on information being received in Pakistan that the first respondent was a practising homosexual. On the other hand, the word "this" may refer not to the preceding sentence, but to the topic dealt with in the entire paragraph, namely the first respondent's failure to seek asylum in the United Kingdom. So read, the second last sentence is stating that the first respondent's failure to seek asylum pointed as a matter of probability against a fear of persecution on returning to Pakistan. The difference between the Federal Court and the Tribunal may be put thus. The Federal Court thought that the first respondent's explanation for not seeking asylum in the United Kingdom was "perfectly plausible". There are pejorative meanings of the word "plausible", but they are not the meanings which the Federal Court was conveying. The Federal Court was saying that the explanation was "capable of being believed" or "apparently believable". The Tribunal, however, did not believe it. Something can be capable of being believed without actually being believed. For the Tribunal member to withhold belief from something which is "perfectly plausible" but which she did not find to have been satisfactorily explained and which she found not to be probable is not illogical. Other issues As the Tribunal's reasoning was not illogical, it is not necessary to determine any of the questions of law about which the parties were in controversy. Orders The orders sought by the appellant and not opposed in form by the first respondent correspond with the substance of the condition imposed when special leave was granted. Subject to one point, they are the orders which ought to be made. The effect of order 2 in this Court is to leave standing order 6 in the Federal Court of Australia. That order was that the appellant in this Court pay the costs of the first respondent in this Court of the proceedings before the Federal Magistrates Court and the Federal Court. To avoid doubt, it is necessary to set aside order 2 made by the Federal Magistrates Court, which ordered the first respondent in this Court to pay the costs in that Court of the appellant in this Court. The orders are: 1. The appeal be allowed. Orders 3, 4 and 5 made by the Federal Court of Australia on 10 March 2009 be set aside. In place of those orders: a) the appeal to the Federal Court of Australia be dismissed; and b) Order 2 made by the Federal Magistrates Court of Australia on 8 July 2008 be set aside. The appellant pay the reasonable costs of the first respondent of the appeal to this Court.

CONVEYANCING [134]- Torrens title- Caveats- Plaintiff real estate agent purchases property from defendant- Defendant claims property purchased at under value in breach of fiduciary duty- Defendant lodges caveat- Held no caveatable interest. EQUITY [102]- Trusts and trustees- Constructive trusts- Whether plaintiff holds profits from resale of property on constructive trust for defendant- Original sale at under value not sufficient in itself to establish unconscionability- Trust not imposed- Order for equitable compensation more appropriate.

CRIMINAL LAW - appeal against sentence - methylamphetamine - knowingly take part in manufacture - not less than the commercial quantity - supply - parity - degree of involvement - personal circumstances - guilty plea - backdating of term of imprisonment - influence of prior convictions - having regard to whole criminal enterprise

Federal Court of Australia – Powers – Restriction of publication of evidence – Section 50 of Federal Court of Australia Act 1976 (Cth) ("the Act") provided Federal Court may make such order forbidding or restricting publication of evidence as appears necessary to prevent prejudice to administration of justice or the security of the Commonwealth – Forensic decision to tender documents in evidence, under cover of s 50 order but pending further hearing – Order vacated at further hearing – Whether s 50 order no longer necessary to prevent prejudice to administration of justice – Whether inherent confidentiality sufficient to establish prejudice – Relevance of s 17(1) of the Act, requiring exercise of jurisdiction in open court, and relationship with s 50. Federal Court of Australia – Practice and procedure – Inspection of documents by non-party – Interests of open justice – Principles applicable to exercise of power to grant leave under Federal Court Rules, O 46 r 6(3) – Relevance of existing order made under s 50 of the Act. Words and phrases – "administration of justice", "confidential", "necessary". Federal Court of Australia Act 1976 (Cth), ss 17(1), 50. Federal Court Rules, O 46 r 6(3).

Immigration - Refugees - Application for permanent protection visa - Statute requiring Minister to be satisfied Australia owes protection obligations to the applicant under the Convention - Applicant previously granted temporary protection visa for a specified period - Whether previous grant of temporary protection visa entitles applicant on application for a new visa to a presumption of being owed protection obligations under the Convention - Construction of Migration Act 1958 (Cth), s 36 - Construction of the Convention. Words and phrases - "refugee", "protection obligations", "cessation". Migration Act 1958 (Cth), ss 5(1), 36. Convention relating to the Status of Refugees, Art 1A, Art 1C(5). Protocol relating to the Status of Refugees.

PROCEDURE – Costs – Security for costs – Other matters – whether proceedings should be stayed when security for costs has not been provided – whether consent order for security should be varied

PROCEDURE - Injunctions - Writ of possession executed and plaintiff put in possession of property - Defendant renters on same day - Whether permanent injunction should be granted restraining the defendant from entering, re-entering or remaining in possession - Whether cross on an indemnity basis should be granted

Immigration - Refugees - Application for permanent protection visa - Statute requiring Minister to be satisfied Australia owes protection obligations to the applicant under the Convention - Applicant previously granted temporary protection visa for a specified period - Whether previous grant of temporary protection visa entitles applicant on application for a new visa to a presumption of being owed protection obligations under the Convention - Construction of Migration Act 1958 (Cth), s 36 - Construction of the Convention. Words and phrases - "refugee", "protection obligations", "cessation". Migration Act 1958 (Cth), ss 5(1), 36. Convention relating to the Status of Refugees, Art 1A, Art 1C(5). Protocol relating to the Status of Refugees. GUMMOW ACJ. I agree generally with the reasons for judgment of Callinan, Heydon and Crennan JJ and in particular with the conclusion that the reasoning in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[1] produces the result that this appeal must fail. This conclusion is reached independently of any view of the construction of sub-ss (3), (4) and (5) of s 36 of the Migration Act 1958 (Cth) ("the Act"). The sufficiently decisive consideration is found in the use of the present tense in s 36(2) and the supporting considerations discussed in QAAH. Sub-sections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth)[2]. It would be a curious result if the outcome in the present case was owed only to such recent amendments and would have differed before the making of those amendments. Further, there are various issues of construction of sub-ss (3), (4) and (5) of s 36. Some of these I referred to in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji[3]. Others divided the Full Court in the present case. These matters do not require determination for an outcome in the present appeal which favours its dismissal. Special leave to appeal should be granted. The appeal should be taken as instituted and heard instanter and dismissed with costs. However, that would leave to the Full Court the question of costs as reserved by order 3 of its orders made on 12 May 2006.

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd Intellectual Property - Copyright - Infringement - Architect's drawings - Two companies formed a joint venture and purchased a development site - Director and shareholder of one of the companies in the joint venture also sole director and shareholder of architectural firm engaged as architect to prepare drawings for a development application - Consent received from local council for development in accordance with the drawings - Joint venturer's dispute - Site sold by trustees for sale - Purchaser of site on notice that architect sought to deny the purchaser's use of the drawings - Whether purchaser of site had an implied licence to use the drawings. Courts and judicial system - Apprehension of bias - Exchange between bench and counsel - Questioning of witness by trial judge - Whether trial miscarried on the ground of apprehended bias. Words and phrases: "apprehended bias", "implied licence", "joint venture" Copyright Act 1968 (Cth) ss 10(1), 202(1), 202(2). Conveyancing Act 1919 (NSW) s 66G. Environmental Planning and Assessment Act 1979 (NSW) ss 4(1), 78A-81, 95. Local Government Act 1993 (NSW) s 68. Real Property Act 1900 (NSW). GUMMOW ACJ. The Full Court of the Federal Court (Branson, Kiefel and Finkelstein JJ)[1] dealt first with what appears to have been argued as the main issue before the Full Court. This concerned the freedom of Concrete Pty Limited ("Concrete") to use the architectural plans and drawings in question without infringing copyright subsisting in them as original artistic works, within the meaning of ss 31 and 32 of the Copyright Act 1968 (Cth) ("the Act"). Having decided that issue adversely to Concrete and disagreeing with the outcome at the trial, the Full Court went on to consider the challenge to the conduct of the trial which had been put on a quite different footing, namely, the alleged apparent bias of the primary judge. The Full Court upheld that challenge. In proceeding in this way, the Full Court itself fell into error. The present respondents, Parramatta Design & Developments Pty Limited ("Parramatta") and Mr Fares, were permitted to present their arguments to the Full Court on inconsistent bases. If the bias submissions were to succeed, the remedy would be a retrial. If the copyright submissions were to succeed, the Full Court would itself provide the orders which should have been made and there would be no occasion to order a retrial. The Full Court so disposed of the appeal as to accept the bias submissions but without consequential relief. If allowed to stand uncorrected, this outcome would have the adverse consequences for the administration of justice to which Kirby and Crennan JJ refer in their reasons for judgment in passages with which I agree. The application by Parramatta and Mr Fares for leave to file out of time a cross-appeal in this Court should be granted, but the cross-appeal dismissed. As to the particular aspects of the conduct of the trial said to make out the complaint of apprehended bias, I agree with Callinan J and with Kirby and Crennan JJ that no such complaint is made out. In particular, the conclusion stated for the Privy Council in Almeida v Opportunity Equity Partners Ltd[2] by Lord Walker of Gestingthorpe applies in the present case. His Lordship said[3]: "[T]he judge's interventions were motivated, not by partiality, but by the wish to understand the evidence (which was often obscure and inconsequential) and to push on the trial process." There remains the copyright issue. Here I agree generally with what is said by Callinan J and by Kirby and Crennan JJ in their reasons for judgment and would add the following. Concrete sued Parramatta and Mr Fares for unjustifiable threats made actionable by s 202 of the Act. In its defence and cross-claim, Parramatta pleaded the subsistence of its copyright in the plans and drawings in question, entry by its related company, Landmark Building Developments Pty Ltd ("Landmark"), into a joint venture to develop an apartment complex on the site at Nelson Bay, the breakdown of the joint venture, the sale of the site to Concrete, the absence of any implied licence in the joint venture thereafter to use the plans and drawings, and the inability of Concrete by contract to receive a better title or licence to those plans or drawings than that vested in the joint venture parties. Two points should be noted as to the way in which the litigation was framed. First, there was no joinder by Parramatta of Landmark or of the other joint venturer, Toyama Pty Ltd ("Toyama") or its principals, Ms Haviland and Mr Rix. Secondly, Parramatta did not plead that any implied licence in favour of the joint venturers had been revocable by Parramatta and that Parramatta had effectively revoked that licence. Further, as Kirby and Crennan JJ point out in their reasons, the trial was not run on a basis of entitlement to revoke any implied licence; rather, the contention was that no such implied licence existed for want of satisfaction of a condition necessary for its existence. Presented in terms of the Act, the copyright issues in this Court are: (a) whether Concrete is liable to restraint against the doing in Australia, or the authorising of the doing in Australia, of any act comprised in the copyright in the plans and drawings, "without the licence of the owner of the copyright" within the meaning of ss 13(1) and 36 of the Act; and (b) whether, to the contrary of (a), Concrete has been the object of unjustifiable threats of proceedings for copyright infringement and itself has an action for groundless threats under s 202 of the Act. The Act contains a definition of "exclusive licence" (s 10(1)) which requires such a licence to be in writing and signed by the owner or prospective owner of the copyright; special rights are given to exclusive licensees (ss 117-125). No such licence is asserted by Concrete. However, any act of Concrete with respect to the plans and drawings will be treated under the Act as done with the licence of Parramatta if the doing of the act "was authorized by a licence binding [Parramatta as] the owner of the copyright" (s 15). Section 15 is an important provision for this case. It accommodates instances of what ordinarily would be called a sub-licence[4]. The section also encompasses cases where the existence and scope of an effective licence is found in a consent binding the copyright owner other than by reason solely of the principles of contractual consideration and privity. The facts and holding of the Privy Council in Mellor v Australian Broadcasting Commission[5] would present such a case. There the appellants were publishers of band music and were owners of the sole right of performing in public within Australia a large number of musical works arranged for performance by brass and military bands. They published pamphlets containing price lists of their sheet music and words stating that the music was free for public performance anywhere. The licence or consent thereby given included broadcasting by the Australian Broadcasting Commission of band performances, with any necessary consequences of such broadcasting, including the use of wirelesses by listeners. The Commission had engaged bands, which had purchased the appellants' sheet music, to play some of the copyright works of the appellants and had caused the performances to be broadcast[6]. It is here that the nature and scope of the joint venture in which Parramatta, Landmark and Toyama participated becomes critical. No written agreement was made recording the terms of the joint venture. Title to the development site was registered for a tenancy in common as to two-thirds for Landmark and one-third for Toyama. The land subsequently was sold in the circumstances explained in the other reasons for judgment. Title to the copyright of Parramatta was not conveyed by Parramatta to Landmark and the other members of the joint venture. However, the plans were made available for the purposes of the joint venture, in particular to procure the grant of the development application, an essential step to achieve the development of the site. Landmark had a substantial financial interest in that development and its proceeds, and Mr Fares, sole director and shareholder in Parramatta, was a principal of Landmark. Contrary to the case asserted by Parramatta, the purposes of the joint venture extended, upon breakdown of relations between the parties, to such use of the plans and drawings as was necessary and convenient to turn to account the development site and the current development approval. As a matter of contract, Parramatta and Landmark were obliged to cooperate in the doing of acts necessary for the performance by the joint venturers of their mutual and fundamental obligations under their arrangements[7]. The better view of the facts is that, rather than manifested by distinct and several contracts, the joint venture arrangements were varied at the stages identified by Callinan J in his reasons and in accordance with the principles considered in Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd[8]. Further, given the nature and scope of the joint venture arrangements, the joint venture possessed fiduciary characteristics of the kind identified in United Dominions Corporation Ltd v Brian Pty Ltd[9]. For Parramatta to deny consent to the use by Concrete of the plans and drawings as consequent upon the acquisition of the development site would be to pursue its interests in conflict with the purposes of the joint venture as earlier identified. For these reasons, and as an implication drawn from the circumstances of the case, Concrete enjoys the authority of a licence binding upon Parramatta within the meaning of s 15 of the Act. In addition, for the reasons developed by Callinan J and by Kirby and Crennan JJ, the consent upon which Concrete may rely has not been given by Parramatta subject to revocation at will, as a bare licence; the reward to Parramatta was to be the fruits of participation in the joint venture in the manner described above. As appears from the foregoing, the legal rights and duties of the parties to this dispute turn upon the particular circumstances. Concrete has acquired the Nelson Bay site by reason of the breakdown of the joint venture for the development of the site, with Parramatta's plans and drawings already having been used to obtain a still current development approval and Parramatta having, in substance, a share in the joint venture. Some of the cases discussed in detail by Kirby and Crennan JJ, particularly Beck v Montana Constructions Pty Ltd[10] and Blair v Osborne & Tomkins[11], contain expressions which suggest the implication as a matter of law of a licence in a particular class of contract between architect and client where standard contract conditions and scales of professional fees are employed. The present dispute arises in very different circumstances. The argument in this Court of both sides to some extent placed too great a significance on what were the features within or outside the traditional relationship arising from the retainer of a member of the architect's profession by a client. As indicated above, I do not regard this case as turning upon any implication as a matter of law in a contract of a particular description. I also would reserve for further consideration any application in the field of copyright licensing of the doctrines respecting non-derogation from grant[12] and the applicability in Australia of the reasoning in Solar Thomson Engineering Co Ltd v Barton[13] and British Leyland Motor Corpn Ltd v Armstrong Patents Co Ltd[14]. The appeal should be allowed with costs and the cross-appeal dismissed with costs. The orders made by the Full Court on 29 July and 22 August 2005 should be set aside and in place thereof the appeal to that Court should be dismissed with costs. The setting aside of the orders of the Full Court has the effect of reinstating Order (3) of the orders made by the primary judge on 13 October 2004. Order (3) provided for an inquiry as to the quantum of damages sustained by Concrete by reason of the threats by Parramatta and Mr Fares. To place the matter beyond doubt, there should be an order of this Court remitting to the Federal Court for determination the inquiry into damages referred to in that Order (3).

Wicks v State Rail Authority of New South Wales Sheehan v State Rail Authority of New South Wales Negligence – Duty of care – Personal injuries – Psychological and psychiatric injuries – Train derailment – Passengers killed and injured – Police officers who attended scene sued railway operator in negligence for psychological and psychiatric injuries – Whether police officers "witnessed, at the scene, [one or more persons] being killed, injured or put in peril" by railway operator. Words and phrases – "another person", "being killed, injured or put in peril", "foreseeability", "mental or nervous shock", "recognised psychiatric illness", "shocking event", "sudden shock", "victim", "witnessed at the scene". Civil Liability Act 2002 (NSW), ss 30, 32.

Immigration – Visa – Visa applications made outside migration zone – Where applicant not afforded opportunity to comment upon information which supported inference that essential aspect of application was false or misleading – Where Minster's delegate not satisfied about necessary criterion for visa on basis of such information – Whether ss 51A(1) or 57(3) of Migration Act 1958 (Cth) ("Act") excluded requirements of natural justice hearing rule in relation to visa applications made outside migration zone – Whether provision of information to visa applicants outside migration zone was a "matter" which Pt 2 Div 3 subdiv AB of Act "deals with" – Whether requirements of natural justice a condition of statutory power to grant or refuse visa – Where statutory requirement of actual satisfaction as to facts – Whether obligation to take into account all factors which may affect determination – Whether state of non-satisfaction about criterion can be reached if Minister fails to consider whether any answer to information was put forward by applicant. Statutory interpretation – Where amendments to Act respond to High Court decision – Relevance and permissible use of extrinsic material. Words and phrases – "natural justice hearing rule", "satisfied", "the matters it deals with". Migration Act 1958 (Cth), ss 51A(1), 56, 57, 65(1).

Lie v Refugee Review Tribunal Administrative law - Constitutional writs - Procedural fairness - Alleged failure to have regard to relevant documents - Alleged failure to provide reasonable opportunity to respond to adverse material - Jurisdictional error for denial of procedural fairness and natural justice. Immigration - Refugee - Protection visa - Decision by Minister to refuse application for visa - Review of decision by Refugee Review Tribunal - Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar of Tribunal for purpose of review - Nature and extent of obligation - Migration Act 1958 (Cth), ss 418(3), 424(1). Constitutional law (Cth) - High Court - Federal Court - Review of administrative decision by officers of the Commonwealth - Migration - Refusal to grant protection visa to claimant for refugee status - Requirement of procedural fairness - Alleged failure to have regard to relevant documents - Alleged failure to provide reasonable opportunity to respond to adverse materials - Jurisdictional error - Availability of constitutional relief under s 75(v) and other relief for denial of procedural fairness and natural justice. Constitution, s 75(v). Migration Act 1958 (Cth), ss 418(3), 424(1).

HIGH COURT OF AUSTRALIA GLEESON CJ, McHUGH, KIRBY, HAYNE AND CALLINAN JJ TREVOR JOHN GOLDSMITH APPELLANT AND MICHAEL DARREN SANDILANDS & ORS RESPONDENTS Goldsmith v Sandilands [2002] HCA 31 8 August 2002 P91/2000 ORDER Appeal dismissed with costs. On appeal from the Supreme Court of Western Australia Representation: M D Cole for the appellant (instructed by Terrace Law) G T W Tannin with K E McDonald for the first, second and third respondents (instructed by Crown Solicitor for the State of Western Australia) K N Allan for the fourth respondent (instructed by K N Allan) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Goldsmith v Sandilands Evidence - Admissibility - Negligence - Collateral facts - Credibility - Whether failure to allow appellant to reopen his case to adduce evidence in reply going to his credit constituted a miscarriage of justice. Evidence - Evidence available only after close of appellant's case - Whether Commissioner erred in not allowing appellant to reopen his case to adduce such evidence - Whether miscarriage of justice in the circumstances.

Minister for Immigration and Multicultural Affairs v Rajamanikkam Immigration - Protection visa - Decision of a delegate to the Minister for Immigration and Multicultural Affairs refusing the respondent's application for protection visa and refugee status - Delegate's decision affirmed by Refugee Review Tribunal - Respondent from Sri Lanka lodged application for refugee status and protection visa on basis of fear of persecution - Refugee Review Tribunal rejected the respondent's application concluding the primary claim was concocted - Consideration of the scope of "no evidence" ground of review in s 476(1)(g) and s 476(4) of the Migration Act 1958 (Cth) - Whether factors identified by Refugee Review Tribunal going to the credibility of the respondent were based on facts that did not exist - Whether "no evidence" ground made out - Whether particular facts on which the respondent relied did exist - Whether particular facts that did not exist were critical to the making of the Refugee Review Tribunal's decision - Relevance of similar provisions in Administrative Decisions (Judicial Review) Act 1977 (Cth). Administrative law - Judicial review of administrative decisions - No evidence ground in Migration Act 1958 (Cth), ss 476(1)(g) and (4) - Adverse finding as to credibility of male applicant for refugee status and protection visa - Whether such finding invalidated in law because "based on" the existence of a particular fact, critical to the decision, found on review to be unsupported by evidence - Importance of distinction between judicial review and merits review of factual conclusions. Words and Phrases - "particular facts" - "facts critical to the making of a decision". Migration Act 1958 (Cth) ss 476(1)(e), 476(1)(g), 476(4) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(f), 5(1)(h), 5(3).

De Gruchy v The Queen Criminal law - Murder - Directions to jury - Circumstantial case - Absence of proved motive - Evidence of the appellant's good character - Accuracy and sufficiency of directions to jury - Verdict not unreasonable having regard to evidence. Criminal Appeal Act 1912 (NSW), s 6. GAUDRON, Mc

Tully v The Queen Evidence - Criminal trial - Sexual offence - Uncorroborated evidence - Delay in making of complaint - General rule from Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 requiring warning of danger of conviction - Whether trial judge bound to give a warning in present case - Duty to make comments in interests of justice - Requirement of fair trial - Conviction depended on evidence of complainant alone - Whether need for warning or comment as referred to in Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162. Evidence - Criminal trial - Sexual offence - Evidence of uncharged acts - Whether admissible as relationship evidence - Whether subject to the constraints imposed for the admissibility of similar fact or propensity evidence. Words and phrases - "delay", "Longman warning", "propensity evidence", "similar fact evidence", "uncharged acts", "uncorroborated evidence". Criminal Code (Q), ss 229B, 632. Criminal Law (Sexual Offences) Act 1978 (Q), s 4A. Evidence Act 1977 (Q), Div 4A, subdiv 3.

Tort - Trespass - Whether recognition of occupiers' rights of quiet enjoyment of land an appropriate consideration when awarding damages. Damages - Aggravated damages - Exemplary damages - Where assault and trespass committed by police officers - Whether an award of general damages, aggravated and exemplary damages involves punishment twice for the same wrong. Damages - Exemplary damages - Vicarious liability - Where the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) assigned liability of police officers to the Crown - Whether award of exemplary or aggravated damages against the Crown appropriate. Words and phrases - "double punishment", "aggravated damages", "exemplary damages", "vicarious liability". Crown Proceedings Act 1988 (NSW), s 5. Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 9B, 9G(2). Police Legislation Amendment (Civil Liability) Act 2003 (NSW).

Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen Criminal Law - Criminal liability - Complicity - Extended common purpose - Applicants carried out a common plan to assault victim, who died - Applicants tried together on counts alleging murder and assault - Prosecution could not identify which applicant inflicted fatal wound on victim - Bases on which murder left to jury included extended common purpose - Whether murder on the basis of extended common purpose should have been left to the jury - Whether extended common purpose a proper basis for conviction of murder. Criminal Law - Criminal liability - Complicity - Re-consideration of extended common purpose - Whether maintenance of extended common purpose as common law doctrine justified - Whether there is disconformity between legal and moral responsibility where conviction for murder is based on doctrine of extended common purpose - Whether extended common purpose imposes criminal liability without requiring proof of actual intent - Availability of verdict of manslaughter where murder by extended common purpose left to jury - Whether doctrine of extended common purpose adds undue complexity to trials - Necessity for trial judge to identify, and leave to jury, only the "real issues" of fact - Role of courts in altering law of homicide - Whether doctrine of extended common purpose should be re-expressed so as to replace "foresight of possibility" with "foresight of probability", or "want", or "virtual certainty" that the incidental crime would be committed. Words and phrases - "extended common purpose". Crimes Act 1958 (Vic), s 568(1).

Trade practices - Misleading or deceptive conduct in trade or commerce - Where appellant employees of a corporation made misleading or deceptive statements to respondent in the course of their employment - Where the corporation was sued for contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the Commonwealth Act") by reason of the conduct of the appellants - Where the appellants were also sued for contravention of s 9 of the Fair Trading Act 1999 (Vic) ("the State Act") - Whether each appellant was a "person" for the purposes of s 9 of the State Act - Whether conduct of each appellant was "in trade or commerce" for the purposes of s 9 of the State Act. Statutes - Statutory construction - Construction of s 9 of the State Act - Where the Commonwealth Act and the State Act have concurrent and overlapping operation - Where the Commonwealth Act had, but the State Act did not have, provisions imposing accessorial liability upon persons "involved" in a contravention - Where the Commonwealth Act had, but the State Act did not have, provisions deeming conduct engaged in on behalf of a corporation to have been engaged in by the corporation - Whether s 9 of the State Act is to be construed so as not to apply to persons who were not engaged in trade or commerce on their own account. Words and phrases - "in trade or commerce". Trade Practices Act 1974 (Cth), ss 52, 75, 75B, 82, 84. Fair Trading Act 1999 (Vic), ss 9, 159.

CRIMINAL LAW – Appeal against sentence – self-represented applicant – aggravated sexual intercourse – apparent inability of applicant to complete the CUPIT Sex Offenders Program was not a basis to review sentence – health of offender and sentencing – whether the applicant’s health problems warranted intervention

Immigration - Refugees - Well-founded fear of persecution - Section 91R(1) of the Migration Act 1958 (Cth) required that persecution involve "serious harm to the person" - Serious harm defined to include "threat to the person's life or liberty" - Whether "threat to the person's life or liberty" referred to likelihood of death or deprivation of liberty, or communication of intention to kill or deprive of liberty - Whether expression of intention to harm sufficient to constitute "serious harm". Immigration - Refugees - Application for protection visa - Whether Refugee Review Tribunal made findings of fact favourable to the appellant so as to call into operation s 91R of the Migration Act 1958 (Cth). Words and phrases - "threat", "threat to the person's life or liberty", "serious harm". Migration Act 1958 (Cth) s 91R(1)(b), (2).

Leach v The Queen Statutes - Acts of Parliament - Sentencing legislation - Interpretation - Mandatory sentence of life imprisonment with no non-parole period passed upon the appellant in 1984 in respect of each of two convictions for murder - The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) ("2003 Act") provided that life sentences for murder were taken to include a 25 year non-parole period - Section 19(1) of the 2003 Act empowered the Supreme Court of the Northern Territory, on the application of the Director of Public Prosecutions, to revoke the statutory non-parole period, and, in accordance with s 19(5), to refuse to fix a non-parole period - Whether the discretion granted to the Supreme Court under s 19(5) of the 2003 Act required the Court to consider "ordinary sentencing principles", including questions of the prisoner's rehabilitation - Meaning of the word "may" in s 19(5) - Whether primary judge must be satisfied "beyond reasonable doubt" of the basis for the decision before making an order under s 19(5). Words and phrases - "may". Criminal Code (NT). Criminal Law Consolidation Act (NT), s 5. Parole of Prisoners Act (NT), s 4. Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), ss 17-21. Sentencing Act (NT), s 53

CRIMINAL LAW - application for leave to appeal against sentence - accessory after the fact to manslaughter - guilty plea entered during trial - whether discount for guilty plea excessively low - whether sentence manifestly excessive

Statutes – Construction – Statutory powers – Mutual recognition – Where s 17(1) of Mutual Recognition Act 1992 (Cth) provides that person registered in one State for occupation entitled to be registered in equivalent occupation in second State where person lodges written notice with local registration authority of second State – Where s 20(1) of Mutual Recognition Act provides that registration in first State sufficient ground of entitlement to registration in second State – Where s 20(2) of Mutual Recognition Act provides that local registration authority of second State "may" grant registration on that ground – Where s 17(2) of Mutual Recognition Act provides that mutual recognition principle subject to exception that it does not affect operation of laws that regulate manner of carrying on occupation in second State, provided laws not based on attainment or possession of some qualification or experience relating to fitness to carry on occupation – Where respondent registered as waterproofer in first State – Where respondent refused registration in second State for non-compliance with "good character" requirement in local Act – Whether local registration authority has discretion to refuse registration – Whether "good character" requirement is law based on "qualification" relating to fitness to carry on occupation. Words and phrases – "character requirement", "disciplinary action", "discretionary power", "entitlement to registration", "fitness to carry on an occupation", "good character", "local registration authority", "may", "mutual recognition principle", "mutual recognition scheme", "qualification or experience", "registration for an occupation", "residual discretion", "sufficient ground of entitlement to registration". Acts Interpretation Act 1901 (Cth), ss 2, 13, 15AA, 33. Building Act 1993 (Vic), ss 170, 179, 180. Mutual Recognition Act 1992 (Cth), ss 3, 6, 16, 17, 19, 20, 21, 22, 23, 33, 36, 37.

Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where Australian Public Service ("APS") Code of Conduct ("Code") included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS – Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner – Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment – Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament – Where employment with Commonwealth terminated for breach of Code – Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for "injury", defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of employee's employment – Whether ss 10(1), 13(11) and 15(1) of Public Service Act impose effective burden on implied freedom – Whether burden on implied freedom justified – Whether impugned provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance. Words and phrases – "adequate in its balance", "anonymous", "apolitical", "APS Code of Conduct", "effective burden", "impartial", "implied freedom of political communication", "integrity", "legitimate purpose", "necessary", "public servants", "public service", "reasonably appropriate and adapted", "suitable", "system of representative and responsible government", "tweets", "unjustified burden". Fair Work Act 2009 (Cth), Pt 3.2. Public Service Act 1999 (Cth), ss 10(1), 13(11), 15(1), 33(1). Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1), 14.