Litigation Notes No. 7

Number 7
15 October 2001

Validity of Ministerial Appointments

The High Court has upheld the constitutional
validity of the practice adopted by successive governments
since 1987 of appointing more than one minister to
administer the same department of State. The Court
has also upheld the appointment of Parliamentary Secretaries
as ministers under ss 64 and 65 of the Constitution.
Where more than one person is appointed to administer
a department, it is a matter for the executive government
to make arrangements as to how the department should
be administered and for the Parliament to determine
the way in which those persons should account to it
for the department's administration.

Re Patterson; Ex parte Taylor

High Court of Australia, 6 September 2001
[2001] HCA 51; (2001) 182 ALR 657


This was an application to the High Court
challenging a decision of Senator Patterson, the Parliamentary
Secretary to the Minister for Immigration and Multicultural
Affairs, to cancel Mr Taylor's visa under s.501(3) of
the Migration Act 1958. Mr Taylor ('the applicant')
was born in the United Kingdom and in 1966, as a child,
came to Australia with his parents. He had not become
an Australian citizen. However, subject to the cancellation
of his visa, the applicant is entitled to remain permanently
in Australia and, like other UK citizens who migrated
to Australia before 1987, is entitled to vote at federal
elections. The Parliamentary Secretary cancelled the
applicant's visa on the basis that he was not of good
character (he has a number of convictions for sexual
assaults on children) and that it was in the national
interest to cancel the visa.

High Court's Decision

The High Court overturned Senator Patterson's
decision to cancel the visa, ruling that in making the
decision she had exceeded her jurisdiction on bases related
to the operation of the Migration Act. Gaudron, McHugh,
Kirby and Callinan JJ also accepted the applicant's argument
that he was not an 'alien' for the purpose of the Commonwealth's
power to make laws with respect to aliens (s.51(xix)
of the Constitution) and that the visa and deportation
provisions of the Migration Act were therefore not valid
in their application to him. In doing so they overruled
the High Court's decision in Nolan v Minister for
Immigration and Ethnic Affairs (1988) 165 CLR 178.
Although non-citizen British subjects who migrate to
Australia today would be within the aliens power, the
effect of the four majority judgments is that the deportation
provisions of the Migration Act cannot apply to a person
such as the applicant as a British subject who migrated
to Australia before, at the earliest, 1973 (when the Royal
Style and Titles Act 1973 (Cth), referring to the
Queen of Australia, was passed) and, in the view of three
of the majority, 1987 (when changes to Australian citizenship
laws came into effect), at least where the person has
been absorbed into the Australian community. Gleeson
CJ, Gummow and Hayne JJ dissented on this point and upheld Nolan.

However, the Court (Gleeson CJ, Gaudron,
Gummow, Kirby, Hayne and Callinan JJ, McHugh J not deciding)
rejected the applicant's argument that the Parliamentary
Secretary was not validly appointed under ss 64 and 65
of the Constitution and s.4 of the Ministers of State
Act 1952 and was not 'the Minister personally' for
the purposes of s.501(4) of the Migration Act. (Section
501(4) provides that only 'the Minister personally' can
make a decision under s.501(3).) The Court accepted the
submission, put by the Attorney-General who appeared
personally as intervener on this issue, that there was
nothing in ss 64 and 65 of the Constitution and the system
of responsible government for which the Constitution
provides that precludes the appointment of more than
one Minister to administer a department and, in particular,
the appointment of Senator Patterson as Parliamentary
Secretary to administer the Department of Immigration
and Multicultural Affairs with the Minister for Immigration
and Multicultural Affairs.

Text of the decision is available through
Scaleplus at:

Contacts for further information:

David Bennett
Senior Executive Lawyer

Tel: (02) 6253 7063
Fax: (02) 6253 7303

Jenny Burnett
Senior Executive Lawyer

Tel: (02) 6253 7012
Fax: (02) 6253 7303

End of the Road for the Highway Rule

The 'highway rule' had involved an 'immunity' for
authorities responsible for the maintenance of public
roads from liability (in the torts of negligence and
nuisance) for non-feasance in relation to the conditions
of roads and roadside footpaths. Non-feasance in this
context involves a failure to do anything, thus allowing
deterioration to take its course. On the other hand,
the immunity did not extend to 'misfeasance'. Misfeasance
involves doing something, but failing to do it adequately.
In the jointly decided cases of Brodie v Singleton
Shire Council and Ghantous v Hawkesbury City
Council, the High Court examined the utility of
the highway rule in Australian conditions. Five justices
of the High Court, sitting its full complement of seven,
rejected the highway rule as part of the common law
of Australia. They saw the rule as not supportable
in principle. On a more general level, the appeals
show the way in which the High Court approaches the
task of changing the common law in Australia.

Brodie v Singleton Shire Council;
Ghantous v Hawkesbury City Council

High Court of Australia, 31 May 2001
[2001] HCA 29; (2001) 180 ALR 145


In Brodie, a truck laden with pre-mix concrete
was travelling along a road maintained by the defendant
council. As fully laden, the truck weighed 22 tonnes.
The truck had crossed one wooden bridge on the road.
A sign on the approach to that bridge warned that it
had a weight limit of 15 tonnes gross. A short time later
the truck approached the next wooden bridge on the road.
There was no weight limit sign for this second bridge.
As the truck proceeded on to this bridge, the bridge
collapsed under the truck's weight. The bridge's supporting
wooden girders had been undermined by dry rot or termites
during its 50 year life. The collapse damaged the truck
and injured its driver. Both the truck's owner and the
driver sued the council in negligence and nuisance seeking
damages for their respective losses.

In Ghantous, the plaintiff, while seeking to
allow other pedestrians to pass, stepped on the edge
of a roadside footpath at a point where the earth verge
had subsided below the level of the footpath, lost her
footing and fell. The plaintiff sued the local council
for damages in respect of injuries she suffered through
the fall.

In Brodie, the trial judge was bound by the highway
rule, but ruled that the case was one of misfeasance
rather than non-feasance because the defendant council
had overlooked the state of the girders when it made
repairs to the surface planks on the bridge roadway.
However, this finding was rejected by the New South Wales
Court of Appeal. The Court of Appeal held that the work
done in repairing the surface planks had not extended
to any consideration of the stability of the bridge's
structure including any deterioration of its wooden girders.
The case therefore should have been decided as one of
non-feasance. The Court of Appeal said that the highway
rule applied, and ordered that judgment be entered for
the defendant. The plaintiffs sought special leave to
appeal to the High Court against this decision.

In Ghantous, both the trial judge and New South
Wales Court of Appeal had held that the case was one
of non-feasance and the highway rule therefore applied
to deny liability. The plaintiff sought special leave
to appeal to the High Court.

High Court's Decision

Gaudron, McHugh and Gummow JJ, in a joint judgment,
and Kirby J and Hayne J in separate judgments, held that
the highway rule should be abolished. Gleeson CJ and
Callinan J, by contrast, in separate judgments, held
that the highway rule was so entrenched in the common
law in Australia, with governments and local authorities
dependent upon its continued existence, that any change
to the rule should be a matter for the State and Territory
legislatures, not the courts.

In Brodie, Gaudron, McHugh, Gummow and Kirby
JJ granted special leave to the plaintiffs to appeal
and allowed the appeal, ordering that the case be remitted
to the New South Wales Court of Appeal to be determined
on the basis that the highway rule did not apply. Hayne
J held that on the facts the accident was caused by the
driver not observing the weight limit sign on the previous
bridge, not any failure on the part of the defendant
council. This caused him to join with Gleeson CJ and
Callinan J in granting special leave to appeal, but dismissing
the appeal.

Gaudron, McHugh and Gummow JJ examined two earlier High
Court decisions, Buckle v Bayswater Road Board (1937)
57 CLR 259 and Gorringe v Transport Commission (Tas)
(1950) 80 CLR 357, which had generally been understood
as authority for the highway rule's incorporation into
the common law in Australia. Buckle involved a
pedestrian who had suffered injury by stepping unsuspectingly
into a hole on the roadside. In Gorringe, the
driver of a truck and his passenger were killed when
the driver failed to see a large hole in the road surface
caused by a culvert underneath having recently collapsed
through flooding from heavy rain still falling at the
time of the accident. It was discovered that some of
the wood in the culvert structure had decayed. In each
of these cases, the defendant road authority was held
not liable.

Gaudron, McHugh and Gummow JJ noted that, since Buckle and Gorringe, the
law in other common law jurisdictions had moved away
from the path said to be dictated by those two cases.
In Canada, where there were distances and climatic conditions
no less diverse than in Australia, the distinction between
non-feasance and misfeasance, which underlay the highway
rule, was no longer observed. In the United Kingdom,
the rule had been abolished by legislation in 1961.

The foundation of the highway rule lay in conditions
in England which had not been replicated in Australia.
Originally, the parish in England had been responsible
for the upkeep of highways. The parish was not an incorporated
body and had no common revenue. There was no-one to sue
if the highway was not maintained and, in consequence,
injury suffered. In the nineteenth century in England,
the responsibilities of the parish for highways were
transferred to new statutory local government corporations.
Gaudron, McHugh and Gummow JJ noted that these conditions
had never applied in Australia. Rather, the responsibilities
borne by local government bodies in Australia for roads
were created by legislation in the beginning, and have
remained the province of legislation.

Gaudron, McHugh and Gummow JJ said (at para 102):

Whatever may be the general significance
today in tort law of the distinction between misfeasance
and non-feasance, it has become more clearly understood
that, on occasions, the powers vested by statute in a
public authority may give it such a significant and special
measure of control over the safety of the person or property
of citizens as to impose upon the authority a duty of
care. This may oblige the particular authority to exercise
those powers to avert a danger to safety or to bring
the danger to the knowledge of citizens otherwise at
hazard from the danger. In this regard, the factor of
control is of fundamental importance.

These justices saw the persistence of the categories
of misfeasance and non-feasance under the highway rule
as continuing to give rise to illusory distinctions.
This was particularly so in the case of the legal consequences
of repair or maintenance work. In some cases, repair
work which 'negligently fails to deal with' a danger,
or causes the danger 'to recur more quickly than ordinarily',
constitutes misfeasance. On the other hand, a failure
to attempt such repairs would be non-feasance. They saw
the highway rule as no longer commanding intellectual
assent (see para 107).

In addition, to the extent that there was still an alternative
cause of action to a plaintiff in highway accident cases
under the older tort of nuisance to that under the tort
of negligence, the majority ruled that the tort of negligence
should now be the exclusive basis of tort liability in
such cases.

Gaudron, McHugh, Gummow and Kirby JJ noted that legislation
governing main roads in New South Wales at the time of
the accident in Brodie (viz. 1992) provided that
all the powers and immunities of a council in relation
to a public road were to be enjoyed by the State Roads
and Traffic Authority. However, this did not justify
freezing the common law to continue its incorporation
of the highway rule.

Gaudron, McHugh and Gummow JJ said that, following the
abolition of the highway rule, authorities with statutory
powers to construct and maintain roads are obliged to
take reasonable care that their exercise or failure to
exercise those powers does not create a foreseeable risk
of harm to a class of persons (i.e. road users) which
includes the plaintiff. They said (at para 151):

The perception of the response by the
authority calls for, to adapt the statement by Mason
J in Wyong Shire Council v Shirt (1980) 146 CLR
40, at pp. 47-8, a consideration of various matters;
in particular, the magnitude of the risk and the degree
of probability that it will occur, the expense, difficulty
and inconvenience to the authority in taking the steps
described above to alleviate the danger, and any other
competing or conflicting responsibility or commitments
of the authority. The duty does not extend to ensuring
the safety of road users in all circumstances. In the
application of principle, much thus will turn upon the
facts and circumstances disclosed by the evidence in
each particular case.

Earlier in their judgment, Gaudron, McHugh and Gummow
JJ said (at para 104):

[F]inancial considerations and budgetary
imperatives may fall for consideration with other matters
when determining what should have been done to discharge
a duty of care.

In Ghantous, all justices were agreed that, regardless
of the highway rule, there had been no negligence on
the part of the defendant council. Gleeson CJ (at para
7) quoted the words of Cumming-Bruce J in Littler
v Liverpool Corporation [1968] 2 All ER 343, at p.
345: 'A highway is not to be criticised by the standards
of a bowling green'. Similarly, Gaudron, McHugh and Gummow
JJ said (at para 163) that persons 'ordinarily will be
expected to exercise sufficient care by looking where
they are going and perceiving and avoiding obvious hazards,
such as uneven paving stones, tree roots or holes'. There
is a strong implication in the judgment of Callinan J
(see para 355), whose views on the Ghantous appeal
were generally supported by five of the other justices,
that the plaintiff's fall was caused by her own lack
of care.

Text of the decision is available through Scaleplus

Contact for further information:

Paul Sykes
Senior Lawyer

Tel: (02) 6253 7050
Fax: (02) 6253 7302

High Court Constitutional Decisions in Brief

Yougarla v Western Australia
9/8/01, [2001] HCA 47; (2001) 181 ALR 371

The High Court unanimously dismissed this appeal, ruling
that the Aborigines Act 1905 (WA) ('the 1905 WA
Act') had been effective to repeal s.70 of the Constitution
Act 1889 (WA) ('the WA Constitution').

Section 70 of the WA Constitution (which is a schedule
to the Western Australia Constitution Act 1890 (Imp)
('the 1890 Imperial Act')) required the annual appropriation
of certain amounts of money for the welfare of Aboriginal
people. Section 73 of the WA Constitution required that
a bill amending or repealing s.70 be 'reserved by the
Governor for the signification of Her Majesty's pleasure
thereon'. The High Court decided that requirements in
1842 and 1850 Imperial Acts, continued in force by s.2
of the 1890 Imperial Act, as to the manner and form of
reservation for Royal Assent and the making known in
the colony in question of the fact that Royal Assent
had been given had either been complied with by or were
not applicable to the 1905 WA Act, which was therefore
effective to repeal s.70 of the WA Constitution.

This conclusion meant that it was unnecessary for the
Court to decide issues raised by WA about s.106 of the
Commonwealth Constitution, on which the Commonwealth
Attorney-General had intervened. Section 106 provides
that '[t]he Constitution of each State of the Commonwealth
shall, subject to this Constitution, continue as at the
establishment of the Commonwealth…until altered
in accordance with the Constitution of the State'. WA
argued that the Constitution of a State for the purposes
of s.106 is confined solely to the legislation of that
State and s.106 therefore excluded the need to comply
with any manner and form requirements imposed by Imperial
legislation. The Attorney-General argued that a State
'Constitution' for the purposes of s.106 is not necessarily
the same as the relevant State Constitution Act as in
force at 1900, but would include the provisions of the
Imperial Acts presently relevant which impose manner
and form requirements for the repeal of provisions of
the WA Constitution. The joint judgment in the High Court
observed that WA's submission 'appears to be at odds
with earlier judgments in this Court' (para 62) and its
acceptance 'would require the rejection of what has been
said in various decisions, including those most recently
referred to by Brennan CJ in McGinty v Western Australia ((1996)
186 CLR 140 at 171-173)'. In a separate judgment, Kirby
J agreed with the Commonwealth's submission that the
Imperial manner and form provisions were part of the
WA Constitution for the purposes of s.106 (paras 83-99).

Brownlee v The Queen
21/6/01, [2001] HCA 36; (2001) 180 ALR 301

The High Court dismissed this appeal from the NSW Court
of Criminal Appeal in which the appellant argued that
features of his trial meant that it was not conducted
'by jury' as required by s.80 of the Constitution. The
High Court unanimously held that the constitutional concept
of 'trial by jury' required by s.80 for trials on indictment
does not preclude the jurors from separating (for example,
overnight or for weekends) after they have retired to
consider their verdict and does not preclude a conviction
by a jury consisting of less than 12 members, at least
where the jury originally empanelled for the trial consisted
of 12 members and two jurors were discharged in the course
of the trial. The Attorney-General intervened to argue
that s.80 did not invalidate the trial in this case.

Contact for further information:

David Bennett
Senior Executive Lawyer

Tel: (02) 6253 7063
Fax: (02) 6253 7303

Jenny Burnett
Senior Executive Lawyer

Tel: (02) 6253 7012
Fax: (02) 6253 7303

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

The material in these notes is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please
contact AGS before any action or decision is taken
on the basis of any of the material in these notes.

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