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Federal court judgments

Every Issue

Cite as: March 2015 89 (3) LIJ, p.59

Administrative law

Standing – person aggrieved – neighbouring shops to one seeking approval to issue pharmaceuticals – “community without access to pharmaceutical benefits” – “public interest”

In Kong v Minister for Health [2014] FCAFC 149 (20 November 2014) all members of a Full Court concluded neighbouring shopkeepers with the right to dispense pharmaceutical benefits did not hold a “pole position” with a right to be heard before the Minister made a decision under s90A(2) of the National Health Act 1953 (Cth) to approve a neighbouring shop as one that could also dispense pharmaceutical benefits. The Court also concluded the primary judge did not err in the meaning given to the phrases “a community being left without reasonable access to pharmaceutical benefits” and “public interest” in s90A(2) of the Act.

Administrative law

Finance – “act of grace” payment

In Quinntano v Minister for Finance and Deregulation [2014] FCAFC 159 (25 November 2014) Q was seriously wounded in a fight in a nightclub and recovered damages against the owner corporation that was insolvent as were its insurers. Q requested an act of grace payment from the Minister under the Financial Management and Accountability Act 1997 (Cth) on the basis APRA had failed to ensure the insurers were solvent. A Full Court concluded the decision of the Minster to refuse to make the payment was not unlawful or unreasonable.


Release – exempt archives – damage to the Commonwealth – events in Timor in 1975

In National Archives of Australia v Fernandes [2014] FCAFC 158 (17 November 2014) a Full Court considered how documents in the national archive are to be assessed to determine whether part of the archive could be made available under ss38 and 44(7) of the Archives Act 1983 (Cth) in a form that did not disclose matter that made that part of the archive exempt under s33(1)(a) as damaging international relations of Australia.

Constitutional law

Water Act 2007 (Cth) valid

In Lee v Commonwealth of Australia [2014] FCAFC 174 (18 December 2014) a Full Court jointly concluded the primary judge did not err in holding, in an action brought by irrigators in SA and Victoria, the Water Act 2007 (Cth) to be valid law. The Full Court considered the law was not invalid by reference to Constitution s92 (Freedom of interstate trade), s99 (Commonwealth not to give preference), s100 (Commonwealth not to abridge the right to use water), s101 (Inter-State Commission) and s102 (Parliament may forbid preference by state) and the Melbourne Corporation Case. The Court rejected challenges to the Murray-Darling Basin Authority and the policy of regulating water use it implemented. Appeal dismissed.

Constitutional law

Whether s44 of SRC Act unconstitutional

In Clement v Comcare [2014] FCAFC 164 (28 November 2014) a Full Court concluded s44 of the SRC Act was not unconstitutional and the cessation of weekly payments was not acquisition of property on other than just terms under Constitution s51(xxxi).

Constitutional law

Industrial law – whether firefighting authority in Victoria a trading corporation – whether viability of state entities affected

In United Firefighters’ Union of Australia v Country Fire Authority [2014] FCAFC 1 (8 January 2015) a Full Court decided that, having regard to its activities (such as charges for attending fires and fire insurance), the Country Fire Authority of Victoria was a “trading corporation” within Constitution Act 51(xx) at the time a disputed award was made in October 2010 and that the jurisdiction to make this award came from the Fair Work Act 2009 (Cth) and was not affected by the need to protect state government entities recognised in Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

Constitutional law

Police superannuation scheme – viability of state entities

In Albrecht v Commissioner of Taxation [2014] FCAFC 176 (19 December 2014) a Full Court allowed in part appeals by very senior WA police officers who contended the tax imposed on their superannuation schemes in legislation such as the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) offended the need to protect state government entities recognised in Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

Corporations law

Benefit in connection with retirement from office

In Renshaw v Queensland Mining Corporation Limited [2014] FCAFC 172 (26 November 2014) a Full Court considered when a payment to a retiring director was made contrary to s200B of the Corporations Act 2001 (Cth).


Discrimination in merchant marine

In Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 (22 December 2014) a Full Court found the employer’s code for dealing with workplace harassment and discrimination was incorporated in the contract of employment and had been departed from. It rejected an argument that a seafarer claiming common law damages for harassment or discrimination in the maritime workplace must file an election under s54(1) of the Seafarer’s Rehabilitation and Compensation Act 1992 (Cth).


Delay – natural justice

In Snedden v Minster for Justice for the Commonwealth of Australia [2014] FCAFC 156 (12 December 2014) a Full Court considered the primary judge had not erred in finding the decision to order S be extradited was not attended by sufficient delay to affect its legality. The Minister succeeded in a cross appeal contending the primary judge had erred in accepting there had been a denial of natural justice in failing to inform S of all the contents of the departmental submission.

Income tax

Fringe benefits – car parking

In Commissioner of Taxation v Qantas Airways Limited [2014] FCAFC 156 (12 December 2014) a Full Court considered whether fringe benefits tax was payable for car park benefits provided at a public parking station rather than on the employer’s own premises.


Visas – compliance with conditions of previous visas – substantial compliance

In Montero v Minister for Immigration and Border Protection [2014] FCAFC 170 (12 December 2014) a Full Court concluded cl 3004(e)(ii) (which required an applicant for a visa to have complied substantially with the conditions of previous visas where M had exceeded the number of hours a week that M could work) did not allow substantial compliance with all of the conditions overall but required compliance with all of them. As Justice Flick observed at [19]: “Except to those who immerse themselves within the mysteries of the Migration Regulations the detail of those provisions remains impenetrable”.


Natural justice

In Minister for Immigation and Border Protection v Dhillon [2014] FCAFC 157 (21 November 2014) a Full Court concluded the right to a hearing provided by s360 of the Migration Act 1958 (Cth) was subject to the other provisions of the Act and that the failure of the Department or the MRT to give the respondent redacted material adverse to him was authorised by s362A and did not affect the validity of the “hearing” he was given. Minster’s appeal allowed.


Visa criterion – sch 3 cl 3005

In Sapkota v Minister for Immigation and Border Protection [2014] FCAFC 160 (1 December 2014) a Full Court concluded the reference to the visa applicant satisfying the criterion in Sch 3 cl 3005 of the regulations did not accept satisfaction of a Sch 3 criterion picked up via a Sch 2 criterion. Because the decision of a Full Court in MIC v Kaur [2013] FCAFC 66 was raised the court consisted of five justices.


Patentable invention

In Regency Media Pty Ltd v MPEG LA, LLC [2014] FCAFC 183 (22 December 2014) a Full Court considered the meaning of the phrase “patented invention” in s145 of Patents Act 1990 (Cth).

Seafarers’ compensation

Intra-state activities

In Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 (22 December 2014) a Full Court rejected a submission that s19 of the Seafarer’s Rehabilitation and Compensation Act 1992 (Cth) did not authorise compensation to a dredge hand injured constructing a wharf in the Pilbara because he was involved in intrastate activities only.


International taxation – pensions of retirees from international agencies

In Commissioner of Taxation v Macoun [2014] FCAFC 162 (4 December 2014) a Full Court concluded the AAT had erred in concluding the pension the taxpayer received was exempt from tax by reason of interpretation of the International Organisations (Privileges and Immunities ) Act 1963 (Cth) and by reference to the regulations under it.

Trade practices

Notices requiring production of information of breaches of the Competition and Consumer Act – cartel collusion in tendering for NSW coal licences

In Obeid v ACCC [2014] FCAFC 155 (20 November 2014) a Full Court concluded that the term “in trade or commerce” in the definition of “services” in s4(1) of the Competition and Consumer Act (Cth) was not limited to market activities and included the process of applying to a state minister for mining approval. The Court found that notices issued by the ACCC under s155 of that Act seeking information about collusion by a cartel in tendering to the relevant state minister for NSW coal licences were valid.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at Numbers in square brackets refer to the paragraph number in the judgment.


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