Pollentine v Attorney-General (Qld)

The High Court has decided a special case and upheld the validity of s 18 of the Criminal Law Amendment Act 1945 (Qld), which relates to continued detention of child sex offenders after the expiry of sentence, ‘at her Majesty’s pleasure’, on the grounds that the ‘offender is incapable of exercising proper control over the offender’s sexual instincts’. Continue reading

Plaintiff S297/2013 v Minister for Immigration and Border Protection; Plaintiff M150/2013 v Minister for Immigration and Border Protection

The High Court has upheld a challenge to the validity of the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), known as the PPV Regulation, in two related matters. The Court held the Minister’s determinations in relation to Plaintiffs S297/2013 and M150/2013 were invalid and issued a writ of mandamus in each instance directing the Minister to consider and determine each visa application according to law. Continue reading

FTZK v Minister for Immigration and Citizenship

The High Court has allowed an appeal against the decision of the Full Federal Court in FTZK. FTZK is an asylum seeker who was accused of involvement in a kidnapping-murder while he was in China, an accusation he claims was motivated by his religious practices. Continue reading

Williams v Commonwealth

Thomas Bland, ‘Williams [No 2] Symposium: Thomas Bland on the Plaintiff’s Standing and the Commonwealth’s Attempt to Re-Open Williams [No 1]‘ (25 June 2014).

Cheryl Saunders, ‘Williams [No 2] Symposium: Cheryl Saunders on the Executive Power of the Commonwealth after Williams [No 2]‘ (25 June 2014).

Simon Evans, ‘Williams [No 2] Symposium: Simon Evans on Benefits to Students’ (23 June 2014).

Graeme Hill, ‘Williams [No 2] Symposium: Graeme Hill on Narrowing the Issues’ (23 June 2014).

Jeremy Gans, ‘News: Chaplaincy Hearing Reaches Its Fourth Day’ (9 May 2014).

The High Court has decided the special case arising out of and brought by the same applicant in the recent landmark constitutional law decision, Williams v Commonwealth [2012] HCA 23, and has ruled that the SUQ Funding Agreement is not supported by the legislative or executive power of the Commonwealth.

Both the present challenge and Williams [No 1] revolved around the Commonwealth’s power to enter into an agreement to fund the public company Scripture Union Queensland’s (SUQ) delivery of chaplaincy services to the Darling Heights State Primary School (attended by Mr William’s children). In Williams [No 1], a majority of the Court held that the executive power of the Commonwealth could not support its entry into the agreement with SUQ in order to fund the chaplaincy program because the executive does not have a broad power to enter into contracts or spend public money without the support of legislation (absent another recognised source of power).

This challenge related to the new funding arrangement with SUQ for the renewed and renamed chaplaincy program, funded by a new series of appropriations acts (which also purportedly support the Commonwealth’s entry into the arrangement). Following the decision in Williams No 1, the Commonwealth Parliament inserted s 32B into the Financial Management and Accountability Act 1997 (Cth), which (in conjunction with associated regulations) purports to grant the Commonwealth a general power to make, vary or administer arrangements and grants, where those arrangements or grants are specified in regulations.

The stated case raised eight questions to be answered by the Full Court. The central issues are whether the Commonwealth’s entry into the SUQ funding agreement is authorised by various appropriation acts, and if not, whether s 32B (and its associated regulations) is wholly invalid as going beyond the ambit of the Commonwealth’s executive power, and if not, whether those provisions are supported by a head of legislative power in the Australian Constitution (specifically, ss 51(xxiiiA), 51(xx) or 51(xxxix), operating in conjunction with s 61).

The Court held that the scheme was not supported by s 51(xxiiiA) because the provision of chaplaincy services is not a ‘benefit’ within the meaning of s 51(xxiiiA) in the sense of material aid (as interpreted by the Court in British Medical Association v Commonwealth [1949] HCA 44 or Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6) directly made to students. Payments to be applied as wages to chaplains who are to ‘support the wellbeing’ of students are not ‘benefits’ to students within the meaning of s 51(xxiiiA): at [47]. Nor was it supported by s 51(xx) as the scheme does not regulate or permit any act by or on behalf of a corporation: ‘[t]he corporation’s capacity to make the agreement and receive and apply the payments is not provided by the impugned provisions’ (at [50]). The Court also declined to reopen Williams [No 1] on the basis that the Commonwealth’s submissions here were ‘no more than a repetition of the “broad basis” submissions’ on executive power rejected by the majority in Williams [No 1], and noting that the Commonwealth’s arguments rested on a ‘false assumption’ about the ambit of federal executive power (see at [78]–[83]). Finally, the Court rejected the s 51(xxxix) argument as being contrary to Pape v Commissioner of Taxation [2009] HCA 23 and Williams [No 1]: appropriations do not necessarily bring the expenditures within the power of the Commonwealth. Crennan J agreed with the majority but made a reservation regarding s 51(xxiiiA) noting that it was unnecessary for the Court to come to any conclusions on the wisdom of the scheme (at [101]); instead it was only necessary to find that the scheme did not provide government assistance to or for students as prescribed and identifiable beneficiaries: [102], [110].
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Plaintiff S156/2013 v Minister for Immigration and Border Protection

Houston Ash, ‘The High Court Upholds the “PNG Solution”: Plaintiff S156/2013‘ (11 July 2014).

The Full Court has decided the special case in Plaintiff S156/2013 v Minister for Immigration and Border Protection, and has upheld the validity of the challenged legislation and the Minister’s designation of Papua New Guinea as a regional processing country. Continue reading

Gillard v The Queen

Dale Smith, ‘Can Reckless Abuse of Authority Amount to Rape?: Gillard v The Queen‘ (2 June 2014).

The High Court has unanimously allowed an appeal against the ACT Court of Appeal’s decision to dismiss an appeal against multiple convictions for child sexual offences and rape by a family friend of the complainants. The Court quashed each of the four convictions and a new trial has been ordered for those counts. Continue reading

MacarthurCook Fund Management Ltd v TFML Ltd

The High Court has unanimously allowed an appeal against the decision of the NSW Court of Appeal on the circumstances in which a member of a managed investment scheme can ‘withdraw from’ that scheme under pt 5C.6 of the Corporations Act 2001 (Cth). Continue reading

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd

Graham Virgo, ‘Conscience or Unjust Enrichment?: The Emperor’s Old Clothes: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd‘ (19 May 2014).

Elise Bant, ‘Change of Position in the High Court: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd‘ (9 May 2014).

The High Court has unanimously dismissed an appeal against the decision of the NSW Court of Appeal in a case concerning (among other things) the scope of so-called ‘defences’ to restitutionary claims, specifically the change of position defence. Continue reading

Australian Competition and Consumer Commission v TPG Internet Pty Ltd

Jeannie Marie Paterson and Veronica Wong, ‘Fine Print Disclaimers May Not Protect Advertising from being Misleading: Australian Competition and Consumer Commission v TPG Internet Pty Ltd‘ (6 January 2014).

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Commonwealth v Australian Capital Territory (‘Same-Sex Marriage Case’)

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