mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723
Outcome: cited
Allsop J applied this principle in Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723.
Case: Patterson, Re; Ex parte Taylor (2001) 207 CLR 291
Outcome: distinguished
The applicant submits that the question whether the Treasurer is satisfied that an acquisition is contrary to the national interest is a jurisdictional fact and that it is not made out if the matters the Treasurer took into account do not support a reasonable and rational conclusion to that effect. She referred to the reasons for judgment of Kirby J in Re Patterson; Ex parte Taylor (2001) 207 CLR 291, in particular at 504-505 [338]. The reasons of Kirby J do seem to support the submission advanced by the applicant, but I would not apply them in this case. None of the other Justices in Re Patterson; Ex parte Taylor (supra) took a similar approach. For example, Gaudron J, who did discuss the concept of national interest, decided the case on the basis that the Minister asked herself the wrong question (at 417-420 [74]-[82]). If there is a jurisdictional fact in this case it is not whether the acquisition is contrary to the national interest but, rather, whether the Treasurer was satisfied that the acquisition is contrary to the national interest. A question of that nature would not turn, ordinarily at least, on the Court's conclusion as to whether the material before the Minister provided a reasonable or rational foundation for the conclusion reached by the Minister. 122 I reject the applicant's submission that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. 123 For these reasons I make the following orders: 1. An order in the nature of certiorari quashing the order made by the respondent on 23 February 2005 under s 21A(4) of the Foreign Acquisitions and Takeovers Act 1975 (Cth) ('the Act') and relating to the land known as 481 Esplanade, Grange, in the State of South Australia, being the said land comprised in File Plan 42, Allotment 6, Hundred: Yatala; Subdivision: Grange ('the property'). 2. An order in the nature of mandamus, requiring the respondent to exercise his discretion pursuant to s 21A(4) of the Act and relating to the property according to law.
Case: Pidoto v The State of Victoria [1943] HCA 37 ; (1943) 68 CLR 87
Outcome: cited
I was referred to the authorities which have considered the circumstances in which a legislative provision which is partially invalid will be read down: Pidoto v The State of Victoria [1943] HCA 37 ; (1943) 68 CLR 87 per Latham CJ at 108-111; Victoria v The Commonwealth (supra) per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 501-503. But for s 5A there might have been some difficulties in the way of reading down s 4(6)(a) so that it applied only to non-citizens not ordinarily resident in Australia. For example, there would be the difficulty of a law expressed in general terms and arguably no clear guide as to Parliament's intention as to an appropriate limitation. However, I do not think that those types of difficulties arise here, because by providing in s 5A what is in effect a statutory statement or definition of non-citizens who do and do not fall within the definition of natural persons caught by s 4(6)(a) the Federal Parliament has sufficiently revealed an intention that that subsection should operate in relation to non-citizens even if it is otherwise invalid. Section 4(6)(a) insofar as it applies to non-citizens is a valid exercise of the aliens power. 56 The applicant made reference to the Federal Parliament's power to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws (s 51(xxxi)). Initially, the applicant contended that ss 4(6) and 21A of the Act could not be justified by reference to this head of power because, first, the acquisition was not for any purpose in respect of which the Parliament had power to make laws, and secondly, the acquisition of property was not on just terms. At the hearing, counsel for the applicant said that he was prepared to concede for the purposes of the argument that if there was an acquisition of property it was on just terms. The respondent contends first that ss 4(6) and 21A stand outside the scope of s 51(xxxi) and, secondly, that in any event, there was no acquisition of property within the terms of s 51(xxxi). In my opinion, both of the respondent's submissions should be accepted.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: applied
An effective notice not having been given, the second question is whether the operation of s 25(1D) is contingent upon the giving of an effective notice. The circumstances in which an act done in breach of a condition regulating the exercise of a statutory power will invalidate that exercise were considered by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 388-390 per McHugh, Gummow, Kirby and Hayne JJ. Their Honours said that the relevant question is not whether the condition is mandatory or directory, but whether, by reference to the language of the relevant provision or provisions and the scope and object of the statute as a whole, it was a purpose of the legislation to invalidate an act done in breach of the condition. 71 In my opinion, by reason of the terms of s 25 , the operation of s 25(1D) is contingent upon the giving of an effective notice. Section 25(1) provides that the section has effect where the Treasurer receives a notice. Section 25(1D) refers to 'advice' given under s 25(1B). The 'advice' is of a decision under s 25(1A) , and a decision under s 25(1A) relates to 'the acquisition ... specified in the notice' and the decision which may be made is that there is 'no objection to the proposal specified in the notice'. Furthermore, the offence of contravening a condition referred to in s 25(1C) is linked to the advice of a decision under s 25(1B). In my opinion, there was no effective decision and therefore advice within the provisions of s 25 because there was no proposal specified in a notice and there was no proposal specified in a notice because the purported notice was not effective for the purposes of s 25(1A). 72 As far as the acquisition which took place in 1995 is concerned, s 25(1D) did not operate as a bar to the respondent exercising the power in s 21A(4). It was the acquisition which took place in 1995 which was relied on by the respondent for the purposes of his decision to make the divestiture order.
Case: Russell v Duke of Norfolk [1949] 1 All ER 109
Outcome: cited
In Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 (' Kioa '), Mason J (as he then was) (at 582) referred to the fundamental rule of the common law doctrine of natural justice that, generally speaking, a person is entitled to know the case against him and to be given an opportunity of replying to it. Brennan J (at 612-616) referred to the authorities to the effect that the content of the rules of natural justice will depend on the circumstances of the particular case, including the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Brennan J considered whether there was an irreducible minimum required by the principles of natural justice, namely, that 'the person concerned should have a reasonable opportunity of presenting his case' ( Russell v Duke of Norfolk [1949] 1 All ER 109 per Lord Tucker at 118). Brennan J said (at 615-616): 'Yet Tucker LJ said in Russell v Duke of Norfolk [179] , that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned should have a reasonable opportunity of presenting his case " . If his Lordship's view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, in the generality of cases in which the power is to be exercised, those principles would have a substantial content.'
Case: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28
Outcome: considered
In Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 Gleeson CJ, Gummow and Hayne JJ (Heydon J agreeing at 87 [190]) said (at 35[2]) (footnote omitted): 'The power conferred by s 51(xix) supports legislation determining those to whom is attributed the status of alien; the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons. On the other hand, by a law with respect to naturalisation, the Parliament may remove that status, absolutely or upon conditions. In this way, citizenship may be seen as the obverse of the status of alienage.'
Case: Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493
Outcome: cited
I also agree with the respondent's second submission that in any event the degree of impairment of the applicant's rights with respect to the property is insufficient to attract the operation of s 51(xxxi). In Waterhouse v Minister for the Arts and Territories (1992) 43 FCR 175 the power of a Minister to grant or withhold a permit for an object to be exported to a purchaser under the Protection of Movable Cultural Heritage Act 1986 (Cth) was held to be an insufficient impairment of the rights of the owner of a valuable Australian painting to attract the operation of s 51(xxxi) (see the discussion of Black CJ and Gummow J at 180-185; Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 per Gaudron and Gummow JJ at 505 [23]). In my opinion, similar reasoning can be applied here. The applicant is required to sell the property, but the class to whom she cannot sell the property is very limited (s 21A(7)).
Case: Taylor, Re; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194
Outcome: cited
A natural person may be a citizen of Australia or a non-citizen. In the case of a natural person who is a citizen, there is no definition in the Act of 'resident' or 'ordinarily'. There are a large number of cases which have examined the meaning of those words in various statutory contexts. It seems that the words are not terms of art and the question is one of fact and degree and that a person may have two places of residence: Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 524-525 per Burchett J; Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 197 per Lockhart J. The particular problem of a person possibly being ordinarily resident in two places does not arise here because the criterion in s 4(6) is 'not ordinarily in Australia'.
Case: The Queen v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6 ; (1977) 136 CLR 235
Outcome: cited
The drafting technique whereby s 21A is given an extended operation by s 4(6) is similar to that used in the Trade Practices Act 1974 (Cth) and considered by the High Court in The Queen v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6 ; (1977) 136 CLR 235. 14 The applicant is not within the definition of 'foreign person' within s 21A(1) of the Act . If s 21A applies to her it is by reason of the fact that she is a natural person not ordinarily resident in Australia within s 4(6)(a).
Case: Theophanous v Commonwealth of Australia [2006] HCA 18 ; (2006) 80 ALJR 886
Outcome: cited
In Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 271, Deane and Gaudron JJ said (at 285): 'It is not necessary to repeat what we say in Mutual Pools with respect to the effect of the words "for any purpose in respect of which the Parliament has power to make laws". However, it is necessary to elaborate a little on the phrase "acquisition of property on just terms". Because s 51(xxxi) operates as a constitutional guarantee, the words "acquisition" and "property" are to be construed liberally . However, the power conferred by s 51(xxxi) is one with respect to "acquisition of property on just terms". That phrase must be read in its entirety and, when so read, it indicates that s 51(xxxi) applies only to acquisitions of a kind that permit of just terms. It is not concerned with laws in connexion with which "just terms" is an inconsistent or incongruous notion. Thus, it is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorizing seizure of the property of enemy aliens or the condemnation of prize. Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to "acquisition of property", as that expression is used in s 51(xxxi). It follows that a law which effects or authorizes forfeiture of property in consequence of its use in the commission of an offence against the laws of the Commonwealth stands outside s 51(xxxi).' This passage from the reasons for judgment of Deane and Gaudron JJ was cited with approval by five Justices of the High Court in Theophanous v Commonwealth of Australia [2006] HCA 18 at [55] - [56] . 59 The Act controls the acquisition of property in Australia by a foreign corporation or a natural person not ordinarily resident in Australia. That control involves power to prohibit a proposed acquisition, to approve a proposed acquisition and, in relation to an acquisition which has taken place without approval, to require a person to dispose of the property acquired. It is difficult to see how the subject matter of the Act could be properly controlled or regulated without the power to make a divestiture order. 60 Having regard to the principles which I have identified, in my opinion ss 4(6) and 21A (4) stand outside the scope of s 51(xxxi).
Case: Vassis, Re; Ex parte Leung (1986) 9 FCR 518
Outcome: cited
A natural person may be a citizen of Australia or a non-citizen. In the case of a natural person who is a citizen, there is no definition in the Act of 'resident' or 'ordinarily'. There are a large number of cases which have examined the meaning of those words in various statutory contexts. It seems that the words are not terms of art and the question is one of fact and degree and that a person may have two places of residence: Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 524-525 per Burchett J; Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 197 per Lockhart J. The particular problem of a person possibly being ordinarily resident in two places does not arise here because the criterion in s 4(6) is 'not ordinarily in Australia'.
Case: Victoria v The Commonwealth (Industrial Relations Case) [1995] HCA 45 ; (1995) 187 CLR 416
Outcome: considered
The scope of the external affairs power has been considered by the High Court in a number of recent decisions. Both parties referred extensively to the decisions in Polyukhovich v The Commonwealth [1991] HCA 32 ; (1991) 172 CLR 501 (' Polyukhovich ') and Victoria v The Commonwealth (Industrial Relations Case) [1995] HCA 45 ; (1995) 187 CLR 416 (' Victoria v The Commonwealth '). 31 In Victoria v The Commonwealth, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said (at 485) (footnotes omitted): 'Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth . Dawson J expressed the doctrine in these terms: "[T]he power extends to places, persons, matters or things physically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'." Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ; Deane J; Gaudron J; and McHugh J. They must now be taken as representing the view of the Court.'
Case: Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175
Outcome: applied
I also agree with the respondent's second submission that in any event the degree of impairment of the applicant's rights with respect to the property is insufficient to attract the operation of s 51(xxxi). In Waterhouse v Minister for the Arts and Territories (1992) 43 FCR 175 the power of a Minister to grant or withhold a permit for an object to be exported to a purchaser under the Protection of Movable Cultural Heritage Act 1986 (Cth) was held to be an insufficient impairment of the rights of the owner of a valuable Australian painting to attract the operation of s 51(xxxi) (see the discussion of Black CJ and Gummow J at 180-185; Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 per Gaudron and Gummow JJ at 505 [23]). In my opinion, similar reasoning can be applied here. The applicant is required to sell the property, but the class to whom she cannot sell the property is very limited (s 21A(7)).
Case: XYZ v The Commonwealth [2006] HCA 25 ; (2006) 80 ALJR 1036
Outcome: considered
In XYZ v The Commonwealth [2006] HCA 25 ; (2006) 80 ALJR 1036 the High Court considered the validity of provisions of the Crimes Act 1914 (Cth) which made it an offence for a person defined as an Australian citizen or a resident of Australia while outside Australia to engage in sexual intercourse with a person under 16 years of age, or to commit an act of indecency on a person under 16 years of age. By a majority of five to two, the Court held that the legislation was valid under the external affairs power. Of the majority, Gleeson CJ and Kirby J each wrote separate judgments and Gummow, Hayne and Crennan JJ prepared joint reasons. Callinan and Heydon JJ dissented.
Case: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Outcome: referred to
Mr Spencer submitted that he had sought on a number of occasions to suggest a reasonable basis upon which this proceeding could be settled, and that the ACCC had acted unreasonably in refusing to engage with him. He referred to Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 at 201 where Hill J summarised the principles that would ordinarily apply with regard to costs when a proceeding has not gone to trial. His Honour said: "These cases seem to me support the following propositions being made. (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order: Stratford [ J T Stratford &amp; Son Ltd v Lindley (No 2) [1969] 1 WLR 1547] and the SEQEB case [ South East Queensland Electricity Board v Australian Telecommunications Commission (unreported, Federal Court, 10 February 1989, Pincus J)] . (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits or, for a Court determining how the costs of the proceeding should be borne to endeavour to determine the outcome of a hypothetical trial: Stratford . This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ( SEQEB ). (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: cf Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371. (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted: cf Re Asiatic Electric Co Pty Ltd [1973] 1 NSWLR 603 at 606, a case which, however, depended upon the specific working of the statute under consideration."
Case: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622
Outcome: referred to
Mr Spencer also drew attention to a similar statement of principle by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 626. 19 Mr Spencer argued that he had at all times acted reasonably in relation to the complaint brought against him by the ACCC. When the matter was first drawn to his attention, by a letter dated 14 April 2003 setting out the ACCC's concerns, he had caused his solicitors to reply to that letter, on 20 May 2003, responding in detail to the allegations. On 11 June 2003, the ACCC had written to his solicitors, thanking them for his response. That letter went on to say: "This office is currently assessing the information provided by you on behalf of your client. However, it is apparent a number of issues remain, therefore as soon as this office has completed its assessment of your response I will contact you to arrange a mutually suitable time to meet with you and your client to discuss this matter further." 20 It appears from the correspondence that was tendered before me that, despite the suggestion that there would be a meeting between the ACCC and Mr Spencer to discuss the matter further, no such meeting took place. Instead, on 11 August 2004, Deacons, acting on behalf of the ACCC, wrote to Mr Spencer's solicitors informing them that the matter had now been "fully investigated" and that the ACCC had determined to pursue it further. The letter went on to say that a proceeding had been instituted in the Federal Court that day, and enclosed a copy of the application and statement of claim.