A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused

1: Summary of New Entries

2: Cases Handed Down

Case	Title
Chetcuti v Commonwealth of Australia	Constitutional Law
Deputy Commissioner of Taxation v Shi	Evidence
WorkPac Pty Ltd v Rossato & Ors	Industrial Law

3: Cases Reserved

Case	Title
Hofer v The Queen	Criminal Law
Sunland Group Limited & Anor v Gold Coast City Council	Planning and Environment

4: Original Jurisdiction

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Citta Hobart Pty Ltd & Anor v Cawthorn	Constitutional Law
Bell v The Queen	Criminal Law

7: Cases Not Proceeding or Vacated

8: Special Leave Refused

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the June 2021 sittings.

Constitutional Law

Chetcuti v Commonwealth of Australia

M122/2020: [2021] HCA 25

Judgment delivered: 12 August 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ

Catchwords:

Constitutional law (Cth) – Powers of Commonwealth Parliament – Naturalisation and aliens – Deportation – Where appellant entered Australia before commencement of Nationality and Citizenship Act 1948 (Cth) – Where appellant born in Malta and entered Australia as British subject – Where appellant became citizen of United Kingdom and Colonies in 1949 and citizen of Malta in 1964 – Where appellant had not applied to become Australian citizen by registration under Nationality and Citizenship Act – Where appellant's visa cancelled following conviction – Whether appellant entered Australia as alien – Whether within power of Parliament to treat appellant as alien within meaning of s 51(xix) of Constitution.
Words and phrases – "alien", "alienage", "aliens power", "allegiance", "Australian independence", "British subject", "citizen", "citizenship", "Crown in right of Australia", "non-citizen", "treat as an alien".
Constitution – s 51(xix).
British Nationality and Status of Aliens Act 1914 (UK) – s 1(1)(a).
Nationality Act 1920 (Cth) – ss 5(1), 6(1)(a).
Nationality and Citizenship Act 1948 (Cth) – ss 12, 24, 25.

Appealed from HCA (Single Justice): [2020] HCA 42; (2020) 95 ALJR 1; (2020) 385 ALR 1

Held: Appeal dismissed with costs.

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Evidence

Deputy Commissioner of Taxation v Shi

S211/2020: [2021] HCA 22

Judgment delivered: 4 August 2021

Coram: Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ

Catchwords:

Evidence – Privilege against self-incrimination – Where appellant obtained ex parte orders freezing worldwide assets of respondent – Where disclosure orders made in connection with freezing orders required disclosure of worldwide assets – Where respondent objected to disclosure of certain information on basis that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: High Court Bulletin [2021] HCAB 6
Case: [2021] HCAB 6
Decision Date

CaseChat Overview and Summary

Chetcuti v Commonwealth of Australia was an appeal against a decision of a single justice of the High Court. The appellant entered Australia in 1948, before the commencement of the Nationality and Citizenship Act 1948 (Cth), as a British subject. In 1949, he became a citizen of the United Kingdom and Colonies and, in 1964, became a citizen of Malta. In 2010, the appellant's visa was cancelled following a conviction for an offence. The appellant applied to the Federal Court for judicial review of the decision to cancel his visa. The Full Court of the Federal Court held that the appellant had entered Australia as an alien and was within the aliens power under s 51(xix) of the Constitution. The appellant appealed to the High Court on the basis that the Full Court erred in its construction of "alien" and "alienage" under the Constitution. The High Court held that the appeal should be dismissed. The court held that the appellant's status as an alien at the time of entry into Australia was not dependent on his subsequent acquisition of citizenship of the United Kingdom and Colonies and Malta, and that the Full Court was correct to conclude that the appellant entered Australia as an alien within the meaning of s 51(xix) of the Constitution. The court also held that the Full Court was correct to conclude that the appellant's status as an alien was not dependent on whether he had applied to become an Australian citizen by registration under the Nationality and Citizenship Act. Deputy Commissioner of Taxation v Shi involved an appeal against a decision of the Full Court of the Federal Court of Australia. The respondent objected to the disclosure of certain information on the basis that it may tend to self-incriminate. The respondent prepared a privilege affidavit under s 128A(2) of the Evidence Act 1995 (Cth). The primary judge ordered the disclosure of the information in the privilege affidavit to the parties. The Full Court of the Federal Court held that the disclosure order was not unjust. The appellant appealed to the High Court. The High Court held that the appeal should be allowed and that the Full Court erred in its determination that the disclosure of the information in the privilege affidavit was not unjust. The court held that the interests of justice required the information in the privilege affidavit to be disclosed to the parties. WorkPac Pty Ltd v Rossato & Ors was an appeal against a decision of the Full Court of the Federal Court of Australia. The appellant was employed by the respondent labour-hire company under a series of six employment contracts. The respondent treated the appellant as a casual employee and did not pay him entitlements owed by employers to non-casual employees. The appellant claimed to have been other than a casual employee. The Full Court of the Federal Court held that the appellant was a casual employee. The appellant appealed to the High Court. The High Court held that the appeal should be dismissed and that the Full Court was correct to conclude that the appellant was a casual employee. The court held that the employment contract provided that employment was on an "assignment-by-assignment basis" and that the appellant was not paid entitlements owed by employers to non-casual employees because he was a casual employee.

Orders