mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ryan v Director-General of New South Wales National Parks and Wildlife Service [2004] NSWIRComm 160
Outcome: approved
Mr Samsonidis submits that the purposive interpretation approach applies equally to 'lawfully intercepted information'. Schmidt J held as much in the New South Wales Industrial Relations Commission in Ryan v Director-General of New South Wales National Parks and Wildlife Service [2004] NSWIRComm 160 at [48] (that case actually concerned 'lawfully obtained information' under the previous s 63). 21 There are a number of differences between the current definitions of 'interception warrant information' and 'lawfully intercepted information'. Importantly, the definition of 'lawfully intercepted information' does not include the words "any other information that is likely to enable the identification of", which were words that Lindgren J said gave specific support to a purposive interpretation. It is not surprising that the definition of 'lawfully obtained information' does not include those words. This is because 'lawfully intercepted information' necessarily encompasses a more readily determinable class of information. It is information that is obtained by lawfully intercepting a telecommunication. 'Interception warrant information' on the other hand encompasses information about the application for, issuing of, existence of and expiry of a warrant, together with "information that is likely to enable the identification of" the relevant telecommunications service or a person likely to use that service. It thus encompasses a wider class of information. The absence from the definition of 'lawfully intercepted information' of the words referred to by Lindgren J does not provide a reason for departing from the purposive approach. At any rate, as I read Lindgren J's reasoning on the textual analysis point, it is additional to, and not merely a part of, his Honour's primary reason for preferring a purposive approach, namely that not to do so would result in absurdity.
Case: Carmody v MacKellar [1996] 791 FCA 1
Outcome: cited
The purposive approach to the construction of s 63 was taken by Merkel J in Carmody v MacKellar [1996] 791 FCA 1 , which involved a challenge by a practising barrister to the issuing of warrants under the TIA Act that allowed the AFP to intercept his telephone communications. The basis of the challenge was that the intercepted conversations would necessarily involve privileged communications. His Honour said: "A barrister has alleged that confidential and privileged communications with his clients were unlawfully intercepted and recorded. These proceedings could also be taken by his clients, being the persons whose privacy and confidentiality is sought to be protected. Yet, if the AFP's submission is correct s 63(2) would operate to prevent those persons from seeking to protect their privacy by appropriate proceedings, by denying access to the very information they require to maintain such proceedings. Such an approach to construction impedes proceedings against law enforcement agencies for the protection of the very privacy the amendments were to procure." 29 Because of the nature of the relief sought to which I will come in due course it is not necessary to resolve all the evidential issues disclosed by what is recorded at [27] and [28]. In particular, I do not need to decide whether the respondent did in fact intercept a telephone conversation involving Mr Samsonidis. The uncontested evidence of Mr Samsonidis' solicitor is that reference was made in a Greek court to what was said to be an intercepted communication involving Mr Samsonidis. How publicly this evidence was given is not clear, but I do not think this matters. The purposive approach mandated by Kizon v Palmer does not apply only where there has been publication to the world at large. That would lead to just as unjustified a result. The mischief in a non-purposive approach that was recognised by Merkel J in Carmody v MacKellar is that a person who knows his communication to have been intercepted could not have access to the evidence of that communication that was needed to challenge its legality. Similarly, the mischief in the non-purposive approach in Kizon v Palmer is an accused person not having access to information that is to be used against him in criminal proceedings in order that he may rebut that information.
Case: Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 297
Outcome: cited
Mr Samsonidis submitted that there are two purposes of the TIA Act . A number of cases have held that "[t]he fundamental objective of the [TIA] Act is to protect the privacy of communications passing between users of telecommunications systems": Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 297 per Sackville J; see also Brown v Commissioner of Australian Federal Police (1988) 83 ALR 477 at 480; Edelsten v Investigating Committee (NSW) (1986) 7 NSWLR 222 at 229. This purpose is evidenced by s 7(1) which provides that telecommunications are not to be intercepted. Subsequent sub-sections provide exceptions to that general position. The second purpose is to assist law enforcement by allowing the contents of certain conversations to be intercepted and used as evidence: Kizon v Palmer (1997) 72 FCR 409 at 442. In a more general sense, the purpose of the TIA Act is to strike a balance between, on the one hand, allowing law enforcement authorities to have access to important information and, on the other, protecting the privacy of members of the public. It does this by providing for a general prohibition on the interception of telecommunications and then providing narrow exceptions.
Case: R v Reardon [2004] NSWCCA 197
Outcome: cited
The purposive approach means, at the least, that it cannot be the intention of the legislature that a person to whom 'lawfully obtained information' is published cannot use that information either to challenge the legality of its being obtained or to defend himself against any allegations made as a result of that information. In the latter case, such an interpretation would run contrary to the well-established principles of justice and fairness that require prosecutors to disclose materials to defendants: see R v Reardon [2004] NSWCCA 197 at [46] [55] per Hodgson JA; R v Ulman-Naruniec [2003] SASC 437 at [136] [146] per Sulan J. In circumstances where as may be the case here publication has not been to the world at large, s 63 of the TIA Act may still prohibit dealings that involve publication of 'lawfully intercepted information' to those not already aware of it. In this case, Mr Samsonidis has had published to him the purported fact that 'lawfully intercepted information' concerning him has been obtained. An interpretation that denies him access to that 'lawfully obtained information' would be absurd and, on the authority of Kizon v Palmer , such an interpretation must be rejected.
Case: R v Ulman-Naruniec [2003] SASC 437
Outcome: cited
The purposive approach means, at the least, that it cannot be the intention of the legislature that a person to whom 'lawfully obtained information' is published cannot use that information either to challenge the legality of its being obtained or to defend himself against any allegations made as a result of that information. In the latter case, such an interpretation would run contrary to the well-established principles of justice and fairness that require prosecutors to disclose materials to defendants: see R v Reardon [2004] NSWCCA 197 at [46] [55] per Hodgson JA; R v Ulman-Naruniec [2003] SASC 437 at [136] [146] per Sulan J. In circumstances where as may be the case here publication has not been to the world at large, s 63 of the TIA Act may still prohibit dealings that involve publication of 'lawfully intercepted information' to those not already aware of it. In this case, Mr Samsonidis has had published to him the purported fact that 'lawfully intercepted information' concerning him has been obtained. An interpretation that denies him access to that 'lawfully obtained information' would be absurd and, on the authority of Kizon v Palmer , such an interpretation must be rejected.
Case: Coleman v Shell Co of Australia Ltd (1943) 45 (SR) 27
Outcome: cited
Section 8(9B) does not have a retrospective operation. The amendment has a future action on past events and not a prior effect on past events (Pearce DC and Geddes RS, Statutory Interpretation in Australia at [10.4], Coleman v Shell Co of Australia Ltd (1943) 45 (SR) 27). ' It takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more ' ( Robertson v City of Nunawading [1973] VR 819 at 824).
Case: Doro v Victorian Railways Commissioners [1960] VR 84
Outcome: cited
Mr Perry relies on s 8 of the Acts Interpretation Act which provides that, unless the contrary intention appears, the repeal of s 8(9) cannot affect his rights acquired under the SRC Act. He submits that the language of the Amending Act and s 8(9B) in particular, does not include clear indicia of retrospectivity nor clear indication that the "unjust result" or "palpable injustice" of an effect on his right to compensation were intended ( Doro v Victorian Railways Commissioners [1960] VR 84 at 86 per Adam J). 53 The words of s 8(9B) make it clear that the subsection is intended to apply to former employees and also to a person who subsequently ceases to be an employee. This is also apparent from the extrinsic material. The Second Reading Speech refers to "former employee" and the Explanatory Memorandum to ' people who are no longer employed by the Commonwealth ' as well as to ' former employees '. 54 The right to this compensation under s 8(9B) is not a right unlimited as to time or entitlement. It is activated when the employee ceases employment. It ceases if the employee ceases to be incapacitated. Weekly payments of compensation under the Act with respect to future weeks are contingent upon the employee being incapacitated for work as a result of his or her injury during those future weeks.
Case: Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430
Outcome: cited
Mr Perry's situation is different to those in Kraljevich and Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430. In Kraljevich it was held that the injured employee had an entitlement to be compensated ' for a sum of money calculated in a particular way ' (at 650 per Latham CJ). This was, however, in the context of a right of redemption, which accrued on injury. Similarly, in Esber , there was a substantive right in existence at the time of the relevant repeal and amendment.
Case: Fisher v Hebburn Ltd [1960] HCA 80 ; (1960) 105 CLR 188
Outcome: cited
Subject to a reasonably certain intention to the contrary, an amending Act should be understood as not applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events ( Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267 per Dixon CJ). Prima facie, it is construed as having a prospective operation only and as not attaching new legal consequences to facts or events which occurred before its commencement ( Fisher v Hebburn Ltd [1960] HCA 80 ; (1960) 105 CLR 188 at 194 per Fullager J).
Case: Kraljevich v Lake View and Star Ltd [1945] HCA 29 ; (1945) 70 CLR 647
Outcome: applied
Mr Perry contends that his rights to compensation by way of payments calculated under s 8(9) before amendment accrue as at the date of injury, or impairment. He says that those rights to payment continue in perpetuity until certain events prescribed in the statute take place, which are not relevant, or Parliament legislates to alter or remove those rights. That must be done clearly and the intent made clear before such an amendment would have retrospective effect to take away his rights ( Kraljevich v Lake View and Star Ltd [1945] HCA 29 ; (1945) 70 CLR 647). The right to payment or compensation extends to the manner of calculation ( Kraljevich at 650 per Latham CJ). If s 8(9B) affects those rights to compensation, he submits that it operates retrospectively. Accordingly, he submits, the subsection does not apply to an injury which occurred before the commencement date. 56 Mr Perry's situation is different to those in Kraljevich and Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430. In Kraljevich it was held that the injured employee had an entitlement to be compensated ' for a sum of money calculated in a particular way ' (at 650 per Latham CJ). This was, however, in the context of a right of redemption, which accrued on injury. Similarly, in Esber , there was a substantive right in existence at the time of the relevant repeal and amendment. 58 The Amending Act does not differentiate between injuries that occurred before and after it came into force. It does not affect employees' rights to payments due on cessation of employment but only the calculation of those payments as made from week to week, the procedure or mode of calculation (cf Kraljevich ). The rights of the employee are fixed by reference to the injury and the continuation in or cessation of employment. The changes brought about by amendment were not to those rights but to the practice and procedure applied to enforce or calculate them ( Maxwell at 267 per Dixon CJ). Those changes do not have a retrospective operation on Mr Perry's rights.
Case: Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261
Outcome: cited
Subject to a reasonably certain intention to the contrary, an amending Act should be understood as not applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events ( Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267 per Dixon CJ). Prima facie, it is construed as having a prospective operation only and as not attaching new legal consequences to facts or events which occurred before its commencement ( Fisher v Hebburn Ltd [1960] HCA 80 ; (1960) 105 CLR 188 at 194 per Fullager J). 58 The Amending Act does not differentiate between injuries that occurred before and after it came into force. It does not affect employees' rights to payments due on cessation of employment but only the calculation of those payments as made from week to week, the procedure or mode of calculation (cf Kraljevich ). The rights of the employee are fixed by reference to the injury and the continuation in or cessation of employment. The changes brought about by amendment were not to those rights but to the practice and procedure applied to enforce or calculate them ( Maxwell at 267 per Dixon CJ). Those changes do not have a retrospective operation on Mr Perry's rights.
Case: Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85
Outcome: cited
The second construction satisfies the direction in s 15AA of the Acts Interpretation Act . I am of the view that the second construction applies to subs (9B) and that it is neither an unreasonable nor unnatural construction ( Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 113 per McHugh J). Section 8(9B) does not apply to deprive Mr Perry of the increment. It follows that the decision of the Delegate was correct and the Decision incorrect. That is, Mr Perry is entitled to continue to receive the increment as part of the calculation of his normal weekly earnings. 47 As I have determined that s 8(9B) does not deprive Mr Perry of his entitlements under s 8(6), it is not necessary to decide the question whether s 8(9B) has a retrospective effect. However, as that was the basis of the Tribunal decision, I shall consider it briefly.
Case: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
Both before and after amendment, s 8 applied to persons who had been injured. Section 8(9B) refers to the circumstance ' if the employee has ceased, or ceases, to be employed...' . These are words which should be given a meaning ( Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ). Section 8(9B) specifies application both to a person who has been injured and has already ceased to be employed and to a person who has been injured and who ceases to be employed. Contrary to the Tribunal's conclusion and Mr Perry's submission, the subsection does apply to persons injured before the commencement date. It applies to periods of incapacity after its commencement and changes the method of calculation of normal weekly earnings. 49 As s 8(9B) is drafted, it is not the injury but the cessation of employment that is the condition that imports the application of the subsection, with effect from each future indexation date in relation to that cessation, by reference to the Wage Cost Index. There is no dispute that Mr Perry suffered an injury prior to the commencement of the Amending Act and the operation of s 8(9B) and ceased to be employed after that date. Mr Perry contends that, if s 8(9B) applies to preclude him from payment of the increments to which he would have been entitled under s 8(6) but for the amendment, it will visit new legal consequences on facts or events occurring before its commencement.
Case: Robertson v City of Nunawading [1973] VR 819
Outcome: cited
Section 8(9B) does not have a retrospective operation. The amendment has a future action on past events and not a prior effect on past events (Pearce DC and Geddes RS, Statutory Interpretation in Australia at [10.4], Coleman v Shell Co of Australia Ltd (1943) 45 (SR) 27). ' It takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more ' ( Robertson v City of Nunawading [1973] VR 819 at 824).
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165].
Case: Appellant 2395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: cited
These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165].