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High Court Bulletin

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

[2019] HCAB 6 (21 August 2019)

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
Comcare v Banerji	Constitutional Law
Palmer & Ors v Australian Electoral Commission & Ors	Constitutional Law
Northern Territory of Australia v Sangare	Practice and Procedure
Glencore International AG & Ors v Commissioner of Taxation of the Commonwealth of Australia & Ors	Privilege
Victorian Building Authority v Andriotis	Statutes

3: Cases Reserved

Case	Title
BMW Australia Ltd v Brewster & Anor	Constitutional Law
Vella & Ors v Commissioner of Police (NSW) & Anor	Constitutional Law
Westpac Banking Corporation & Anor v Lenthall & Ors	Constitutional Law
Lordianto & Anor v Commissioner of the Australian Federal Police; Kalimuthu & Anor v Commissioner of the Australian Federal Police	Criminal Law
Commissioner of Taxation of the Commonwealth of Australia v Sharpcan Pty Ltd	Taxation

4: Original Jurisdiction

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Hocking v Director-General of the National Archives of Australia	Administrative Law
Singh v The Queen; Nguyen v The Queen	Criminal Law
Binsaris v Northern Territory of Australia; Webster v Northern Territory of Australia; O'Shea v Northern Territory of Australia; Austral v Northern Territory of Australia	Statutory Interpretation

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 August 2019 sittings.

Constitutional Law

Comcare v Banerji

C12/2018: [2019] HCA 23

Judgment delivered: 7 August 2019

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

Catchwords:

Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where Australian Public Service ("APS") Code of Conduct ("Code") included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS – Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner – Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment – Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament – Where employment with Commonwealth terminated for breach of Code – Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for "injury", defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of…

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: [2019] HCAB 6
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard and decided several cases during August 2019. In Comcare v Banerji, the Court held that the implied freedom of communication on governmental and political matters was not infringed by the requirement that public servants behave in a way that upholds the integrity and good reputation of the Australian Public Service. The Court also found that the burden imposed on the freedom was justified and necessary for a legitimate purpose. In Palmer & Ors v Australian Electoral Commission & Ors, the Court dismissed the application for an injunction to prevent the Australian Electoral Commission from publishing information about the indicative two-candidate preferred count for a Division before the close of polls in all parts of the nation. The Court held that the publication did not have any demonstrated effect on electoral choices, was not inaccurate or misleading, and did not constitute an imprimatur to any particular candidate or outcome. In Northern Territory of Australia v Sangare, the Court held that the Northern Territory of Australia was entitled to an order for costs against the respondent despite the respondent's impecuniosity. The Court found that the impecuniosity of the unsuccessful party could not alone justify a decision to deny the successful party its costs. In Glencore International AG & Ors v Commissioner of Taxation of the Commonwealth of Australia & Ors, the Court held that legal professional privilege did not operate as an actionable legal right and that the policy considerations did not justify the creation of a new actionable right in respect of documents subject to legal professional privilege. The Court dismissed the proceeding with costs. In Victorian Building Authority v Andriotis, the Court held that the local registration authority had discretion to refuse registration for non-compliance with the "good character" requirement in the local Act. The Court found that the requirement was a law based on a qualification relating to fitness to carry on an occupation and that the registration authority had residual discretion to refuse registration.

Orders