Harvey v Minister for Primary Industry and Resources [2024] HCA 1; (2024) 98 ALJR 168 (7 February) considered a novel point in the intersection of native title and resources law.  Traditional owners claimed various rights under the Native Title Act 1993 (Cth), to be heard in respect of an application for a mining purposes tenement over land on the Gulf of Carpentaria.  The site of the tenement was more than 120 km from the mine site and was intended for use as a spoil emplacement to facilitate transshipment of concentrated ore through a dredged channel to ships being loaded in deeper waters.  The court held that despite its separation from the main mine site, the proposed tenement would create a “right to mine” for the sole purpose of constructing “an infrastructure facility … associated with mining”, entitling the appellants to “freeholder rights” under the Native Title Act, s 24MD(6A) and the procedural rights afforded by s 24MD(6B).

Also decided on 7 February, Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024)  98 ALJR 196 focused on the now well-known Ministerial “Direction 90” in its application to the refusal of visas on character grounds.  The case concerned an omission to consider the interests of a minor child in a delegate’s decision to refuse a visa to the plaintiff.  The court held it was not legally unreasonable for the delegate not to inquire into the interests of one of the plaintiff’s children in circumstances where the plaintiff’s application identified no personal facts or circumstances relating to the child and relevant to the decision, including that the child was a minor living in Australia, despite being given numerous opportunities to do so.  The court further held that it was not irrational, illogical or legally unreasonable to take circumstances of family violence into account each time for the purposes of discrete criteria set out in the Direction: this did not involve “double counting” or “repetitious weighing” to the plaintiff’s prejudice.

In R v Rohan (a pseudonym) [2024] HCA 3; (2024) 98 ALJR 429 handed down on 14 February, the Crown successfully appealed against a holding by the Victorian Court of Appeal that a County Court judge erroneously failed to direct a jury that they had to be satisfied to the criminal standard that all parties to a joint enterprise were aware of their victims’ ages where that was an element of the substantive offences, but knowledge of age was not. Gageler CJ, Gordon and Edelman JJ held that under the common purpose or joint criminal enterprise provisions of the Crimes Act 1958 (Vic), ss 323(1)(c) and 324(1) a jury must be satisfied beyond reasonable doubt that a person and another (or others) agreed that something would be done or omitted to be done so as to constitute an offence but it does not necessarily follow that it must be proved that a person who enters into an agreement to commit it intends, knows or believes in the existence of every element of the offence. In a concurring judgment Gleeson and Jagot JJ held that for s 323(1)(c) to be engaged, entry into an agreement, engagement or understanding is no more and no less than for one or more of the parties to commit the offence. That “equivalence of culpability” meant the mental or circumstantial state of that party was sufficient for the other parties to have committed the same offence.  Accordingly the trial judge didn’t misdirect the jury and the appellant’s conviction stood.

The issue before the court in Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4; (2024) 98 ALJR 445 (14 February) concerned the damage in transit of a shipment of steel rails carried by sea from Whyalla to Mackay.  Clauses in the relevant bill of lading made English law applicable and any disputes arising under it referable to arbitration in London.  The carrier’s liability for loss was governed by Article 3(8) of the Australian Hague Rules, which renders void any provision in a contract of carriage that relieves or limits such liability otherwise than as the Rules provide.  Carmichael Rail Network sought to litigate its claim in the Federal Court, arguing that the expense and practical difficulty of arbitration in London was unjustified and that there was a risk that a London arbitrator, applying English law, would construe Article 3(8) adversely.  The court unanimously dismissed Carmichael’s appeal, holding that Art 3(8) was to be construed according to the ordinary civil standard of proof, and not to some lesser standard such as a possibility, real risk, reasonably arguable or prima facie case that a clause will or might affect a carrier’s liability inconsistently with the Hague Rules.  The court also held that it was not within the scope of Art 3(8) to determine where the relative costs of dispute resolution should fall.

In Xerri v The King [2024] HCA 5; (2024) 98 ALJR 461 (6 March), the appellant had been sentenced to imprisonment for an offence of maintaining an unlawful sexual relationship with a child in circumstances where the structure of the substantive offence and its maximum penalty changed between the times of commission and sentence.  Responding to the Royal Commission into Institutional Responses to Child Sexual Abuse, the Crimes Act 1900 (NSW), s 66EA was retrospectively re-enacted in different terms and the maximum penalty increased from 25 years’ imprisonment to life.  The appellant appealed against severity on the ground that he should have been sentenced with reference to the maximum penalty applicable at the time of his offending, relying on the Crimes (Sentencing Procedure) Act 1999 (NSW), s 19(1).  The New South Wales Court of Criminal Appeal and the High Court both dismissed his appeals.  In the High Court it was held unanimously that s 19(1) had no application because the new s 66EA was an entirely new offence, not a reformulation, refinement or improvement to an ongoing offence and its retrospective operation meant that it was not open to the appellant to be sentenced according to norms applicable when the offending occurred.

Hurt v The King; Delzotto v The King [2024] HCA 8; (2024) 98 ALJR 485, handed down on 13 March, was another case dealing with child protection offences and the transitional operation of legislative amendments.  Since its commencement on 23 June 2020, the Crimes Act 1914 (Cth), s 16AAB provides that second and subsequent child sexual abuse offenders are liable to minimum sentences for offences listed in s 16AAB(2).  The two appellants, both prior offenders, were separately convicted for contraventions of the Criminal Code (Cth), s 474.22A, possessing child abuse material obtained by accessing a carriage service.  The relevant material was obtained prior to the commencement of s 16AAB but was still in their possession after the section commenced.  On this point the court held that the relevant conduct constituting the offence was the possession or control of the material, not the circumstances in which possession or control occurred: accordingly s 16AAB applied.  As to that, the court held that the minimum sentence served a “double function”, as a restriction on power and a yardstick for calculating the appropriate penalty based on the “least worst possible case” warranting imprisonment against the maximum penalty for the relevant offence.

When a local council levies special rates for public works purposes and later discovers it had no power to do so, what consequences follow?  Between 2011 and around 2017 a Queensland council levied special charges on the owners of waterfront land for the upkeep of aquatic reserves.  By March  2017 it had come to realise that resolutions to make those levies didn’t comply with mandatory provisions in a series of regulations.  Some works had been undertaken but the affected ratepayers wanted their money back.  At first instance in the Queensland Supreme Court, they succeeded in a claim for recovery of a statutory debt but an allied claim in restitution failed.  The council’s appeal to the Court of Appeal yielded the exact opposite result.  Finally, in Redland City Council v Kozik [2024] HCA 7; (2024) 98 ALJR 544; 258 LGERA 388, (13 March), a majority of the High Court (Gageler CJ and Jagot J dissenting) held that the council couldn’t keep the money because the proceeds from an invalid statutory charge could not be retained on the basis that council might validly have imposed the charge but didn’t do so.  A defence of good consideration failed because the ratepayers didn’t ask for the works, or necessarily want them. The restitutionary claim was successful.  However, the ratepayers’ cross-appeal on the statutory debt claim was unanimously dismissed because the return provisions in the Local Government Regulation 2012 (Qld), s 98(1) were not engaged on the facts.

R v Anna Rowan (a pseudonym) [2024] HCA 9; (2024) 98 ALJR 508, also handed down on 13 March, considered the defence of duress at common law.  The respondent was convicted of 12 counts of sexual offences committed with her partner against their daughters over a seven-year period.  At trial the respondent led evidence on the voir dire as to her husband’s constant threatening, violent and controlling domestic behaviour which she alleged compelled her to participate in the abuse of the children because she feared physical harm and worse sexual abuse would occur if she didn’t submit.  The trial judge in the County Court of Victoria ruled that there was insufficient evidence on those facts to put a defence of duress to the jury.  The Victorian Court of Appeal overturned the convictions, finding that rejecting the evidence resulted in a substantial miscarriage of justice.  Kyrou and Niall JJA held that a “continuing and ever-present threat” could be inferred from the respondent’s domestic circumstances, subjecting her to an “unstated demand” that she commit the relevant acts or physical and sexual abuse would result.  The Crown appealed to the High Court, seeking to argue that the Court of Appeal’s formulation amounted to “duress of circumstances”, an accepted defence in England and Wales but not known to Australian jurisdictions that retain the common law.  The High Court unanimously dismissed the appeal, holding that the court below had approached the defence consistently with Australian authority deriving from R v Hurley [1967] VR 526.

What happens when the Immigration Minister chooses to consider revocation of an automatic visa cancellation personally?  In Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594 (10 April), the Minister, having exercised the election, received a brief from his department containing within its 213 pages some written submissions from the respondent as well as a departmental summary of those submissions and 15 pages of “draft reasons” for not revoking the cancellation.  Refusing revocation, the Minister adopted the draft in lieu of his own reasons.  In judicial review proceedings in the Federal Court, and on appeal to the Full Federal Court, it was evident but not conceded that the Minister hadn’t read the whole brief.  Both Colvin J at first instance and the Full Court found that this amounted to a jurisdictional error: having decided to exercise the power in the Migration Act 1958 (Cth), s 501CA(4) personally, the Minister was required to consider representations in support of revocation “personally and directly”.  The Minister sought special leave to appeal to the High Court, which Gordon and Gleeson JJ referred to an enlarged bench.  On 10 April the seven members of the court granted special leave and allowed the Minister’s appeal, holding that a valid exercise of the power in s 501CA(4) is not conditional on the Minister personally reading the submissions, representations and other material received in every case.  He or she can rely on departmental advice but in doing so won’t be immune from any errors of law contained in it.

Is an error in an administrative decision a jurisdictional error?  That depends on whether it was “material” to the decision in question.  On 10 April, the full Bench in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 handed down a unified definition of what “materiality” means in this context.  In another case about the Migration Act 1958 (Cth), s 501CA(4) (this time involving a delegated decision not to revoke a mandatory cancellation), Snaden J, reviewing a decision of the Administrative Appeals Tribunal, held that the Tribunal didn’t err in its treatment of relevant matters required to be taken into account in assessing a mandatory requirement of Direction 90.  The Full Federal Court on appeal held that the Tribunal’s findings in relation to those matters did involve error, but the error was not material and therefore not jurisdictional.  The High Court reversed the decisions below, holding that there was no rational basis for the Tribunal’s findings and there was a possibility, neither fanciful nor improbable, that its decision could realistically have been different if the relevant error had not been made.  The Tribunal’s reasons on their face revealed that the error contributed to the evaluative and discretionary decision that was made in exercising the statutory power under s 501CA(4) and there was no basis on the facts before the court to consider that the outcome would inevitably have been the same absent the error.  Accordingly it was a jurisdictional error and void.

On 17 April a five-member bench considered how a jury should be directed in respect of a charge of conspiring to import a commercial quantity of a border-controlled drug and the evidence that can be led in the trial of an individual conspirator.  Director of Public Prosecutions (Cth) v Kola [2024] HCA 14; (2024) 98 ALJR 632 interprets sections 11.5 and 307.1(1) of the Criminal Code (Cth) and holds that to establish the relevant offence the prosecution must prove that the accused participated in or was a party to an agreement to import a border-controlled drug, intending so to participate; and that the accused and someone else knew or believed that a border-controlled drug would be imported pursuant to the agreement.  However proof of intention does not extend to having to prove that the participants knew or believed that a commercial quantity would be landed if the importation were to proceed.  The decision further holds that evidence of acts or words out of the accused’s presence is only admissible to prove the accused’s participation in the conspiracy, once it is established that there was a combination between the parties of the type alleged; that those acts or words were in furtherance of its common purpose and there is separate reasonable evidence (in the opinion of the trial judge) that the accused was also a participant.

Director of Public Prosecutions (Vic) v Benjamin Roder (a pseudonym) [2024] HCA 15; [2024] 98 ALJR 644, (17 April) held  that properly construed, the Jury Directions Act 2015 (Vic), s 61 requires that juries be instructed that the elements of the relevant offence must be proved beyond reasonable doubt, not the evidence supporting the proof.  The issue arose in relation to a tendency notice served by the prosecution, intending to lead evidence of both charged and uncharged acts tending to prove that the respondent had “an improper sexual interest” in his partner’s children and used his position of trust, proximity and relationship to them to engage in sexual activity.

It's not uncommon these days for a statute to provide that the “Act binds the Crown”.  But what does it actually mean?  For example can an Act binding the Crown in right of a Territory equally bind the Crown in right of the Commonwealth?  Is the Commonwealth immune from penal provisions contained in the Territory Act?  In a 117-page judgment delivered on 8 May in Chief Executive Officer, Aboriginal Areas Protection Authority (NT) v Director of National Parks [2024] HCA 16; (2024] 98 ALJR 655; 259 LGERA 26, the court examined the concept of Crown immunity at considerable length and concluded that in its modern manifestation, the concept is ultimately one of statutory construction.  The reach of the Territory Act did not extend to the Commonwealth but it did extend to the Director of National Parks, a statutory corporation sole constituted by Commonwealth legislation.  Explaining dicta by Dixon J in Cain v Doyle (1946) 72 CLR 49, the court held that the common law presumption against extending criminal liability to the Crown is confined to immunity of the body politic and ought not to be extended so as to shield bodies such as the Director of National Parks.  The upshot is that the Director is liable to be prosecuted for constructing a pathway within a sacred site in Kakadu without first having obtained permissions required by the relevant NT statute.

In Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 98 ALJR 719 delivered on 8 May, a majority comprising Edelman, Steward, Gleeson and Beech-Jones JJ held that where a breach of contract results in uncertainty about the position that a plaintiff would have been in if the contract had been performed (in the sense of having caused or increased the uncertainty), discharging the plaintiff’s legal burden of proof will be facilitated by assuming or inferring that had the contract been performed, the plaintiff would have recovered expenditure reasonably incurred in anticipation of, or reliance on performance by the other party.  The respondent had contracted with Cessnock  Council to build an “iconic” hangar on land at Cessnock airport, expecting to receive a 30-year lease.  That depended on the council registering a plan of subdivision by a specified date.  It didn’t, leaving the respondent about $3.7 million out of pocket by way of construction costs.  By the time council breached and repudiated the agreement for lease, the respondent’s business was plainly unprofitable and the uncertainty arising from the breach made proof of loss very difficult.  In those circumstances the plurality held that the “facilitation principle” treated the respondent as having established its loss in the amount reasonably incurred in building the hangar in anticipation of or reliance on performance of council’s obligation to register the subdivision.  Applying that principle, the court below correctly concluded that the respondent would at least have recouped that expenditure.

A case involving an immigration detainee who refused to be sent home was removed into the High Court from the full Federal Court to determine whether the alien was entitled to a writ of habeas corpus.  ASF17 v The Commonwealth [2024] HCA 19; (2024) 98 ALJR 782 involved a citizen of Iran facing deportation after his avenues of lawful entry were fully exhausted.  He didn’t want to be repatriated, fearing persecution on account of his bisexuality, and offered to be sent anywhere else.  Departmental policy precluded removing him to a third country where he had no right of residency or permanent stay.  By this stage he had been in immigration detention for almost 11 years and the impact of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs needed to be considered.  Habeas corpus was refused by Colvin J at first instance and affirmed by the High Court on 10 May.  The court held that the constitutional limits identified in NZYQ were not exceeded in circumstances where continuing detention occurs as a result of the detainee’s own voluntary decision.  The appellant couldn’t negative any reasonable likelihood of removal from Australia in the foreseeable future by withholding consent or co-operation to removal, specifically to the country from which he came.

To what extent will a racing stud qualify for land tax exemption? The appellant in Godolphin Australia Pty Ltd v Chief Commissioner of State Revenue (NSW) [2024] HCA 20; (2024) 98 ALJR 808 (5 June) owned rural land in New South Wales supporting an integrated business which combined the breeding and selling of thoroughbred racehorses with a racing operation.  Exemption from land tax under the Land Tax Management Act 1956 (NSW), s 10AA(3)(b) as “land used for primary production” depends on whether the land’s dominant use is the maintenance of animals for their sale (or sale of their natural increase or bodily produce). Although most of Godolphin’s revenue came from the breeding side of the business, and the value of its breeding assets exceeded that of the racing assets, the majority of their land, by area, was given over to the racing side.  The dominant use of the land was therefore racing rather than primary production as specifically defined by s 10AA(3)(b).

On 5 June the Full Court also handed down judgment in Graylag Goose Leasing 1410 Designated Activity Co v PT Garuda Indonesia Ltd [2024] HCA 21; (2024) 98 ALJR 828.  Garuda, the Indonesian national air carrier, fell into arrears of payments to Graylag, an Irish corporation that leases aircraft.  Graylag served Garuda with statutory demands totalling almost half a billion US dollars and then applied to the NSW Supreme Court to have Garuda wound up under Part 5.7 of the Corporations Act when the demands weren’t met.  Garuda challenged the court’s jurisdiction, claiming under the Foreign States Immunities Act 1985 (Cth), ss 9 and 22 to have sovereign immunity as a “separate entity” of the Republic of Indonesia.  Graylag countered with an argument that s 14(3)(a) of the same Act applied.  This relevantly provides that a foreign State (and by extension, a separate entity of the State) is not immune in a proceeding as far as it concerns “bankruptcy, insolvency or the winding up of a body corporate”.  A 5/2 majority of the court held that Garuda was immune and that s 14(3)(a) effectively applied only where a foreign State or separate entity is a creditor in an insolvency proceeding involving an ordinary body corporate, not the debtor in a purported insolvency proceeding such as the present.

Briefly Noted

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475, 6 March: held, by Beech-Jones J, with whom the other members of the court agreed, that a decision to refuse a  visa on character grounds was infected with jurisdictional error having been based on convictions for which the plaintiff was sentenced while under the age of 16 years.  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136; 97 ALJR 488, applied.

AB v Independent Broad-based Anti-corruption Commission [2024] HCA 10; (2024) 98 ALJR 532, 13 March: The Independent Broad-based Anti-corruption Commission Act 2011 (Vic), s 162(3) requires that the evidentiary material forming the basis of adverse comments or opinions to be contained in a special report to the Victorian Parliament first be put to any person affected by it, so that a reasonable opportunity is afforded to respond to the substance or gravamen of the material.  This will usually involve a full account of its essential content.  Following an undertaking to the High Court not to transmit a report containing the material in issue, no substantive relief was warranted.

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 98 ALJR 623, 17 April: An application to the Administrative Appeals Tribunal which doesn’t include a statement of the applicant’s reasons for wanting a review, and which thus doesn’t comply with the Administrative Appeals Tribunal Act, s 29(1)(c), is not invalid.  The application still engages the Tribunal’s jurisdiction; the omission can be remedied by directions.

Obian v The King [2024] HCA 18; (2024) 98 ALJR 771, 8 May: Reopening of a prosecution case in circumstances where the prosecutor misinformed the trial judge about a fact relevant to exercise of the power in the Criminal Procedure Act 2009 (Vic), s 232(2) did not give rise to a judge’s decision to allow reopening.

Dayney v The King [2024] HCA 22; (2024) 98 ALJR 857, 12 June: Self-defence by the instigator of violence against a person who responds to the provocation with force is not a defence to murder under the Queensland Criminal Code, s 272 unless the instigator first makes an attempt, as far as reasonably practicable, to neutralise, de-escalate or retreat from the conflict.

R v Hatahet [2024] HCA 23; (2024) 98 ALJR 863, 12 June: Prospects of a future grant or refusal of parole at the end of a non-parole period, and any consequences of parole being granted or not, are not relevant factors for consideration pursuant to the Crimes Act 1914 (Cth), s 16A, when sentencing for a Commonwealth offence.  This principle also applies to certain offences for which there exists a statutory presumption against parole.

Forthcoming Matters

The court’s Canberra headquarters are undergoing major capital works and will be closed until 8 October.  Therefore when the court returns for the new Term beginning on 5 August, it will spend the next two months on circuit.  For the first week of Term it will sit in Darwin, followed by a week in Adelaide.  Matters listed for judgment on Wednesday 7 August are:

• Tesseract International Pty Ltd v Pascale Construction Pty Ltd (on appeal from the Supreme Court of South Australia (2022) 140 SASR 395);
• Mallonland Pty Ltd v Advanta Seeds Pty Ltd  (on appeal from the Queensland Court of Appeal (2023) 13 QR 492);
• Cook (a Pseudonym) v The King (on appeal from the NSW Court of Criminal Appeal [2022] NSWCCA 282).

The following matters are listed for hearing by the Full Court in the August sittings:

• YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (Special Case).
• Commonwealth v Yunupingu on Behalf or the Gumatj Clan or Estate Group (on appeal from the Full Federal Court (2023) 298 FCR 160).