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High Court judgments

Every Issue

Cite as: Jan/Feb 2011 85(1/2) LIJ, p.56

High Court judgments
Constitutional law
Bill of Rights – power of executive to bind Parliament

In Port of Portland Pty Ltd v Victoria [2010] HCA 44 (8 December 2010) a term in the contract for the sale of a port in Victoria to private interests obliged the state to effect specific amendments to Acts imposing land tax so that land tax was assessed on the assets on a certain basis. The High Court concluded the term was not void and contrary to the Bill of Rights as purporting to be an executive act purporting to bind the Parliament: French CJ, Hayne, Heydon, Crennan, Kiefel, Bell JJ. Appeal allowed.

Constitutional law
Judicial power – validity of state Act requiring state court to make “control orders” prohibiting persons from associating

In South Australia v Totani [2010] HCA 39 (11 November 2010) s10 of the Serious and Organised Crime (Control) Act 2008 (SA) (the Act) authorised the SA Attorney-General to declare that an organisation was involved in serious criminal activity. By s14 the Act required the Magistrates Court of SA, on the application of the Commissioner of Police, to make a “control order” in respect of members of such a declared organisation. A control order prohibited the persons from associating. In May 2009 the Attorney-General declared the Finks Motorcycle Club to be a declared organisation. In May 2009 the Magistrates Court of SA made a control order against H who was a member of the club. H and another member T commenced proceedings challenging the Act and the order. In September 2009 the Full Court of the SA Supreme Court answered questions referred to it by finding s14 of the Act invalid and declaring the control order void. The High Court dismissed the appeal by SA by majority: French CJ, Hayne, Gummow, Crennan with Bell, Kiefel JJ; contra Heydon J. The majority concluded the element of direction given to the Court that required it to make an order meant the legislation exceeded the legislative power of the state by reference to the principles identified in Kable v DPP (NSW) [1996] HCA 24. Appeal dismissed.

Criminal law
Sentencing – consistency in sentencing for federal offences

In Hili v Q; Jones v Q [2010] HCA 45 (8 December 2010) the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ jointly; Heydon J sim) sentences of imprisonment imposed on the appellants in the NSW District Court for offences concerning income tax evasion were increased on a prosecution appeal by the NSW Court of Criminal Appeal. The High Court in a joint judgment concluded there was no “norm” or starting point expressed as a percentage for the period of imprisonment a federal offender should serve before release on a recognisance order. It also concluded the reasons of the Court of Criminal Appeal were sufficient. Appeals dismissed.

Income tax
Deductions – income from youth allowance – requirement of allowance that person study – whether cost of educational necessities a deduction

In Commissioner of Taxation v Anstis [2010] HCA 40 (11 November 2010) Ms A received a youth allowance under Part 2.11 of the Social Security Act 1991 (Cth). The High Court concluded that it was assessable income for the Income Tax Assessment Act 1997 (Cth) and that the educational expenses she incurred to retain the benefit were deductible: French CJ, Gummow, Kiefel, Bell JJ; sim Heydon. Appeal by the Commissioner dismissed.

Natural justice to persons detained in excised place

In Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 (11 November 2010) the two plaintiffs were non-citizens who arrived in Australian waters by boat and without a visa and were detained under s189 of the Migration Act 1958 (Cth) (the Act) on the territory of Christmas Island. This was an “excised offshore place” for that Act. By s46A the Act provided the plaintiffs were not able to make a claim for protection visas as refugees from such a place unless the Minister for Immigration personally decided under s46A(2) to allow an application in the public interest or personally decided under s195A to grant a visa without an application.

The request by each plaintiff for a refugee visa under these provisions was considered and rejected by officers of the Department of Immigration and these decisions were affirmed by contractors engaged by the department.

The plaintiffs commenced proceedings in the original jurisdiction of the High Court, asserting s46A was invalid and that they had been denied procedural fairness in the making of the decisions because, inter alia, the decision makers accepted that they were not bound to apply the Act nor were they subject to decisions of Australian courts on the Refugees Convention. The plaintiffs asserted they were detained while inquiries were made under the Act as to their status. The Minister asserted they were detained while inquiries without a statutory basis were made that may, or may not, lead to decisions under the Act.

In a joint judgment the High Court concluded that because the decision process was engaged in to determine if the Minister would exercise the powers under ss46A or 195A, the steps were taken under and for the Act. Because the inquiries prolonged the detention of the plaintiffs at the behest of the Australian executive, those who made the inquiries were bound to act fairly and according to law. The inquiries were not made fairly and according to law and declarations to this effect would be made: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The Court concluded s46A was valid. It considered that the “Carltona principle” and the question of whether the contractors were “officers of the Commonwealth” for s75(v) of the Constitution did not arise as a declaration would be sufficient remedy. The Court also concluded that while the Minister was not required to consider the exercise of any power and therefore mandamus would not issue, and certiorari had no practical utility, a declaration would suffice. The High Court made a declaration that in recommending to the Minister that the plaintiffs were not persons to whom Australia owed obligations as refugees, the reviewing persons erred in law by not accepting the provisions of the Act and decisions of the Australian courts as binding and failed to observe the requirements of procedural fairness.

Interest of partners in partnership property

In Commissioner of State Taxation (SA) v Cyril Henschke Pty Ltd [2010] HCA 43 (1 December 2010) the High Court considered the nature of the interest each partner has in partnership property. The Court concluded that a deed whereby a partner retired for consideration was a “conveyance on sale” of an interest in the partnership property for the purposes of the Stamp Duties Act 1923 (SA). Conclusion of SA Court of Appeal reversed: French CJ, Hayne, Heydon, Kiefel JJ. Appeal allowed.

Charities – whether body trying to influence government policy a charity

In Aid/Watch Inc v C of T [2010] HCA 42 (1 December 2010) the High Court concluded that an entity can have tax-exempt status as a “charity” notwithstanding that one of its objectives is to influence government policy. Appeal by appellant (which inter alia campaigned for effective Australian foreign aid to relieve poverty) allowed: French CJ with Gummow, Hayne, Crennan, Bell JJ jointly; contra Heydon J, Kiefel J.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at


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