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High Court judgments

High Court judgments

By Andrew Yuile

Courts Judgment 

Constitutional law Implied freedom of political communication In Unions NSW v State of New South Wales [2019] HCA 1 (29 January 2019) the High Court found that the Electoral Funding Act 2018 (NSW) (EF Act) impermissibly burdens the freedom of political communication implied into the Commonwealth Constitution. In Unions NSW v New South Wales (No 1) (2013) 252 CLR 530 and McCloy v New South Wales (2015) 257 CLR 178, the High Court considered the implied freedom and provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (EFED Act). The EF Act replaced the EFED Act, but generally retained the earlier scheme, which capped political donations and electoral expenditure. The Court was asked in this case to consider two aspects of the EF Act. First, s29(10) of the EF Act reduced the amount that third-party campaigners were permitted to spend on electoral campaigning from $1,050,000 to $500,000, less than half the amount applicable to certain political parties. Second, s35 of the EF Act prohibited third-party campaigners from acting in concert with others to incur expenditure above the relevant cap. It was accepted that both provisions in dispute burdened the implied political freedom (the first question in assessing validity against the implied freedom). NSW argued that the purpose of the EF Act was to prevent the drowning out of voices in the political process by the distorting influence of money, which was a purpose compatible with maintenance of the constitutionally prescribed system of representative and responsible government (the second implied freedom question). A majority of the Court was prepared to assume the correctness of this proposition to focus on the third question for validity and held that the s29(10) cap had not been demonstrated to be reasonably necessary for the identified purpose. It was therefore invalid. The majority held that it was not necessary to answer the question about s35 in those circumstances. Kiefel CJ, Bell and Keane JJ jointly; Gageler J, Nettle J and Gordon J each separately concurring; Edelman J separately concurring as to s29(10) but also finding s35 invalid. Answers to Questions Stated given. Constitutional law Inconsistency of laws In Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 (6 February 2019) the High Court considered whether provisions of the Work Health and Safety (National Uniform Legislation) Act (NT) (NT Act) were inconsistent with Commonwealth civil aviation laws and invalid to that extent. The respondent operated a business in Alice Springs providing hot air balloon rides. In July 2013 there was an incident as a passenger was boarding the balloon basket which resulted in her death. The appellant filed a complaint against the respondent alleging breach of the NT Act for failing to ensure that the health and safety of persons was not put at risk from work carried out as part of the conduct of its business. The complaint was dismissed by the NT Court of Summary Jurisdiction on the basis that the subject matter of the complaint was within a field covered by the Commonwealth aviation regulatory scheme. On an application for certiorari, a single judge of the NT Supreme Court quashed the decision. The Court of Appeal allowed an appeal, holding that the Commonwealth aviation law was a complete statement of the relevant law and the NT law was indirectly inconsistent with it. By majority, the High Court allowed an appeal from that decision. The majority stated that the Commonwealth laws did not lay down a legislative framework covering all aspects of the safety of persons who might be affected by operations associated with aircraft, including on-ground operations. In some instances, the Commonwealth laws operate within the setting of other laws. The NT Act was such a law. The Commonwealth laws did not contain an “implicit negative proposition that it is to be the only law with respect to the safety of persons who might be affected by operations associated with aircraft, including the embarkation of passengers”. Kiefel CJ, Bell, Keane, Nettle and Gordon JJ jointly; Gageler J separately concurring; Edelman J dissenting. Appeal from the Court of Appeal of the Supreme Court (NT) allowed. Migration Procedural fairness – s438 notifications In Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 (13 February 2019) the High Court considered the implications of procedural fairness where material was withheld from Administrative Appeal Tribunal (AAT) review applicants. In each case, individuals applied for protection visas that were refused. Each visa applicant sought review by the AAT. Under s418 of the Migration Act 1958 (Cth), the Secretary of the Department gave to the AAT documents relevant to the review. The Secretary notified the AAT that s438 applied to certain documents. Section 438 applies where it would be contrary to the public interest to reveal the documents, or the documents were given to the Department in confidence. Where s438 applies, the AAT can have regard to the information and can also disclose some or all of it to the review applicant. In these cases, the review applicants had not been told of the existence of the s438 notification. In each case the notification was invalid to at least some extent. The review applicants sought judicial review arguing that they were denied procedural fairness. The High Court unanimously held that procedural fairness requires the disclosure to the review applicant of the fact of a s438 certificate. The failure to disclose the certificates to the review applicants was therefore a breach of procedural fairness. Similarly, an invalid notification on the part of the Department was also a breach. However, to be a jurisdictional error, the breach had to give rise to “practical injustice”. The majority held that materiality, whether of a breach of procedural fairness or otherwise, is essential to the existence of jurisdictional error. Materiality is an ordinary question of fact for which the applicant bears the onus of proof. The majority held that a breach will be material only if compliance could realistically have resulted in, or if there was a realistic possibility of, a different decision. In each case, the majority held that materiality had not been made out. Bell, Gageler and Keane JJ jointly; Nettle and Gordon JJ jointly dissenting. Appeal from the Federal Court in SZMTA allowed; appeals from the Full Federal Court in CQZ15 and BEG15 dismissed. Constitutional law Territories – inconsistency of territory law In Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4 (13 February 2019), the High Court considered the extent to which the Residential Tenancies Act 1997 (ACT) (RTA) was capable of operating in the Jervis Bay Territory (JBT) concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) (Land Grant Act). The Wreck Bay Aboriginal Community Council (Council) has power under the Land Grant Act to grant leases over “Aboriginal Land” in the JBT. Section 46 of the Land Grant Act also says that it does not affect the application to Aboriginal Law of a law in force in the JBT to the extent that that law is capable of operating concurrently. The RTA operates to require that all residential leases in the ACT (and the JBT, as ACT laws apply generally in the JBT) contain a set of standard terms. One of the standard terms requires that premises be maintained in a reasonable state of repair. The RTA also renders void terms of leases inconsistent with the standard terms. A dispute arose between the appellant and the Council as to whether the Council was obliged to maintain premises in a reasonable state of repair. The Council argued that such an obligation would impair the operation of the Land Grant Act. The appellant argued that the RTA terms could be complied with alongside the Land Grant Act. At first instance, the ACT Supreme Court agreed with the appellant’s position; the Court of Appeal allowed an appeal. In the High Court, a majority of the Court held that the provisions of the Land Grant Act, considered as a whole, did not provide (implicitly) that the terms and conditions of leases granted under that Act are to be the only terms and conditions applicable to those leases. The provisions of the Land Grant Act did not purport to provide a complete statement of the law governing the rights and obligations under leases, to the exclusion of generally applicable laws. The majority held that the RTA does not apply to Aboriginal Land in the JBT only to the extent that the RTA prohibits subletting. Kiefel CJ, Keane, Nettle and Gordon JJ; Bell J and Edelman J each separately concurring; Gageler J dissenting. Appeal from the Supreme Court (ACT) allowed. Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email The full version of these judgments can be found at

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