mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Mutual Provident Society v Goulden [1986] HCA 24 ; (1986) 160 CLR 330
Outcome: cited
The present case is the polar opposite of the kind of situation dealt with in Australian Mutual Provident Society v Goulden [1986] HCA 24 ; (1986) 160 CLR 330, discussed in APLA at [42]-[43]. In Goulden the High Court held that the Life Insurance Act 1945 (Cth) made detailed provision for supervising and regulating the statutory funds of life insurers, including the classification of risks and the setting of premiums. It would "alter, impair or detract from" the Commonwealth scheme if a registered life company were prevented by State anti-discrimination legislation from classifying different risks differently or for setting different premiums for different risks. In the present case, there is no intention manifested by the Air Force Act or the Regulations to create a scheme to deal exclusively within the AAFC with discriminatory conduct involving cadets. As was submitted by the second respondent, the Manual , far from being a comprehensive code, is predicated on the continuing operation and availability of State legal regimes as part of a bed of underlying law.
Case: Dao v Australian Postal Commission [1987] HCA 13 ; (1987) 162 CLR 317
Outcome: distinguished
The applicants relied on Dao v Australian Postal Commission [1987] HCA 13 ; (1987) 162 CLR 317. Section 42(1) of the Postal Services Act 1975 (Cth) gave the Commission power to appoint persons as officers for the purposes of the Act. Section 42(2) provided that a person should not be appointed unless the Commission was satisfied, after the person had undergone a medical examination required by the Commission, as to his health and physical fitness and that he possessed such educational qualifications, or met such other requirements (if any) as were required by the Commission. The Commission dismissed Ms Dao and the other appellant from temporary employment, and refused them permanent employment, because in their medical examinations they failed to attain a specified minimum body weight determined by reference to their height and sex according to a scale prepared and used by the Commonwealth Department of Health. The Commission determined on this basis that they did not possess the standard of physical fitness required. The appellants complained before the New South Wales Equal Opportunity Tribunal that they had been discriminated against on the ground of their sex, contrary to s 25(1) of the Anti-Discrimination Act 1977 (NSW). The High Court held that the ss 25 and 113 of the State Act (which empowered the Tribunal to award damages and reinstatement) would result in "a clear usurpation ... of the responsibility resting on the Commission under the Commonwealth Act" and were "clearly in collision with s 42 ... and must therefore, by force of s 109 of the Constitution , give way." (at 335). Their Honours cited the statement of Mason J in Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 260: "If, according to the true construction of the Commonwealth law, the right is absolute, then inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of New South Wales Pty. Ltd. v. New South Wales [1965] HCA 3 ; (1965) 113 CLR 54, where the permission for which Commonwealth law provided was neither absolute nor comprehensive. (at p260)."
Case: Airlines of New South Wales Pty. Ltd. v. New South Wales [1965] HCA 3 ; (1965) 113 CLR 54
Outcome: cited
The applicants relied on Dao v Australian Postal Commission [1987] HCA 13 ; (1987) 162 CLR 317. Section 42(1) of the Postal Services Act 1975 (Cth) gave the Commission power to appoint persons as officers for the purposes of the Act. Section 42(2) provided that a person should not be appointed unless the Commission was satisfied, after the person had undergone a medical examination required by the Commission, as to his health and physical fitness and that he possessed such educational qualifications, or met such other requirements (if any) as were required by the Commission. The Commission dismissed Ms Dao and the other appellant from temporary employment, and refused them permanent employment, because in their medical examinations they failed to attain a specified minimum body weight determined by reference to their height and sex according to a scale prepared and used by the Commonwealth Department of Health. The Commission determined on this basis that they did not possess the standard of physical fitness required. The appellants complained before the New South Wales Equal Opportunity Tribunal that they had been discriminated against on the ground of their sex, contrary to s 25(1) of the Anti-Discrimination Act 1977 (NSW). The High Court held that the ss 25 and 113 of the State Act (which empowered the Tribunal to award damages and reinstatement) would result in "a clear usurpation ... of the responsibility resting on the Commission under the Commonwealth Act" and were "clearly in collision with s 42 ... and must therefore, by force of s 109 of the Constitution , give way." (at 335). Their Honours cited the statement of Mason J in Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 260: "If, according to the true construction of the Commonwealth law, the right is absolute, then inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of New South Wales Pty. Ltd. v. New South Wales [1965] HCA 3 ; (1965) 113 CLR 54, where the permission for which Commonwealth law provided was neither absolute nor comprehensive. (at p260)."
Case: Re Australian Education Union [1994] HCA 26 ; (1995) 184 CLR 188
Outcome: cited
The applicants submitted that the Anti-Discrimination Act infringed the Commonwealth's right to determine the identity of persons employed by the Commonwealth, in the same way as, conversely, Commonwealth legislation cannot determine the number and identity and terms of employment of State employees, this being critical to the capacity of a State to function: Re Australian Education Union [1994] HCA 26 ; (1995) 184 CLR 188.
Case: Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Outcome: cited
The object of the Act, as set out in s 3 , is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by making available information and giving access to information about the operations of departments and public authorities, including the ABC. This right is limited by exceptions and exemptions necessary for the protection of essential public interests (s 3(1)(b) ; Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 per Lockhart J at 438). Any discretion conferred by the Act is to be exercised as far as possible so as to facilitate and promote the disclosure of information (s 3(2)). 4 Document is defined in s 4(1) and relevantly includes: '(a) any of, or any part of any of, the following things: (i) any paper or other material on which there is writing; ... (iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; (v) any article on which information has been stored or recorded, either mechanically or electronically; (vi) any other record of information; or (b) any copy, reproduction or duplicate of such a thing; or (c) any part of such a copy, reproduction or duplicate' "Program material" is not defined in the Act. 5 There is no dispute that the materials sought by UTS are "documents" within s 4(1) or that the words "program material" also describe documents within s 4(1). The documents sought are set out in Annexure 1 to these reasons. For the purposes of this appeal the parties have approached the documents as if they constitute a single category. No distinction is drawn by the parties between documents created before broadcasting and documents created after broadcasting. The documents concern complaints about specific ABC programs and the ABC's coverage of the Middle East and fall into two broad categories: &#8226; correspondence with complainants; and &#8226; internal files and correspondence, board minutes, investigation files and reports and documents in relation to the complaints.
Case: Fountain v Alexander [1982] HCA 16 ; (1982) 150 CLR 615
Outcome: cited
The ABC did not seek to argue that the documents sought are "program material" per se . Rather, the ABC's submissions support a construction of the expression that would include all documents that relate to program material, including documents created before or after the broadcast of the program and any correspondence about program material. The ABC's submissions are to the effect that the exemption is "in relation to documents in relation to its program material". The ABC then relies on the principle that "in relation to" is an expression of wide and general import ( Fountain v Alexander [1982] HCA 16 ; (1982) 150 CLR 615 at 629 per Mason J) and covers all of the documents sought, which are said to exist only because of and arise directly from, the broadcast of ABC program material. The ABC draws a distinction between documents related to its program material, which it says are exempt and documents related to its administrative function, which are outside the scope of the expression.
Case: Harris v Commissioner of Taxation [2002] FCAFC 226 ; (2002) 125 FCR 46
Outcome: cited
While in some contexts "in respect of" may have a wider meaning than "in relation to" ( Smith v Federal Commissioner of Taxation [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J; citing Nowegijick v R (1983) 144 DLR (3d) 193 at 200)), in the context of the Schedule "in respect of" has a narrower meaning. That is, "in respect of" is used in the sense of "with reference to" (the Macquarie Dictionary , 4 th ed, 2005 defines "with (or in) respect to" to mean ' in relation to or reference to ', while the Shorter Oxford Dictionary , 5 th ed, 2002 definition includes '[ r ] elation, connection, reference, regard '). A sufficient or material connection or relationship is required when "in respect of" is used, rather than a mere direct or indirect relationship when "in relation to" is used ( Harris v Commissioner of Taxation [2002] FCAFC 226 ; (2002) 125 FCR 46 at [68] [69]). A further restriction on the exemption is thereby introduced for those agencies other than the ABC and SBS.
Case: Nowegijick v R (1983) 144 DLR (3d) 193
Outcome: cited
While in some contexts "in respect of" may have a wider meaning than "in relation to" ( Smith v Federal Commissioner of Taxation [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J; citing Nowegijick v R (1983) 144 DLR (3d) 193 at 200)), in the context of the Schedule "in respect of" has a narrower meaning. That is, "in respect of" is used in the sense of "with reference to" (the Macquarie Dictionary , 4 th ed, 2005 defines "with (or in) respect to" to mean ' in relation to or reference to ', while the Shorter Oxford Dictionary , 5 th ed, 2002 definition includes '[ r ] elation, connection, reference, regard '). A sufficient or material connection or relationship is required when "in respect of" is used, rather than a mere direct or indirect relationship when "in relation to" is used ( Harris v Commissioner of Taxation [2002] FCAFC 226 ; (2002) 125 FCR 46 at [68] [69]). A further restriction on the exemption is thereby introduced for those agencies other than the ABC and SBS.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
UTS submits that "in relation to" in the context of the Schedule equates to "for" and that the exemption is only for documents which are ABC program material. UTS's submissions support a construction that limits the expression to apply only to the "sights and sounds" of a program: the tapes or recordings. UTS does not submit that the exemption extends only to documents that fall within that aspect of the definition of "document" in s 4(a) that refers to "material", that is s 4(a)(iv). Rather, UTS relies on an amalgamation of the definition of "program" in the Broadcasting Services Act 1992 (Cth) (which of course post-dates the Act) and the construction of the expression "Australian content of programs" by Brennan CJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [22] to submit that program material is limited to ' the sights and sounds which are capable of transmission to an audience for the purpose of education or informing or even for advertising or sponsorship '. A script for a program or instructions for the lighting for recording purposes are not, on this basis, included. UTS submits that all of the documents sought are about program material and, not being documents which are program material, do not fall within the exemption. UTS does not dispute the breadth of the expression "in relation to" but submits that, construed in context, the limited meaning of "program material" means that "in relation to" extends only to other versions of the program material itself, such as to edited tapes or recordings. 8 For agencies other than the Special Broadcasting Service Corporation ('SBS') and the ABC, the word "document" is repeated in the Schedule: ' in relation to documents ' in respect of certain activities. For the SBS and the ABC, the entry is ' in relation to its program material '. UTS contends that the class of exempt documents for the ABC and SBS is defined by reference to nature and content and not to an activity. Where the exemption is for documents in respect of an activity, as for other agencies in the Schedule, it extends to documents received or brought into existence in the course of, or for the purposes of, the carrying on of that activity (s 7(4)). By contrast, UTS submits that where the exemption is defined by reference to the nature and content of the particular documents, it should be read as an exemption "for" those particular documents. 9 Section 7(2) provides that the bodies specified in the Schedule are exempt ' in relation to the documents referred to in that [Schedule]'. It follows that the subject matter of the Schedule is documents that come within the definition in s 4(1). The Schedule then limits the documents by category. If there were simply categories of documents listed, such as "scripts for programs", the exemption would be in relation to scripts for programs.
Case: Rivera v Australian Broadcasting Corporation [2005] FCA 661 ; (2005) 144 FCR 334
Outcome: cited
The parties only referred to one case where the Schedule was discussed ( Rivera v Australian Broadcasting Corporation [2005] FCA 661 ; (2005) 144 FCR 334). While Rivera concerned the Privacy Act 1988 (Cth), it did refer to the Schedule. The observation of Hill J at [38], that the ABC is exempt under the Act ' in respect of "documents" in relation to its program material ', is consistent with these reasons.
Case: Secretary Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367
Outcome: cited
UTS points out that the entry in the Schedule for the ABC does not say "documents in respect of its program material". That is correct. Nor does it say "for its program material". The words ' in relation to ' are used. The width of that expression is determined by the context in which it appears and a relevant connection is required with the subject ( Secretary Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 383). 16 Putting together s 7(2) and the Schedule, for agencies other than the ABC and SBS, the exemption is: 'in relation to the documents' (s 7(2)) 'in relation to documents in respect of [the activity] (the Schedule) '. For the ABC and the SBS, the exemption is: 'in relation to the documents' (s 7(2)) 'in relation to its program material (the Schedule)' . 17 It may well be that the repetition of ' in relation to documents ' was unnecessary for the other agencies, as it was for the ABC. However, the repeated use of "in relation to" reinforces an intention to exempt not only the category of documents specified but also documents that relate to that category. Even if, as submitted by UTS, "in relation to" can mean "for", it is unlikely that it was intended to carry that restricted meaning both in s 7(2) and in the Schedule. It may be that, reading s 7(2) and the Schedule together, the exemption is "for documents in relation to" the category specified but I do not accept that the intention was to exempt only the specified category itself.
Case: Smith v Federal Commissioner of Taxation [1987] HCA 48 ; (1987) 164 CLR 513
Outcome: cited
While in some contexts "in respect of" may have a wider meaning than "in relation to" ( Smith v Federal Commissioner of Taxation [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J; citing Nowegijick v R (1983) 144 DLR (3d) 193 at 200)), in the context of the Schedule "in respect of" has a narrower meaning. That is, "in respect of" is used in the sense of "with reference to" (the Macquarie Dictionary , 4 th ed, 2005 defines "with (or in) respect to" to mean ' in relation to or reference to ', while the Shorter Oxford Dictionary , 5 th ed, 2002 definition includes '[ r ] elation, connection, reference, regard '). A sufficient or material connection or relationship is required when "in respect of" is used, rather than a mere direct or indirect relationship when "in relation to" is used ( Harris v Commissioner of Taxation [2002] FCAFC 226 ; (2002) 125 FCR 46 at [68] [69]). A further restriction on the exemption is thereby introduced for those agencies other than the ABC and SBS.
Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: distinguished
The applicant's case is, shortly, that to practice her religion without being persecuted because of her membership of an unregistered church, she is required to take steps to avoid harm by meeting in small groups. Reliance in this is placed on the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 and especially the following observations of McHugh and Kirby JJ at [43]: " The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of particular social groups. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and the relevant persecutory conduct is the harm that will be inflicted ... To determine the issue of a real chance without determining whether the modified conduct was influenced by the threat of harm was to fail to consider that issue properly " : emphasis added; and at [50]: "Insofar as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed."
Case: NABD of 2002 v Minister of Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1
Outcome: cited
The short answer to this is that it attributes to the Tribunal a requirement of the applicant that is not present in its reasons. It did not decide the case on the basis that it was reasonable to expect that the applicant would, or would have to continue to, take reasonable action to avoid harm. Having rejected on credibility grounds that the applicant's group subdivided itself on a number of occasions to make it "less noticeable to the police", there was no claim before the Tribunal that the applicant had modified her behaviour in any way so as to practise her religion without risk of persecution. The applicant's claim was that she was a member of a small group and was persecuted as such. While accepting her small group membership, the Tribunal rejected the claim to persecution, relying both on the unreliability of the applicant's evidence and on the absence of country information relating to the targeting of small Christian groups such as the applicant's. The Tribunal in other words, did not ask itself a wrong question. It addressed the case advanced by the applicant and it considered, in light of what it accepted of that case, whether she had a well-founded fear of persecution if she returned to China. It did not ask whether it was possible for the applicant to live in China in such a way that as to avoid harm. Rather, it concluded that, in the manner in which she actually practised her religion, she would not put herself at risk of persecution from the Chinese authorities: cf NABD of 2002 v Minister of Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at [151] and [161] ff. 7 I will order that the application be dismissed and that the applicant pay the costs of the first respondent. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 10 February 2006 Counsel for the Applicant: Mr Keen Solicitor for the Applicant: Refugee Advocacy Service of South Australia Counsel for the Respondent: Mr Roder Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 February 2006 Date of Judgment: 10 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/74.html