Litigation Notes No. 11

Number 11
22 October 2004

Disclosure of information by APS employees

The constitutional meaning of 'alien'

Licensed premises and duty of care for intoxicated patrons

High Court decisions in brief

Disclosure of information by APS employees

Margaret Byrne

Margaret Byrne Senior General Counsel
T 02 6253 7078
F 02 6253 7317

Richard Harding

Richard Harding Senior General Counsel
T 02 6253 7026
F 02 6253 7304

The decision in this case casts doubt on the validity
of regulation 2.1 of the Public Service Regulations 1999,
which puts restrictions on the disclosure of official information
by public servants. It may be that the regulation will
have to be replaced with one that is cast more narrowly.
But aside from this regulation there are other obligations
on public service employees not to disclose information.

Bennett v President, Human Rights and Equal Opportunity
Federal Court of Australia, 10 December 2003
[2003] FCA 1433; 204 ALR 119


Mr Bennett, the applicant, is an APS employee in the Australian
Customs Service and is the Federal President of the Customs
Officers' Association. He made a complaint to the
Human Rights and Equal Opportunity Commission (HREOC) that
the CEO of Customs had:

(i) infringed his human right of freedom of expression;

(ii) discriminated against him on the basis of his trade
union activity and his political opinion.

HREOC examined the claim and decided to discontinue its
inquiry because it was satisfied that the acts of Customs
were not within (i) or (ii) above.

Mr Bennett had been given directions by Customs to refrain
from speaking to the media about various public service
issues. Those directions had been grounded on regulation
7(13) of the then Public Service Regulations.

The text of that regulation (which was repealed in 1999)
was as follows:

An APS employee must not, except in the course of his
or her duties as an APS employee or with the Agency
express authority, give or disclose, directly or indirectly,
any information about public business or anything of
which the employee has official knowledge.

One of the key bases of Mr Bennett's challenge was
that regulation 7(13) of the Public Service Regulations
(made under the Public Service Act 1922) was invalid, because
it infringed the implied constitutional freedom of political
communication. Mr Bennett challenged HREOC's decision
to discontinue its inquiry, seeking an order of review
under the Administrative Decisions (Judicial Review)
Act 1977.

One of the functions of HREOC is to inquire into breaches
of human rights and discrimination. Human rights are, among
other things, rights recognised in the International Covenant
on Civil and Political Rights (the ICCPR). Article 19(2)
of the ICCPR gives everyone the right of freedom of expression.
Article 19(3) provides that that right may be subject to
certain restrictions. But under Article 19(3) these restrictions
may only be as provided by law, and they must be necessary
for respect of the rights or reputations of others, or
for the protection of national security or of public order
or of public health or morals.


In 1998 Mr Bennett was given a formal warning by the CEO
of Customs not to make media comment which involved disclosure
of information about public business or anything of which
he had official knowledge. He was warned that failure to
comply with the direction could lead to disciplinary action.
Mr Bennett disputed the lawfulness of the direction. Mr
Bennett did a media interview in November 1998. He was
subsequently charged with a breach of regulation 7(13).
In May 1999 he was found to have breached that regulation,
and a penalty of reduction in salary was later imposed
on him.

In October 1999, the disciplinary decisions were revoked,
on the basis of AGS advice that regulation 7(13) must be
read down so as not to apply to public comment on matters
of public administration already on the public record.

The decision

Finn J found that:

  • the subject matter of the directions given to Mr Bennett
    was set by regulation 7(13)
  • the regulation is invalid in that it infringes the
    implied freedom of political communication and cannot
    be read down so as to avoid that consequence
  • even if the regulation were not invalid, the directions
    infringed Mr Bennett's right to freedom of expression
    under Art 19(2) of the ICCPR as they were not necessary
    for the protection of public order under Art 19(3)
  • but the direction may have been a lawful and reasonable
    exaction of loyalty from Mr Bennett which was not inconsistent
    with Article 19 (based on his duty of 'loyalty
    and fidelity' as an APS employee), and
  • because this possibility was not addressed by HREOC
    the matter must go back to HREOC for further consideration.

Summary of reasons

Regulation 7(13)

Finn J found regulation 7(13) to be a 'catch-all' provision,
unconcerned with whether the information was publicly available.
He subjected the regulation to the test in Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520 at 567, which

  • whether the law effectively burdens freedom of communication
    about government or political matters
  • if it does, whether the law is reasonably appropriate
    and adapted to serve a legitimate end which is compatible
    with the maintenance of the system of representative
    and responsible government prescribed by the Constitution.

Finn J found the regulation did burden freedom of political
communication. It operated in the heartland of the freedom,
that is, communication about political or governmental
matters and about the executive organs of the State [78].

Finn J accepted that the effective working of government
is a legitimate end compatible with the constitutionally
prescribed system of government [95] but found that regulation
7(13) was not reasonably appropriate and adapted to that
end because of the catch-all nature of the provision.

Finn J noted that there have been a number of government
reports (particularly at State level) highlighting the
need for open government [85]. He found that the regulation
was so wide that it placed an almost impossible demand
in domestic, social and work-related settings; and that
the control it imposes impedes the flow of information
to the community [98]–[99].

Finn J did however recognise that there are species of
official information disclosure of which might properly
be regulated [100]. For example, the Commonwealth can validly
prohibit the disclosure of information to protect national
security, cabinet secrecy and the impartiality of the public
service [80]. But he noted that regulation 7(13) does not
differentiate between species of information or consequences
of disclosure [101]. He referred with apparent approval
to a South Australian secrecy provision which is not a
catch-all provision [106], and concluded that regulation
7(13) was invalid [108].

The Customs direction and the ICCPR

Finn J carried out this analysis on the basis of the assumption
that regulation 7(13) was valid. As such, the Customs directions
would have been provided for by law, but the question would
arise whether those directions were protected by Art 19(3)
of the ICCPR as being necessary for the protection of public
order. Finn J found that 'furthering the efficient
conduct of government' hardly qualifies as a 'fundamental
principle, consistent with respect for human rights, on
which a democratic society is based'. He concluded
that the regulation was not necessary for the protection
of public order [114]. This conclusion was explicitly based
on the inappropriateness of the terms of regulation 7(13)

Mr Bennett's duty of loyalty and fidelity

Finn J found that as an employee Mr Bennett owed the Commonwealth
a common law implied duty of loyalty and fidelity. He noted
that in public sector settings the duty is also sourced
in status considerations, and that there has been an emphasis
on the distinctive employment requirement of loyalty to
the Crown, which translates into loyalty to the Government
of the day [117].

The Commonwealth argued that even if regulation 7(13)
was invalid, the duty of loyalty coupled with the power
to give directions justified what had been done to Mr Bennett.

Finn J noted that the duty of loyalty and fidelity has 'notorious
uncertainties' and that its applications tend to
be instance specific [121]. He decided to remit the matter
to HREOC but made a number of observations on the duty
of loyalty:

  • the duty must only be developed in a way which does
    not unnecessarily impair the constitutional freedom of
  • the imprecision in the duty is well recognised, so
    that the content of the duty may be instance specific,
    on the facts of each case
  • there is no significant Australian jurisprudence on
    the subject in a public service setting
  • in this case Mr Bennett was both an APS employee and
    the president of a registered industrial organisation,
    and it may be that account would need to be taken of
    this in deciding whether he had been disloyal
  • the duty of loyalty and fidelity overlaps with the
    equitable duty in employment settings to protect confidential

The discrimination issue

Finn J noted that even though regulation 7(13) was invalid,
it was open to Customs to justify its actions. This might
be done on the basis that Mr Bennett was being required
to adhere to his duty of loyalty and fidelity, and that
that duty was one of the inherent requirements of his job
[140]. Finn J found that the duty of loyalty was an inherent
requirement of Mr Bennett's public service employment
[145]. But the question as to whether Customs could properly
rely on that duty to justify its actions towards Mr Bennett
had not been addressed by HREOC.

Finn J then offered some observations on how the duty
of loyalty might be affected in a situation where an employee
is also an official of a registered industrial organisation,
serving two masters whose interests could be antagonistic:

  • the fact that an employee holds an office in an industrial
    organisation does not alter their obligation to their
  • an employee cannot rely on an inconsistent duty to
    a third party to justify their failure to discharge an
    obligation owed to their employer, for example, a duty
    of confidence
  • an employer may permit an employee to engage in conduct
    which would otherwise breach an obligation owed to an
  • the freedom of association provisions of the Workplace
    Relations Act 1996 preclude the Commonwealth as employer
    from taking certain actions against a union official,
    if the action is taken for a prohibited reason.

Finn J concluded by noting that any proper consideration
of the loyalty obligation of the public service employee–union
official would have to address the issue of dual loyalties

Implications of the decision

Finn J's finding of invalidity of old regulation
7(13) should be taken as casting very serious doubt on
the validity of regulation 2.1 of the Public Service Regulations
1999, which is in substantially identical terms to old
regulation 7(13).

But this does not mean that it is now open slather for
APS employees when it comes to disclosure of information.
There remain in place a large number of sources, in specific
statutory provisions (including in the Public Service Act),
in common law and in equity that control the disclosure
of information by public servants.

In particular, the decision does not mean that a properly
confined direction to an employee not to disclose information
could not be both lawful and reasonable.

A question that remains to be decided is to what extent
a direction not to disclose information would run foul
of Article 19 of the ICCPR and, if it did, whether this
would render it unreasonable and so beyond the power in
subsection 13(5) of the Public Service Act.

Because of the vagueness of the duty of loyalty and fidelity,
satisfactory resolution of this issue is only likely to
be achieved by the creation of a much more sharply focused
non-disclosure provision in the Public Service Regulations.

Beyond the APS Code of Conduct, the decision may have
implications for a range of catch-all secrecy provisions
in Commonwealth (and State) legislation.

The decision also highlights the complexity of placing
constraints on the disclosure of information by an APS
employee who is also a union official.

Text of the decision is available at: <>.
This note was originally published in the email service
AGS Casenotes (No. 53, 12 December 2003).

Margaret Byrne is a Senior General Counsel who is expert
in industrial relations and employment law, especially
in relation to agreement-making, termination of employment
and issues arising from administrative rearrangements.
She also advises on constitutional aspects of industrial
relations and employment law.

Richard Harding is a Senior General Counsel who specialises
in public service employment law and workplace relations
law. He has a background in people management policy in
the Australian Public Service and has recently completed
work as legal advisor to a major public service reform
project in Samoa sponsored by AusAID.

The constitutional meaning of 'alien'

Graeme Hill

Graeme Hill Senior Lawyer
T 02 6253 7080
F 02 6253 7303

Jenny Burnett

Jenny Burnett Senior General Counsel
T 02 6253 7012
F 02 6253 7303

A British subject who comes to Australia after 1949
is an 'alien' for constitutional purposes, if
he or she has not been naturalised. The High Court's
decision in Shaw overrules Re Patterson; Ex parte
Taylor (2001) 207 CLR 391, and returns to the position decided
in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178.

Shaw v Minister for Immigration and Multicultural Affairs
High Court of Australia, 9 December 2003
[2003] HCA 72, (2003) 203 ALR 143


Mr Shaw was born in the United Kingdom, and came to Australia
in 1974, aged 2. He has not left since. Mr Shaw has not
been naturalised as an Australian citizen, but under Commonwealth
migration law he was taken to have a transitional (permanent)
visa. The Minister sought to cancel that visa, on the basis
of Mr Shaw's criminal record. The consequence of
cancellation under Commonwealth migration law was that
Mr Shaw became an 'unlawful non-citizen' and
liable to be removed from Australia. The constitutional
power to remove Mr Shaw largely depended on whether he
was within the 'aliens' power in s 51(xix)
of the Constitution (although the Minister also made other

Generally, a non-citizen is an 'alien'. In
Patterson, however, a majority of the High Court held that
there was a middle category of 'non-citizen non-aliens',
consisting of British subjects who arrived in Australia
before a certain date. There was disagreement in Patterson over what that date was: Gaudron and Kirby JJ held it was
1987, McHugh J held it was 1973, and Callinan J agreed
with both Kirby and McHugh JJ. Importantly, however, Patterson held that these 'non-citizen non-aliens' were
not within the aliens power and could not be removed from
Australia under Commonwealth migration law.


In Shaw, the Minister argued that this middle category
of 'non-citizen non-aliens' should be discarded,
in line with the High Court's earlier decision in
Nolan. That argument was accepted by Gleeson CJ, Gummow
and Hayne JJ (who had dissented on this issue in Patterson),
and by Heydon J (who was appointed to the High Court after
Patterson was decided).

Majority: A non-citizen is an 'alien'

The majority (Gleeson CJ, Gummow and Hayne JJ in a joint
judgment, with Heydon J agreeing) held that laws under
s 51(xix) can define who is an alien, the consequences
of being an alien, and how the status of 'alien' is
removed by naturalisation. In this sense, citizenship – while
a statutory concept – is the obverse of being an
alien [2].

The majority accepted that the Commonwealth Parliament
does not have unlimited power to define who is an alien
[9]. However, the constitutional term 'alien' includes
at least a person born outside Australia to parents who
were not Australian citizens, who has not been naturalised
under Australian law and who entered Australia after the
commencement of the Australian Citizenship Act 1948 (Cth)
on 26 January 1949 [7], [32]. In the majority's view,
Mr Shaw was an alien under that definition.

Previously, the majority in Patterson had concluded that
a British subject who came to Australia before a certain
date (either 1973 or 1987) was not an 'alien' for
the purposes of the Australian Constitution. The Shaw majority
rejected that conclusion, noting that:

  • the Australian Constitution uses the expression 'subject
    of the Queen', not 'British subject' [10];
  • Australia gradually developed legal and political
    independence from the UK during the first half of the
    20th century. This independence meant that, when Australia
    enacted its own citizenship laws in 1948, the constitutional
    expression 'subject of the Queen' meant subject
    of the Queen of Australia, not the Queen of the UK [14]–[20];
  • the Constitution contemplated changes in the political
    and constitutional relationship between Australia and
    the UK, particularly s 51(xxxviii) (which enables the
    Commonwealth, with the concurrence of the States, to
    exercise a power that in 1901 could only be exercised
    by the UK Parliament) [26]–[27].

The majority in Shaw therefore concluded that a person
who (a) is born outside Australia to non-Australian parents,
(b) entered Australia after the commencement of the Australian
Citizenship Act 1948 (Cth), and (c) has not been naturalised
under Australian law is an 'alien' for constitutional
purposes [32]. That conclusion meant that Mr Shaw could
be removed from Australia under Commonwealth migration
laws. In his separate judgment, Heydon J left open the
possibility that, even at 1901, a British subject was an 'alien' for
the purposes of the Australian Constitution [190].

Dissent: A British subject who arrives before 1986 is
not an 'alien'

The dissenting justices in Shaw (McHugh, Kirby and Callinan
JJ) had been in the majority in Patterson. They emphasised
here that a majority in Patterson had rejected the simple
distinction between 'citizen' and 'alien'.
In their view, the High Court should now resolve the disagreement
over when a person is a 'non-citizen non-alien',
rather than discarding that notion altogether. Although
these justices had taken different views on this issue
in Patterson, they agreed in Shaw that the relevant date
was the enactment of the Australian and UK Australia Acts
on 3 March 1986 [51]–[52] (McHugh J), [110]–[111]
(Kirby J), [177]–[178] (Callinan J). Mr Shaw had
arrived in Australia before 1986 and therefore, in the
view of the dissenting justices, could not be removed from
Australia as an 'alien'.

Other arguments: immigration power, external affairs,
and implied nationhood

The Minister also argued that Mr Shaw was an 'immigrant' within
s 51(xxvii) of the Constitution. The Shaw majority did
not need to deal with this argument; however, it was rejected
by the dissenting justices. The dissenting justices held
that Mr Shaw had been absorbed into the Australian community
(even though he had engaged in criminal activity since
he was 14), and was therefore no longer an 'immigrant' [46]
(McHugh J), [115]–[121] (Kirby J), [154] (Callinan

Finally, the Minister argued that Mr Shaw could be removed
from Australia under the external affairs power, or the
so-called 'implied nationhood' power. Again,
the majority justices did not need to deal with these arguments,
and the dissenting justices rejected them [122]–[126]
(Kirby J), [181]–[182] (Callinan J); see also [46]
(McHugh J).

Precedent in constitutional cases

Before Shaw, the question of whether a British subject
like Mr Shaw was an 'alien' had been considered
by the High Court in Nolan and Patterson. The 6:1 decision
in Nolan that these British subjects were 'aliens' was
overruled by the 4:3 decision in Patterson, which in turn
was overruled by the 4:3 decision in Shaw. Kirby J was
critical of the majority in Shaw, stating that 'chance
happenings affecting [the Court's] composition' should
not change the governing law [60]. He also stated that
justices of the High Court should normally give effect
to majority rulings on the Constitution, to avoid 'the
spectacle of deliberate persistence in attempts to overrule
recent constitutional decisions on identical questions' on
the basis of retirements from and new appointments to the
Court [76].

The majority, however, raised a question whether Patterson had even been effective in overruling Nolan. According
to the Shaw majority, the High Court should not be taken
to have overruled its earlier decisions unless the new
doctrine 'may readily be discerned' by lower
courts in the Australian hierarchy. On that approach, the
majority held in Shaw, the decision in Patterson 'plainly
fails to pass muster' [36].

In any event, the Shaw majority considered that departing
from Patterson was in line with the Court's general
approach to overruling its earlier decisions [39].

  • The discussion of the aliens power in Patterson did
    not rest upon a principle worked out in a succession
    of cases. Indeed, Patterson itself had overruled the
    relatively recent decision of Nolan.
  • Moreover, the aliens power issue was not necessary
    to decide Patterson. In Patterson, the conclusion that
    the Minister's decision should be set aside for
    non-constitutional reasons provided a 'clear alternative
    basis' for the High Court's decision.
  • The difficulty faced by lower courts in applying the
    majority judgments in Patterson militated against maintaining
    that approach.
  • Finally, the majority also noted that the Minister
    had moved 'as quickly as may be' to obtain
    reconsideration of Patterson.

Other cases about the definition of 'alien'

Shaw clarifies an important aspect of the constitutional
definition of 'alien'. However, other issues
remain. For example, in Singh v The Commonwealth [2004]
HCA 43 (9 September 2004), the High Court held (with McHugh
and Callinan JJ dissenting) that a child born in Australia
of non-citizen parents can be treated as an 'alien',
particularly if the child is a citizen of another country.
Conversely, in Taurino v Minister for Immigration and
Multicultural and Indigenous Affairs (argued before Wilcox J on 9 September
2004), the applicant argued that a person born outside
Australia to an Australian citizen cannot be treated as
an 'alien'. Judgment is reserved in Taurino.

The constitutional definition of 'alien' also
arises in Re Battersby; Ex parte Ame. The prosecutor in
that case is challenging the validity of Australian laws
that provided that people who became citizens of Papua
New Guinea on independence in 1975 were no longer Australian
citizens. A case has been stated for the consideration
of the Full Court of the High Court.

Text of the decision is available at: <>.
This note updates an earlier version published in the email
service AGS Casenotes (No. 52, 11 December 2003).

Jenny Burnett is a Senior General Counsel who has expertise
in constitutional law and litigation, jurisdiction of courts
and statutory interpretation.

Graeme Hill is a Senior Lawyer in constitutional litigation,
with a particular expertise in federal jurisdiction and
inter-governmental immunities.

Licensed premises and duty of care for intoxicated patrons

Paul Sykes

Paul Sykes Corporate Adviser
Litigation & Dispute Management
T 02 6253 7050 F 02 6253 7302

The High Court, by a 4 to 2 majority, has ruled that,
even if a licensed club could come under a duty of care
in negligence not to serve alcohol to an inebriated patron,
the running down of the plaintiff by a passing motor vehicle,
shortly after she left the defendant club in a heavily
inebriated state, was not attributable to the breach of
any such duty.

Cole v South Tweed Heads Rugby League Football Club Limited
High Court of Australia, 15 June 2004
[2004] HCA 29; (2004) 207 ALR 52

The case is another in the law of negligence where a marked
divergence of thinking emerges from different members of
the High Court. This is not a criticism of the Court. Rather,
it shows the complex issues that these cases raise for
courts, concerning the response of the common law to broad
social and moral issues such as what protection the individual
is entitled to at the hands of others in exercising their
freedom of choice in matters such as lifestyle, self-fulfilment
and leisure.

Similar divergences emerged last year in the case of Cattanach
v Melchior (2003) 199 ALR 131 where, the High Court by
a 4 to 3 majority, cleared the way for Australian courts
to award damages at common law for the costs of raising
a healthy child conceived in consequence of a negligently
performed sterilization procedure (see AGS Casenotes No.
50, 25 July 2003). (This latter decision has already been
legislatively nullified in New South Wales, at least in
its application to cases arising after the taking effect
of relevant provisions of the Civil Liability Amendment
Act 2003 (No. 94 of 2003) on 19 December 2003 inserting
Part 11 (ss 70 and 71) into the Civil Liability Act


The defendant licensed club, the premises of which included
on-site bar facilities for members and guests, was sued
in negligence by the plaintiff, a middle-aged woman, for
injury she suffered in 1994, when she was struck by a passing
motor vehicle very shortly after leaving the club premises
in early evening. The woman had become heavily inebriated
through prolonged drinking at the club's bar (having
been on the club premises for some eight hours). Upon leaving
the club, the plaintiff had refused the club's offer
to arrange travel home for her.

The driver of the motor vehicle which struck the plaintiff
was the other defendant to the damages claim.

The New South Wales Court of Appeal, in overturning the
trial judge's decision, ruled unanimously that there
was no duty of care upon the club to the plaintiff in relation
to the serving of alcohol to her at the bar to safeguard
her against the injury she suffered as an inebriated pedestrian
in the immediate aftermath of her departure from the club

The plaintiff obtained special leave to appeal to the
High Court. The High Court dismissed the appeal by a 4
to 2 majority (McHugh J and Kirby J dissenting). Heydon
J did not sit, having participated, while still a member
of the Court of Appeal, in the decision under appeal.


Of the majority, Gleeson CJ and Callinan J, in separate
judgments, rejected the existence of a general duty of
care upon the operator of licensed premises to protect
a patron from the consequences of becoming inebriated through
consuming alcohol served on the premises. Gleeson CJ gave
the strongest analysis of legal principle in support of
this position. He said [14] and [15]:

A duty to take care to protect an ordinary adult person
who requests supply from risks associated with alcohol
consumption is not easy to reconcile with a general rule
that people are entitled to do as they please, even if
it involves a risk of injury to themselves. The particular
circumstances of individual cases, or classes of case,
might give rise to such a duty, but we are not here concerned
with a case that is out of the ordinary.

Again, as a general rule a person has no legal duty
to rescue another. How is this to be reconciled with
a proposition that the respondent had a duty to protect
the appellant from the consequences of her decision to
drink excessively? There are many forms of excessive
eating and drinking that involve health risks but, as
a rule, we leave it to individuals to decide for themselves
how much they eat and drink. There are sound reasons
for that, associated with values of autonomy and privacy.

Callinan J endorsed the rejection of a duty of care by
the Court of Appeal in the decision under appeal. He supported
the comments of Heydon JA (as he then was) in that decision
that such a duty would 'call for constant surveillance
and investigation of the condition of customers',
and 'might oblige publicans to restrain customers
from departing the licensed premises until some guarantee
of their safety after departure existed'.

The two
other members of the majority, Gummow and Hayne JJ, in
their joint judgment, chose not to address the question
whether any duty of care existed. They said that, if the
defendant licensed club did owe a duty to ensure that the
plaintiff did not fall into danger when she left the premises,
the club here had discharged that duty by offering safe
transport home (which the plaintiff rejected). They said
that, if the club owed a duty of care in monitoring the
amount of alcohol the plaintiff had consumed, a breach
of that duty was not the cause of the injuries the plaintiff
sustained when struck by the motor vehicle.

In the minority,
McHugh J saw the club, as occupier of the premises, owing
a duty to the plaintiff to protect
the plaintiff, as an entrant to the premises, from all
activities carried out on the premises, including the sale
of food and beverages and their consumption. This extended
to taking affirmative action by refusing to serve the plaintiff
with alcohol once her inebriated state was apparent. Kirby
J took a slightly different approach. He did not rely upon
the club's duty as an occupier of premises to entrants.
Instead, he founded the duty of care more directly on the
intoxicating effects of alcohol, and the commercial benefits
to the club from the sale of alcohol on the club's
premises. In doing so, he downplayed any influence of the
plaintiff's exercise of free will. Kirby J said [91]:

law of tort exists not only to provide remedies for injured
persons where that is fair and reasonable and consonant
with legal principle. It also exists to set standards in
society, to regulate wholly self-interested conduct and,
so far as the law of negligence is concerned, to require
the individual to act carefully in relation to a person
who, in law, is a neighbour.

State of the law

The state of the law appears to be that
(if one treats Heydon JA's judgment in the Court
of Appeal as indicative of the view he would hold as a
member of the High Court
in a future case) three members of the High Court support
the position that a licensed club operator or publican
owes no general duty of care to a patron with respect to
the patron's consumption of alcohol served on the
premises. Two take a contrary position, while the remaining
two are undecided. Of the last two, if past experience
in negligence cases is any guide, Hayne J, and, to a slightly
lesser extent, Gummow J, are probably more likely to lean
towards a conservative position on the question of whether
a duty of care comes into being.

Recently enacted State
and Territory civil liability reform legislation

is probably some reduced likelihood that the question of
a duty of care in this area will come again before the
High Court. Some of the legislation enacted by the States
and Territories to reform the law on civil liability in
light of the Ipp Report into the Law of Negligence in Australia
includes provision that a person is not owed a duty of
care merely because the person is intoxicated. Further,
the fact that a person is or may be intoxicated does not
of itself increase or otherwise affect the standard of
care owed to the person. (Section 49 of the Civil Liability
Act 2002 (NSW) is the prime example.) This legislation
would generally only apply to conduct occurring after the
date of the legislation's commencement of operation,
which across the different States and Territories, have
been dates only within the last 2 years or so.

Text of the
decision is available at: <>.

Sykes assists AGS lawyers on a range of litigation practice
and compliance issues, such as conflicts of interest,
as well as helping to keep them informed of developments
in the law.

High Court decisions in brief

Jenny Burnett

Jenny Burnett Senior General Counsel
T 02 6253 7012
F 02 6253 7303

David Bennett

David Bennett Deputy Government Solicitor
T 02 6253 7063 F 02 6253 7303

Constitutional cases

North Australian Aboriginal Legal
Aid Service Inc v Bradley & Northern
[2004] HCA 31, (2004) 206 ALR 315, 17 June 2004

In rejecting
a challenge to the appointment of the Chief Magistrate
of the Northern Territory, the High Court considered
issues of judicial independence in the context of remuneration
arrangements. The Chief Magistrate had been appointed until
age 65 but with remuneration initially fixed only for a
period of two years. The High Court held that the courts
of the NT, like other courts capable of exercising the
judicial power of the Commonwealth, must be and appear
to be independent and impartial and, in particular, free
of government influence. However, the Court considered
that the fixing of the Chief Magistrate's remuneration
for a specified period, with the executive government then
legislatively required to refix remuneration at the end
of the period, did not render the magistracy or the office
of Chief Magistrate dependent on the legislature or executive
of the NT in a way incompatible with the requirements of
independence and impartiality. The Court considered that,
to the contrary, preservation of adequate remuneration
by periodic review is apt to defend the interests of judicial
independence and impartiality.

for Immigration and Multicultural and Indigenous Affairs
v B
[2004] HCA 20; (2004) 206 ALR 130, 29 April 2004

The High
Court held that the Family Court did not have jurisdiction
to release children from immigration detention
or make orders for their welfare in detention. The jurisdiction
of the Family Court to make orders relating to the welfare
of children is conferred by the provisions of Part VII
of the Family Law Act 1975 (Cth) dealing with children.
The Court held that the operation of Part VII is confined
by certain sections which apply the Part by reference to
heads of Commonwealth legislative power. In the case of
a child of a marriage (as in this case), the application
provisions ensured that Part VII was supported by the marriage
power in s 51(xxi) of the Constitution by confining its
operation to the parental responsibilities of the parties
to a marriage for a child of the marriage. The Court held
that orders for release from immigration detention or for
welfare in detention involved the responsibilities of the
Minister for Immigration and Multicultural and Indigenous
Affairs and not parental responsibilities.

City Council v Telstra Corporation Limited
[2004] HCA 19; (2004) 206 ALR 1, 28 April 2004

The High
Court upheld the validity and effective operation of a
provision in the Telecommunications Act 1997 (Cth)
exempting telecommunications carriers from discriminatory
State laws – here laws imposing local council charges
on their networks of cables. The Telecommunications Act
provided that a State or Territory law had no effect to
the extent that it discriminated against a carrier or carriers.
The Court held that this provision applied to the activities
of carriers in their capacity as carriers and was supported
by s 51(v) of the Constitution (the posts and telegraphs
power). It held that s 51(v) empowers the Commonwealth
to confer immunity from State laws on telecommunications
carriers, whether owned by the Commonwealth or not, and
could extend to conferring a limited immunity such as an
immunity from discriminatory State laws. The Court rejected
an argument that the Commonwealth law had the effect of
dictating to the States the way in which they should draft
their taxation laws and was therefore contrary to the Melbourne
Corporation doctrine (an implied constitutional limit that
prevents the Commonwealth from imposing a significant burden
on a State's capacity to function as a government).
The Court decided that the State laws authorising the imposition
of the local council charges did discriminate against telecommunications
carriers because the charges were not generally imposed
on other persons (e.g., electricity and water providers)
in respect of similar use of public land. Those laws were
therefore invalid to that extent by virtue of s 109 of
the Constitution (which provides that a Commonwealth law
prevails over a State law to the extent of any inconsistency
between them).

v Director of Public Prosecutions (WA)
[2004] HCA 9; (2004) 205 ALR 43, 3 March 2004

The High Court
upheld the validity of challenged provisions of the Crimes
(Confiscation of Profits) Act 1988 (WA) which
operated on a 'deemed conviction'. The Act
gave the WA Supreme Court power to order forfeiture of
property or payment of a pecuniary penalty where a person
had been 'convicted of a serious offence'.
However, a person was deemed to have been convicted of
a serious offence for the purposes of the Act where he
or she had been charged with such an offence but had died
before trial. The validity of the Act was challenged on
the basis that, contrary to Chapter III of the Australian
Constitution, it conferred on the Supreme Court powers
which were incompatible with the Court's role as
a repository for the exercise of the judicial power of
the Commonwealth (thus infringing the principle in Kable
v DPP (NSW) (1996) 189 CLR 510), principally because the
court was required to proceed on the basis of a deemed
conviction. The High Court held that the Court could not
make a forfeiture order unless satisfied beyond reasonable
doubt that the person had committed the offence and the
forfeiture order provisions were therefore valid. It also
held that, even if a pecuniary penalty order could be made
without determination of whether the offence had been committed,
the pecuniary penalty provisions were valid. The deemed
conviction was not a legislative determination of criminal
guilt; it simply enlivened the provisions of the WA Act
requiring the Court to determine whether a person had derived
benefits from the commission of a serious offence and should
pay a pecuniary penalty.

v The Queen
[2004] HCA 8; (2004) 204 ALR 455, 12 February 2004

case considered the operation of the Commonwealth law that
picks up and applies State and Territory criminal
procedure laws in trials of Commonwealth offences. The
NT Supreme Court had sentenced the appellant on conviction
for six indictable Commonwealth offences. The Supreme Court
imposed an aggregate sentence of four years' imprisonment
relying on the aggregate sentencing power in the Sentencing
Act (NT). The NT power was available for sentencing for
Commonwealth offences only if it was picked up and applied
as Commonwealth law by s 68(1) of the Judiciary Act
1903 (Cth). The High Court held that it was. Section 68(1) applies
the criminal procedure laws of a State or Territory to
trials of Commonwealth offences in that State or Territory
unless those laws are inconsistent with Commonwealth laws
or the Constitution. The Court held that the NT aggregate
sentencing power was not inconsistent with the limited
aggregate sentencing power for summary offences in the
Crimes Act 1914 (Cth) or with the general sentencing provisions
in Part 1B of the Crimes Act. It also held that s 68(1),
in applying State and Territory laws which did not operate
uniformly in respect of all Commonwealth defendants, was
not inconsistent with the Constitution. There is no general
constitutional implication that Commonwealth laws must
operate uniformly throughout the Commonwealth and it is
constitutionally permissible for a Commonwealth law to
assimilate the position of a defendant to a Commonwealth
prosecution with the position of all other defendants tried
in the same State or Territory.

Australia Pty Ltd v Minister Assisting the Minister for
Natural Resources
[2004] HCA 4; (2004) 204 ALR 46, 10 February 2004

The High
Court upheld the effectiveness of a Commonwealth provision
in the form commonly used in Commonwealth legislation
to effect the transfer of assets and liabilities on the
privatisation of a Commonwealth operation – that
is, a provision the effect of which is that specified assets
owned by the Commonwealth vest in a specified company without
the need for conveyance, transfer or assignment. This case
involved a permissive occupancy granted under State law
and held by the Commonwealth over a parcel of State Crown
land in NSW. The Commonwealth Minister for Finance and
Administration made a declaration under s 9(1) of the National
Transmission Network Sale Act 1998 (Cth) purporting to
transfer specified assets held by the Commonwealth (including
the permissive occupancy) to the predecessor of the appellant.
The Court rejected the respondent's argument that,
because at State law the permissive occupancy was revoked
if the holder attempted to transfer it without consent,
the s 9 declaration could not operate to transfer the permissive
occupancy. The Court said that, to the extent that State
law purported to prevent the Commonwealth law from taking
effect and to insulate the permissive occupancy from transfer
by the Commonwealth law, it was inconsistent with the Commonwealth
law and invalid to that extent by virtue of s 109 of the
Constitution (which provides that a Commonwealth law prevails
over a State law to the extent of any inconsistency between

v Commonwealth
[2003] HCA 73; (2003) 203 ALR 189, 10 December 2003

High Court decided that, in an action for damages against
the Commonwealth for negligent acts or omissions in international
waters, the law limiting time for the commencement of actions
that is in force in the State or Territory in which the
action is commenced applies. The Court's decision
was made in the context of an action brought in the ACT
Supreme Court by a former crew member of HMAS Melbourne for alleged injuries arising from the collision in 1964
between HMAS Melbourne and HMAS Voyager. As the Commonwealth
was a party to the action, the Supreme Court was exercising
federal jurisdiction and s 80 of the Judiciary Act 1903 (Cth) directed the Court to apply the common law of Australia
as modified by the statute law in force in the State or
Territory in which the jurisdiction was exercised. The
Court considered that there was no common law choice of
law rule applicable to the present circumstances; rather,
the statute law in force in the ACT, in particular the
Limitation Act 1985 (ACT), applied to the action by force
of s 80 of the Judiciary Act.

(WA) v Marquet
[2003] HCA 67; (2003) 202 ALR 233, 13 November 2003

case involved the binding effect of 'manner
and form' requirements for the enactment of State
laws. A manner and form requirement is a provision in a
State law which purports to require a future parliament
to make a law only in a particular manner or form. Section
6 of the Australia Act 1986 (Cth) provides that a law 'respecting
the constitution, powers or procedure of the Parliament
of the State shall be of no force or effect' unless
it is made in the manner and form required by State law.
In this case, the High Court held that two WA electoral
distribution Bills passed by the WA Parliament could not
lawfully be presented for royal assent because they were
not passed in compliance with the manner and form requirement
in the Electoral Distribution Act 1947 (WA) (i.e., by absolute
majorities in both Houses of Parliament). The requirement
was binding by virtue of s 6 of the Australia Act.

Pty Ltd v Chief Commissioner of State Revenue
[2003] HCA 65; (2003) 202 ALR 376, 12 November 2003

South Sydney City Council v Paliflex Pty Ltd
[2003] HCA 66; (2003) 202 ALR 396, 12 November 2003

In these
cases the High Court upheld the application of State
laws to land which had previously been owned by the
Commonwealth. The Commonwealth Parliament has exclusive
legislative power in respect of places acquired by the
Commonwealth for public purposes (s 52(i) of the Constitution).
In a series of cases in 1970 and 1971, the High Court decided
that State law has no force in Commonwealth places. As
a consequence, the Commonwealth Parliament enacted the
Commonwealth Places (Application of Laws) Act 1970 which
generally applies the provisions of State laws to Commonwealth
places while they remain Commonwealth places. In the present
cases, the High Court held that NSW land tax and local
government rates were payable by a company from the time
of its acquisition from the Commonwealth of land which
had been owned by the Commonwealth when the NSW laws were
enacted. The consequence of the High Court's judgment
appears to be that, generally, State laws will apply according
to their terms in a Commonwealth place once the place is
no longer owned by the Commonwealth.


Purvis obo Hoggan v NSW & HREOC
[2003] HCA 62; (2003) 202 ALR 133, 11 November 2003

High Court decided that a child with a disability was
not entitled to compensation under the Disability
Act 1992 for his suspension and expulsion from a mainstream
high school as a result of his violent behaviour. The school
would have been liable to pay compensation if it had treated
the child less favourably than, in circumstances the same
or not materially different, it would have treated a person
without the disability, and if the less favourable treatment
was because of the disability. The Court held that the
treatment of the child was to be compared with treatment
of a child without a disability who exhibits the same behaviour.
Thus the child had not been treated less favourably than
a child without a disability. This construction of the
Act meant that the school was not placed in a position
where it could not insist on compliance with the criminal

v The Queen
[2004] HCA 10; (2004) 205 ALR 72, 4 March 2004

The High
Court upheld the appellant's conviction
in the Victorian Supreme Court for murder and kidnapping,
deciding that the 'speciality' provision in
s 42 of the Extradition Act 1988 (Cth) had not been infringed.
The appellant had been extradited to Australia by the United
Kingdom for four conspiracy offences, including conspiracy
to murder and conspiracy to kidnap, but not for murder
and kidnapping. Section 42(1)(a)(i) of the Extradition
Act provides that a person is not to be tried in Australia
for any offence allegedly committed before surrender to
Australia other than an offence for which the person was
surrendered or any other offence of which the person could
be convicted on proof of the conduct constituting the first
offence. Gleeson CJ, McHugh, Hayne and Heydon JJ held that
the conduct alleged for the conspiracy offences also constituted
the murder and kidnapping offences and that the appellant
had been validly convicted as s 42 was not infringed. Gummow,
Hayne and Callinan JJ held that s 42 did not operate to
deny jurisdiction of courts but could be raised by a defendant
as a special plea to the arraignment. That had not occurred
at the appellant's trial. Therefore, the Court did
not need to decide the validity of a Commonwealth law which
ousted the general criminal jurisdiction of State courts
(although Kirby J, in dissent on the operation of s 42,
upheld its validity as a law directing when trials of extradited
persons could, and could not, occur).

Burnett is a Senior General Counsel who has expertise
in constitutional law and litigation, jurisdiction of
courts and statutory interpretation.

David Bennett heads the AGS constitutional litigation practice. He
has advised the Australian Government
on constitutional
law issues for more than 20 years.

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