Litigation notes

As this is an online archive of AGS's Litigation notes, some links in older issues may no longer work.

Litigation notes helps you to stay informed of current judicial developments in Australian constitutional law. Each issue of Litigation notes provides summaries of the High Court's decisions and arguments put forward by the Commonwealth in constitutional cases in the six to twelve months prior to publication. Generally, most notes focus on matters before the High Court.

Where they are publicly available on the High Court's website, links to the Commonwealth's submissions in each matter are provided below. Links to the High Court's judgment on Austlii are also provided.

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No. 30 – 29 November 2019 – PDF 474Kb

  • This issues contains notes on the High Court's decisions in cases concerning the implied freedom of communication from 2017 to 2019.

No. 29 – 29 November 2019 – PDF 1.17Mb

  • This issue contains notes on selected constitutional cases decided between 2017 and 2019, including Spence v Queensland, Rizeq v Western Australia, Masson v Parsons, Burns v Corbett and Work Health Authority v Outback Ballooning.

No. 28 – 16 November 2019 – PDF 610Kb

  • This issue contains notes on the High Court's decisions in cases concerning ss 44-47 of the Constitution decided in 2017 and 2018.

No. 27 – 17 November 2017 – PDF 1.32Mb

  • This issue contains notes on the High Court's decisions in constitutional cases in 2016–2017, including cases on the validity of Senate voting reform, changes to parliamentarians' superannuation and the Life Gold Pass, the Commonwealth's involvement in the detention of asylum seekers in Nauru and the disqualification of former Senators Day and Culleton under s 44 of the Constitution.

No. 2613 November 2015 PDF 342Kb

  • NSW political donations laws valid (McCloy v NSW) (judgment)
  • Detention at sea authorised by Maritime Powers Act (CPCF v Minister for Immigration and Border Protection) (judgment)
  • Cancellation of mining licences valid – no exercise of judicial power by NSW Parliament (Duncan v NSW) (judgment)
  • High Court considers the question: 'What is a corporation?' (CEEEIPP ASUA v Queensland Rail) (judgment)
  • Media regulator's power to determine breach of broadcasting licence upheld – not judicial power (ACMA v Today FM) (judgment)
  • High Court rejects challenge to the constitutional validity of the Jobs and Competitiveness Program (Queensland Nickel v Commonwealth) (judgment)
  • Queensland anti-bikie legislation held valid (Kuczborski v Queensland) (judgment)
  • Supreme Court has power to grant freezing order in relation to prospective foreign judgment (PT Bayan Resources v BCBC Singapore) (judgment)

No. 25 – 19 June 2015

  • Application of Barbaro: resolving civil penalty proceedings by agreement (judgment)

No. 24 – 6 November 2014 – PDF 283KbLN24.pdf

No. 23 – 12 Nov 2013 – PDF 231KbLN23.pdf

No. 22 – 10 Dec 2012 – PDF 299KbLN22.pdf

  • JT International SA v Commonwealth; British American Tobacco Australasia Limited v Commonwealth – Validity of tobacco plain packaging laws upheld. (Commonwealth submissions (PDF): JTI, BATA; judgment)
  • Williams v Commonwealth – Commonwealth's power to contract and spend money: challenge to the National School Chaplaincy Program (Commonwealth submissions (PDF); judgment)
  • Phonographic Performance Co of Australia v Commonwealth – Statutory caps on payments for radio broadcasts of sound recordings (Commonwealth submissions (PDF); judgment)
  • Betfair Pty Ltd v Racing NSW and Sportsbet Pty Ltd v NSW – Race field information fees consistent with freedom of interstate trade and commerce (Commonwealth submissions (PDF): Betfair, Sportsbet; judgment: Betfair, Sportsbet)
  • Wotton v State of Queensland – Queensland prisoner legislation does not infringe the implied freedom of political communication (Commonwealth submissions (PDF); judgment)
  • Australian Education Union v General Manager of Fair Work Australia – Judicial power and validating legislation (Commonwealth submissions (PDF); judgment)
  • Crump v New South Wales – Judicial power and parole (Commonwealth submissions (PDF); judgment)
  • Saraceni v Jones – Examination power validly conferred on courts (Judgment)
  • Public Service Association of South Australia Inc v Industrial Relations Commission (SA) – Power of State Supreme Courts to review for jurisdictional error (Commonwealth submissions (PDF); judgment)

No. 21 – 2 November 2011 – PDF 1.04Mb

  • Momcilovic v The Queen – Inconsistency of Commonwealth and State laws; validity and operation of Victorian Charter of Human Rights (Commonwealth submissions (PDF); judgment)
  • Jemena Asset Management (3) Pty Ltd v Coinvest Limited – Inconsistency between Commonwealth and State long service leave provisions (Commonwealth submissions (PDF); judgment)
  • Roy Morgan Research Pty Ltd v Commissioner of Taxation – What is a tax? (Commonwealth submissions (PDF); judgment)
  • Queanbeyan City Council v ACTEW Corporation Ltd – What is a tax? (Commonwealth submissions (PDF); judgment)
  • Haskins v Commonwealth and Nicholas v Commonwealth – Remedial legislation after invalidity of Australian Military Court
    (Commonwealth submissions (PDF): Haskins, Nicholas; judgment: Haskins, Nicholas)
  • Hogan v Hinch – Validity of power to make 'suppression orders' upheld (Judgment)
  • Wainohu v New South Wales – NSW criminal organisations control order invalid (Judgment)
  • Rowe v Electoral Commissioner – Provisions closing the federal electoral roll early invalid (Judgment)
  • Plaintiff M61/2010E v Commonwealth and Plaintiff M69 of 2010 v Commonwealth – Judicial review of offshore processing regime (Judgment)
  • Edwards v Santos – Declaratory relief and 'matter' under the Native Title Act 1993 (Cth) (Judgment)

No. 20 – 15 December 2010 – PDF 331KbLN20.pdf

  • ICM Agriculture Pty Ltd v Commonwealth and Arnold v Minister Administering the Water Management Act 2000 – Water entitlement reductions valid: acquisition of property and abridgment of rights to water (Judgment:ICM Agriculture, Arnold)
  • Spencer v Commonwealth – Summary judgment inappropriate where complex issues of face and constitutional law in issue (Judgment)
  • Dickson v The Queen – Inconsistency between Commonwealth and State criminal laws (Judgment)
  • Kirk v Industrial Court of New South Wales – State privative clauses (Judgment)
  • International Finance Trust Company Ltd v NSW Crime Commission – Application of the Kable principle: invalidity of functions conferred by state laws on state courts (Judgment)
  • South Australia v Totani – South Australian criminal organisation control order provision invalid (Judgment)
  • The Queen v LK; The Queen v RK – Prosecution appeal from directed acquittal consistent with 'trial by jury' (Judgment)

No. 19 – 28 October 2009 – PDF 897Kb

  • Pape v Commissioner of Taxation & Commonwealth – Validity of tax bonus payments upheld: the Commonwealth's power to spend (Judgment)
  • Lane v Morrison – The Australian Military Court invalid (Judgment)
  • Wurridjal v Commonwealth – Northern Territory emergency response legislation valid (Judgment)
  • Clarke v Commissioner of Taxation – Superannuation surcharge on South Australian Parliamentarians invalid (Judgment)
  • Wong v Commonwealth of Australia; Selim v Lele – Medicare and PSR schemes valid (Judgment)
  • John Holland Pty Ltd v Victorian Workcover Authority; John Holland Pty Ltd v Inspector Nathan Hamilton – Occupational health and safety precautions (Judgment – VWA; Hamilton)
  • K-Generation Pty Ltd v Liquor Licensing Court – Validity of South Australian liquor licensing laws; use of criminal intelligence (Judgment)

No. 18 – 11 December 2008 – PDF 594Kb

  • The Queen v Wei Tang – Slavery and the Criminal Code (Judgment)
  • MZXOT v Minister for Immigration and Citizenship – No implied power to remit matters in High Court's exclusive jurisdiction (Judgment)
  • Griffiths v Minister for Lands, Planning and Environment – Compulsory acquisition of native title (Judgment)
  • Northern Territory of Australia v Arnhem Land Aboriginal Land Trust – Authority to permit entry to waters overlying Aboriginal land in the Northern Territory (Judgment)
  • Raftland Pty Ltd as Trustee of Raftland Trust v Commissioner of Taxation – High Court upholds tax decision on 'sham' transactions' (Judgment)
  • FCT v Reliance Carpet Co Pty Ltd; Hornsby Shire Council v FCT; AXA Asia Pacific Holdings Ltd v FCT – Three recent GST cases (Judgments - Reliance, Hornsby, and AXA)
  • Commissioner of Taxation v Futuris Corporation LTd – Judicial review of tax assessment (Judgment)

No. 17 – 8 October 2008 – PDF 423Kb

  • Osland v Secretary to the Department of Justice – Waiver of legal professional privilege (Judgment)
  • Hearne v Street – Recent High Court decision on binding nature of implied undertakings in litigation (Judgment)
  • Kuru v State of New South Wales – Police powers of entry without warrant on private premises where criminal activity
  • apprehended (Judgment)
  • Roads and Traffic Authority v Royal – Liability for damages over road design and construction (Judgment)
  • Roads and Traffic Authority of NSW v Dederer – High Court rules on breach of duty of care (Judgment)

No. 16 – 12 June 2008 – PDF 309Kb

  • O'Donoghue v Ireland; Zentai v Hungary; Williams v United States – Validity of conferral of Commonwealth administrative power on State officers (Judgment)
  • Telstra Corporations Ltd v Commonwealth of Australia – Sharing Australia's telecommunications network: an unjust acquisition of Telstra's property? (Judgment)
  • Attorney-General of the Commonwealth of Australia v Alinta Ltd – Takeovers panel's power valid (Judgment)
  • Betfair Pty Ltd v State of Western Australia – Freedom of interstate betting (Judgment)
  • Gypsy Jokers Motorcycle Club Inc v Commissioner of PoliceKable principle revisited: State law restricting disclosure of information in court proceedings (Judgment)

No. 15 – 20 February 2008 – PDF 314Kb

  • Thomas v Mowbray – Anti-terrorism control orders and the defence power (Judgment)
  • Visnic v Australian Securities and Investments Commission – Disciplinary proceedings and judicial power (Judgment)
  • Attorney-General (NT) v Chaffey; Santos Limited v Chaffey – Acquisition of property: Reduction in workers compensation (Judgment)
  • Roach v Electoral Commissioner & Commonwealth – Prisoners voting in federal elections (Judgment)
  • Bodruddaza v Minister for Immigration and Multicultural Affairs – Time limit on applications to High Court for judicial review of executive decisions (Judgment)
  • Bennett v Commonwealth – Validity of Norfolk Island electoral laws: Section 122 of the Constitution (Judgment)
  • Gordon v Tolcher – Applications of state procedural laws to proceedings in federal jurisdiction (Judgment)
  • Attorney-General (Cth) v Alinta Limited – Judicial power and the Takeovers Panel (Judgment)
  • Attorney-General (Vic) v Andrews – State insurance (Judgment)
  • White v Director of Military Prosecutions – Validity of military tribunals that are not federal courts (Judgment)

No. 14 – 29 November 2006 – PDF 292Kb

  • State of NSW v Commonwealth of Australia – The Work Choices decision (Judgment)
  • Forge v Australian Securities and Investments Commission – Constitutional validity of acting judges (Judgment)
  • XYZ v Commonwealth – The external affairs power and child sex tourism offences (Judgment)
  • Theophanous v Commonwealth – Forfeiture of superannuation benefits (Judgment)
  • Koroitamana v Commonwealth – The constitutional meaning of 'alien' (Judgment)
  • Dalton v New South Wales Crime Commission (Judgment)
  • Vasiljkovic v Commonwealth (Judgment)

No. 13 – 29 November 2005 – PDF 400Kb

  • APLA Limited v Legal Services Commissioner – Advertisement of personal injury legal services (Judgment)
  • Combet v Commonwealth – The workplace relations advertising case (Judgment)
  • Coleman v Power – Freedom of political speech (Judgment)
  • Mulholland v Australian Electoral Commission – Freedom of political speech (Judgment)
  • Al-Kateb v Godwin – Constitutional validity of mandatory immigration detention provisions (Judgment)
  • Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) v Al Khafaji - Constitutional validity of mandatory immigration detention provisions (Judgment)
  • Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) - Constitutional validity of mandatory immigration detention provisions (Judgment)
  • Re Woolley; Ex parte Applicants M276/2003 - Constitutional validity of mandatory immigration detention provisions (Judgment)
  • Baker v The Queen – Scope of the Kable principle (Judgment)
  • Fardon v Attorney-General (Qld) – Scope of the Kable principle (Judgment)
  • Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) - Validity of the Mirror Taxes Act (Judgment)
  • Singh v Commonwealth (Judgment)
  • Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (Judgment)
  • Re Colonel Aird; Ex parte Alpert (Judgment)
  • BHP Billiton Ltd v Schultz (Judgment)
  • Agtrack (NT) Pty Ltd v Hatfield (Judgment)
  • Paterson v Air Link Pty Ltd (Judgment)

No. 12 – 29 June 2005 – PDF 259KbLN12.pdf

  • Walsh v Australian Taxation Office – Reinstatement where the employment relationship has irrevocably broken down (Judgment)
  • Australian Securities and Investment Commission v Rich & Ors – Admissibility of expert evidence (Judgment)
  • Corey v Attorney-General's Department – Implications of providing misleading information in the security clearance process (Judgment)
  • High Court Rules 2004
  • Swain v Waverley Municipal Council – A municipal council's duty of care to swimmers at surf beach (Judgment)
  • Rummery and Federal Privacy Commissioner and Department of Justice and Community Safety – AAT awards compensation for breach of privacy (Judgment)
  • ACCC v Australian Safeway Stores and Mark Jones – Misuse of market power and price fixing (Judgment)
  • Bennett v Chief Executive Officer of the Australian Customs Service – Quoting the substance of legal advice in negotiations may make it subject to FOI (Judgment)
  • Griffith University v Tang (Judgment)
  • Commissioner of Taxation v Sleight (Judgment)
  • Seven Network (Operations) Limited v Media Entertainment and Arts Alliance (Judgment)

No. 11 – 22 October 2004 – PDF 159Kb

  • Bennett v President, Human Rights and Equal Opportunity Commission – Disclosure of information by APS employees (Judgment)
  • Shaw v Minister for Immigration and Multicultural Affairs – The constitutional meaning of 'alien' (Judgment)
  • Cole v South Tweed Heads Rugby League Football Club Limited – Licensed premises and duty of care for intoxicated patrons (Judgment)
  • North Australian Aboriginal Legal Aid Service Inc v Bradley & Northern Territory (Judgment)
  • Minister for Immigration and Multicultural and Indigenous Affiars v B (Judgment)
  • Bayside City Council v Telstra Corporation Limited (Judgment)
  • Silbert v Director of Public Prosecutions (WA) (Judgment)
  • Putland v The Queen (Judgment)
  • Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Judgment)
  • Blunden v Commonwealth (Judgment)
  • Attorney-General (WA) v Marquet (Judgment)
  • Paliflex Pty Ltd v Chief Commissioner of State Revenue (Judgment)
  • South Sydney City Council v Paliflex Pty Ltd (Judgment)
  • Purvis obo Hoggan v NSW & HREOC (Judgment)
  • Truoung v The Queen (Judgment)

No. 10 – 30 October 2003 – PDF 870Kb

  • British American Tobacco Australia Ltd v Western Australia – The constitution and the States (Judgment)
  • Austin and Anor v Commonwealth – Commonwealth constitutional powers and the States (Judgment)
  • Plaintiff S157 of 2002 v Commonwealth – Constitutional limits on restricting judicial review (Judgment)
  • NEAT Domestic Trading Pty Ltd v AWB Limited – Public law remedies and private bodies (Judgment)
  • Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (Judgment)
  • Re Maritime Union of Australia; Ex parte CSL Pacific Shipping (Judgment)
  • Oates v Attorney-General of the Commonwealth (Judgment)
  • Fittock v The Queen; Ng v The Queen (Judgment)
  • The Queen v Gee (Judgment)
  • Roberts v Bass (Judgment)
  • Re Minister for Immigration and Multicultural Affairs; Ex parte Te and Re Minister for Immigration and Multicultural Affairs; Ex parte Dang (Judgment)
  • Solomons v District Court of New South Wales (Judgment)
  • Macleod v Australian Securities and Investment Commission (Judgment)

No. 9 – 23 June 2003 – PDF 890Kb

  • Re Minister for Immigration and Multicultural Affiars; Ex parte Lam – Treaties and administrative decision-making: Teoh in question (Judgment)
  • Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors – Native title (Judgment)
  • The Daniel Corporation International Pty Ltd v Australian Competition and Consumer Commission – Powers to compel production of documents or information (Judgment)
  • Woolworths Limited v Fels; Coles Myer Limited v Fels - Powers to compel production of documents or information (Judgment)
  • Graham Barclay Oysters Pty Ltd v Ryan; Ryan v Great Lakes Council and Ors; State of New South Wales v Ryan and Ors
  • Governments and public instrumentalities: a reality check on their liability in negligence (Judgment)
  • Boral Besser Masontry Limited (now Boral Masonry Ltd) v Australian Competition and Consumer Commission – Abuse of market power (Judgment)
  • Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd – Unconscionable conduct and the Trade Practices Act (Judgment)

No. 8 – 29 August 2002 – PDF 886KbLN8.pdf

  • Minister for Immigration and Multicultural Affairs v Bhardwaj – Reversal of decisions (Judgment)
  • Luton v Lessels and Child Support Registrar – Validity of child support scheme (Judgment)
  • Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd – Confidentiality of information (Judgment)
  • Sullivan v Moody, State of South Australia and Ors – Determining whether a duty of care exists (Judgment)
  • Regie National des Usines Renault SA v Zhang (Judgment)
  • Pasini v United Mexican States (Judgment)
  • Re McBain; Ex parte Australian Catholic Bishops Conference, Re McBain; Ex parte Attorney-General of the Commonwealth Ex rel Australian Episcopal Conference of the Roman Catholic Church (Judgment)
  • SGH Ltd v Commissioner of Taxation (Judgment)
  • Roxborough v Rothmans of Pall Mall Australia Ltd (Judgment)
  • Cheung v The Queen (Judgment)
  • Wong v The Queen; Leung v The Queen (Judgment)
  • Shergold v Tanner (Judgment)
  • Mobil Oil Australia Ltd v Victoria (Judgment)

No. 7 – 15 October 2001 – PDF 526Kb

  • Re Patterson; Ex parte Taylor – Validity of ministerial appointments (Judgment)
  • Brodie v Singleton Shire Council – End of the road for the highway rule (Judgment)
  • Yougarla v Western Australia (Judgment)
  • Brownlee v The Queen (Judgment)

No. 6 – 20 May 2001 – PDF 1449KbLN06.pdf

  • Tepko Pty Ltd and Others v Water Board – Duty of care in providing advice or information (Judgment)
  • Durham Holdings Pty Ltd v NSW (Judgment)
  • Smith v ANL Ltd (Judgment)
  • Crampton v The Queen (Judgment)
  • Residual Assco Group Ltd v Spalvins (Judgment)
  • Re Macks; Ex parte Saint (Judgment)
  • Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (Judgment)
  • Cheng v The Queen (Judgment)
  • Jones v Bartlett – Landlords duty of care (Judgment)
  • Scott v Davis – Vicarious liability for negligence (Judgment)
  • Corrections Corporation of Australia Pty Ltd v Commonwealth of Australia - The Trade Practices Act and the Commonwealth (Judgment)
  • Austral Pacific Group Ltd (in liq) v Airservices Australia – Claims for contribution and indemnity under State legislation (Judgment)

No. 5 – 28 July 2000 – PDF 1414KbLN05.pdf

  • The Queen v Hughes – Prosecution of Corporation Law Offences (Judgment)
  • Bond v The Queen – Prosecution of Corporation Law Offences (Judgment)
  • Byrnes v The Queen - Prosecution of Corporation Law Offences (Judgment)
  • John Pfeiffer Pty Ltd v Rogerson – Private International Law: Intranational Torts (Judgment)
  • Commonwealth of Australia v CFMEU – Public Interest Immunity: Cabinet Documents (Judgment)
  • Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd – Standing to bring proceedings under the Trade Practices Act (Judgment)
  • Rann v Olsen – Defamation proceedings and Parliamentary privilege (Judgment)

No. 4 – 28 October 1999 – PDF 1472KbLN04.pdf

  • Puntoreiero v Water Administration Ministerial Corporation – Liability of statutory bodies (Judgment)
  • Re Governor, Goulburn Correctional Centre and Director Public Prosecutions (ACT); Ex parte Eastman – The constitutional status of Territory courts (Judgment)
  • Re Wakim; Ex parte McNally / Re Wakim; Ex parte Darvall - Cross-vesting schemes (Judgment)
  • Attorney-General of the Commonwealth v Breckler – Conferral of powers of determination on administrative bodies (Judgment)
  • Perre v Apand Pty Limited – Liability for duty of care (Judgment)

No. 3 – 31 May 1999 – PDF 771KbLN03.pdf

  • Telstra Corporation Limited v Worthing and Anor; Attorney-General of the Commonwealth v Telstra Corporation Limited Anor – State workers compensation laws and the Commonwealth (Judgment)
  • Commonwealth v Western Australia – State mining laws and the Commonwealth (Judgment)
  • James Hardie and Co Pty Ltd v Seltsam Pty Ltd – Liability of co-defendants to damages contributions (Judgment)
  • Bass v Permanent Trustee Co Limited Ors; Conca v Permanent Trustee Co Limited ORs; Woodlands v Permanent Trustee Co Limited Ors – The Trade Practices Act and the states (Judgment)

No. 2 – 27 May 1998 – PDF 1503KbLN02.pdf

  • Gould v Brown – Validity of corporations cross-vesting scheme (Judgment)
  • Commonwealth v WMC Resources Ltd – Acquisition of property (Judgment)
  • Nicolas v R – Validity of s 15X of the Crimes Act 1914 (Judgment)
  • Romeo v Conservation Commission of the Northern Territory – Liability of statutory authorities (Judgment)
  • Pyrenees Shire Council v Day; Eskimo Amber Pty Ltd v Pyrenees Shire Council – Omission by a public authority to exercise statutory duties (Judgment)
  • Oshlack v Richmond River Concil – The award of costs in 'public interest' litigation (Judgment)
  • Canwest Global Communications Corporation v Australian Broadcasting Authority – The meaning of control (Judgment)

No. 1 – 23 August 1997 – PDF 742KbLN01.pdf

  • Re the Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority – The Commonwealth's implied constitutional immunity from state laws (Judgment)
  • Lange v Australian Broadcasting Corporation – Freedom of speech: is it a constitutional right? (Judgment)
  • Levy v Victoria – Freedom of speech: is it a constitutional right? (Judgment)
  • Kruger v Commonwealth; Bray v Commonwealth – Removal of Aboriginal children: the legal issues (Judgment)
  • Commonwealth v Mewett; Commonwealth v Brandon; Commonwealth v Rock – Can a Commonwealth employee sue for employment – related injury? (Judgment)
  • Ha Lim v New South Wales – Duties of excise: the Commonwealth's exclusive power (Judgment)
  • Newcrest Mining (WA) Ltd v Commonwealth – Commonwealth acquisition of property (Judgment)


ISSN 1329-458X (Print)
ISSN 2204-6542 (Online)