Duncan v New South Wales

In *Duncan v New South Wales*, the High Court of Australia considered challenges to the validity of the *Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014* (NSW) (the Amendment Act). The Amendment Act, which inserted Schedule 6A into the *Mining Act 1992* (NSW), cancelled three exploration licences without compensation, following recommendations from the Independent Commission Against Corruption. The proceedings were brought by way of special case, with the parties seeking determination from the Full Court on specific legal questions.

The central legal issues before the High Court were whether the Amendment Act constituted an exercise of judicial power, akin to a bill of pains and penalties, thereby infringing an implied constitutional limitation on State legislative power. Further questions arose concerning the legislative competence of the New South Wales Parliament to enact such a law under the *Constitution Act 1902* (NSW), and whether a provision of the Amendment Act authorising the use or disclosure of information was inconsistent with the Commonwealth's *Copyright Act 1968* and thus invalid under section 109 of the Constitution.

The Court reasoned that the Amendment Act could not be characterised as an exercise of judicial power. Consequently, the argument that it contravened an implied constitutional limitation on legislative power failed. Regarding the alleged inconsistency with the *Copyright Act*, the Court held that the specific questions did not arise on the facts presented in the special cases. The parties had not demonstrated a state of facts necessitating a decision on the copyright issue, particularly in light of the State's stated intention to rely on its statutory licence and pay equitable remuneration.

The High Court answered the questions posed in the special cases. It determined that clauses 1 to 13 of Schedule 6A to the *Mining Act 1992* (NSW) were not invalid. The question of inconsistency with the *Copyright Act 1968* (Cth) was deemed not to arise on the facts. Finally, the Court ordered that the plaintiff(s) in each special case should pay the costs.