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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Issue Date In this issue File  
30  29 November 2019
  • Tasmanian onsite protest laws invalid (Brown v Tasmania)
  • High Court upholds safe access zones (Clubb v Edwards; Preston v Avery)
  • Reduced cap on electoral expenditure by third party campaigners invalid (Unions NSW v New South Wales)
  • The APS Code of Conduct does not infringe the implied freedom (Comcare v Banerji)
29 29 November 2019
  • Competing regulation of political donations (Spence v Queensland)
  • Legislation preventing disclosure of information to court invalid (Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection)
  • Application of State criminal laws in federal jurisdiction (Rizeq v State of Western Australia)
  • State parentage laws do not apply in determining who is a parent under the Family Law Act
    (Masson v Parsons)
  • High Court rejects challenge to Australian Marriage Law Postal Survey (Wilkie v Commonwealth; Australian Marriage Equality Ltd v Cormann)
  • State tribunals cannot determine federal matters (Burns v Corbett; Burns v Gaynor; Attorney-General for NSW v Burns; Attorney-General for NSW v Burns; State of NSW v Burns)
  • NT WHS legislation not inconsistent with Commonwealth civil aviation law  (Work Health Authority v Outback Ballooning Pty Ltd)
  • Australian Electoral Commission validly authorised to publish ‘two-candidate-preferred’ results before close of all polls (Palmer v Australian Electoral Commission)
  • NSW Court of Appeal finds that NCAT is not a ‘court of a State’ (Attorney-General for New South Wales v Gatsby
PDF  451KB
28 16 November 2019
  • Dual citizens ineligible for election to the Senate or House of Representatives by reason of section 44(i) (Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon)
  • High Court finds ‘constitutional imperative’ exception to section 44(i) is narrow in scope (Re Gallagher)
  • Holding an office of profit during the process of being chosen renders a person ineligable to be elected (Re Nash (No 2))
  • Questions of qualification cannot be determined in common informer’s action (Alley v Gillespie)
  • Disqualification for holding an office of profit under the Crown (Re Lambie)
  • Ineligible candidate remains incapable of being chosen in special count to fill their own Senate vacancy (Re Kakoschke-Moore)
27 17 November 2017
  • Former Senator Robert Day held disqualified by reason of interest in Commonwealth lease agreement (Re Day (No 2))
  • Mr Rodney Culleton ineligible to have been elected as a senator by reason of conviction (Re Culleton (No 2))
  • Commonwealth involvement in detention on Nauru upheld (Plaintiff M68/2015 v Minister for Immigration and Border Protection)
  • Challenge to Senate electoral reforms dismissed (Day v Australian Electoral Officer (SA))
  • Western Australian Bell Group Act wholly invalid (Bell Group NV (in liquidation) v Western Australia; WA Glendinning & Associates Pty Ltd v Western Australia)
  • High Court rejects challenge to the close of the electoral rolls (Murphy v Electoral Commissioner)
  • Changes to parliamentarians’ superannuation and Life Gold Pass valid (Cunningham v Commonwealth)
  • Validity of Northern Territory’s ‘paperless arrest’ laws upheld (North Australian Aboriginal Justice Agency Ltd v Northern Territory)
  • Compulsory examinations in a voluntary winding-up – judicial power (Palmer v Ayres; Ferguson v Ayres)
  • Detention of non-citizens brought to Australia for a temporary purpose (Plaintiff M96A/2016 v Commonwealth)
  • Trial by judge alone not permitted by section 80 of the constitution (Alqudsi v The Queen)

Decisions in brief:

  • External affairs power extends to conduct within Australia preparatory to engaging in hostile activity in another State (Alqudsi v Commonwealth of Australia; Alqudsi v R)
  • State regulation of coastal fisheries (Babington v Commonwealth)
  • Right of individuals to acquire proprietary rights over terra nullius under international law (Ure v Commonwealth)
  • Commonwealth funding of religious schools (Hoxton Park Residents Action Group Inc v Liverpool City Council)
PDF 1.32MB
26 13 November 2015
  • 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 282 KB
No. 23 12 November 2013 PDF 230KB
No. 22 10 December 2012
  • JT International SA v Commonwealth; British American Tobacco Australasia Limited v Commonwealth – Validity of tobacco plain packaging laws upheld. (Commonwealth submissions (PDF): JTIBATAjudgment)
  • 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): BetfairSportsbet; judgment: BetfairSportsbet)
  • 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
  • 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): HaskinsNicholas; judgment: HaskinsNicholas)
  • 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
  • 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 AgricultureArnold)
  • 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)

For more Litigation notes see the AGS Litigation notes archive...