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High Court Bulletin

Produced by the Legal Research Officer,
High Court of Australia Library

[2020] HCAB 1 (14 February 2020)

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
Love v Commonwealth of Australia; Thoms v Commonwealth of Australia	Constitutional law
Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd	Customs and excise
Kadir v The Queen; Grech v The Queen	Evidence

3: Cases Reserved

Case	Title
Hocking v Director-General of the National Archives of Australia	Administrative Law
KMC v Director of Public Prosecutions (SA)	Constitutional Law
Moore v Scenic Tours Pty Ltd	Consumer Protection
Coughlan v The Queen	Criminal Law
Swan v The Queen	Criminal Law
Commonwealth of Australia v Helicopter Resources Pty Ltd & Ors	Evidence

4: Original Jurisdiction

5: Section 40 Removal

6: Special Leave Granted

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 February 2020 sittings.

Constitutional law

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

B43/2018; B64/2018: [2020] HCA 3

Judgment delivered: 11 February 2020

Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ

Catchwords:

Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Meaning of "aliens" – Where plaintiffs foreign citizens, born outside Australia, who did not acquire Australian citizenship – Where plaintiffs biological descendants of indigenous peoples – Where plaintiffs' visas cancelled under s 501(3A) of Migration Act 1958 (Cth) – Whether statutory citizenship and constitutional alienage co-terminous – Whether an Aboriginal Australian (defined according to tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) can be "alien" within meaning of s 51(xix) of Constitution – Whether s 51(xix) supports application of ss 14, 189 and 198 of Migration Act to plaintiffs – Whether plaintiffs satisfy tripartite test.
Words and phrases – "Aboriginal Australian", "alienage", "aliens", "allegiance", "body politic", "citizen", "connection to country", "essential meaning", "foreign citizen", "indicia of alienage", "nationality", "non-alien", "non-alienage", "non-citizen", "obligation of protection", "political community", "polity", "sovereignty", "spiritual connection", "subject", "territory", "traditional laws and customs", "tripartite test", "unlawful non-citizen".
Constitution – s 51(xix), (xxvii).
Australian Citizenship Act 2007 (Cth) – ss 12, 13, 14, 15, 16.
Migration Act 1958 (Cth) – ss 5, 14, 189, 196, 198, 200, 501.

Special Cases referred to Full Court on 5 March 2019

Held: Questions answered.

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Customs and excise

Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd

S161/2019: [2020] HCA 2

Judgment delivered: 5 February 2020

Coram: Kiefel CJ, Bell, Gageler, Keane, Gordon…

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

Case: [2020] HCAB 1
Decision Date

CaseChat Overview and Summary

The High Court of Australia delivered judgments in two constitutional law cases, Love v Commonwealth of Australia and Thoms v Commonwealth of Australia, and one customs and excise case, Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd. In Love and Thoms, the High Court considered whether foreign-born descendants of indigenous Australians could be considered "aliens" for the purposes of the Commonwealth's legislative power over naturalisation and aliens under section 51(xix) of the Constitution. The Court held that an Aboriginal Australian, defined according to the tripartite test in Mabo v Queensland (No 2), could be considered an "alien" within the meaning of section 51(xix) of the Constitution. The Court also held that the statutory citizenship and constitutional alienage were not coterminous. In Comptroller-General of Customs, the Court considered the proper classification of vitamin and garcinia preparations under the Customs Tariff. The Court held that the Administrative Appeals Tribunal did not err in classifying the preparations under heading 3004 ("medicaments") rather than under headings 1704 ("sugar confectionery") or 2106 ("food preparations").

In Love and Thoms, the Court examined the meaning of "alien" in the context of the Commonwealth's legislative power under section 51(xix) of the Constitution. The Court found that the term "alien" in section 51(xix) is not limited to foreign citizens who have never had any connection to Australia. Instead, the Court held that the term encompasses individuals who are not Australian citizens and do not have a sufficient connection to Australia to be considered part of the Australian body politic. The Court also found that the term "alien" is not limited to those who have never had any connection to Australia, as it includes individuals who were born outside Australia and have a connection to Australia through their indigenous ancestry. The Court held that the plaintiffs in Love and Thoms satisfied the tripartite test for being considered Aboriginal Australians and, therefore, could be considered "aliens" for the purposes of section 51(xix) of the Constitution.

In Comptroller-General of Customs, the Court considered the proper classification of vitamin and garcinia preparations under the Customs Tariff. The Court held that the Administrative Appeals Tribunal did not err in classifying the preparations under heading 3004 ("medicaments") rather than under headings 1704 ("sugar confectionery") or 2106 ("food preparations"). The Court found that the preparations were not excluded from heading 3004 by Note 1(a) to Chapter 30 of Schedule 3 to the Customs Tariff Act 1995 (Cth). The Court also held that the Comptroller-General of Customs did not establish that the preparations were classifiable under headings 1704 or 2106.

The High Court's decisions in Love and Thoms and Comptroller-General of Customs have important implications for the interpretation of constitutional provisions and the classification of goods under the Customs Tariff. The Court's finding that foreign-born descendants of indigenous Australians can be considered "aliens" for the purposes of the Commonwealth's legislative power under section 51(xix) of the Constitution expands the scope of the Commonwealth's power in this area. The Court's decision in Comptroller-General of Customs clarifies the proper classification of vitamin and garcinia preparations under the Customs Tariff and provides guidance for future classification disputes.

Orders