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Submissions of the Plaintiffs
,, . IN THE HIGH COURT OF AUSTRALIA SYDNEY REGISTRY No. S389 of 2011 BETWEEN: British American Tobacco Australasia Limited ACN 002 717 160 First Plaintiff British American Tobacco (Investments) Limited 10 BCN 00074974 Second Plaintiff British American Tobacco Australia Limited ACN 000 151 100 Third Plaintiff and The Commonwealth of Australia 20 Defendant SUBMISSIONS OF THE PLAINTIFFS Part 1: Publication of Submissions 1. These submissions are in a form suitable for publication on the internet. Part II: Issues Arising in the Proceedings 2. The issues arising in these proceedings are: (a) First, whether, apart from s. 15 of the Tobacco Plain Packaging Act 2011 (Cth) (TPP Act), some or all of the provisions of the TPP Act would effect an acquisition of any, and if so what, property of the plaintiffs or any of them otherwise than on 30 just terms (within the meaning of s. 51 (xxxi) of the Constitution. (b) S econdfy, whether s. 15 of the TPP Act is a valid law of the Commonwealth. Part III: Notices under Section 78B of the Judiciary Act 1903 (Cth) 3. The plaintiffs have served notices under s. 78B of the Judiciary Act 1903 (Cth). Part IV: Material Facts 4. The material facts are set out in Section A of the Questions Reserved dated 27 February 2012. Date of document: 26 March 2012 Filed on behalf of: The plaintiffs Prepared by: Corrs Chambers Westgarth riLED Lawyers Solicitors Code 973 Level32 Tel: (02) 9210 6 00 ~ 1 "' c\ '"l , .., "2 Z 0 l';n.J\\ r_,.., I Governor Phillip Tower Fax: (02) 9210 6 11 1 Farrer Place Ref: BJW/JXM 056488 Sydney NSW 2000 JamesWhitmke -t'~r~~-~·r:Jv •,-\:' ;<()IIRNE ' 2 Part V: Plaintiffs' Argument A. -
Palmer-WA Pltf.Pdf
H I G H C O U R T O F A U S T R A L I A NOTICE OF FILING This document was filed electronically in the High Court of Australia on 23 Apr 2021 and has been accepted for filing under the High Court Rules 2004. Details of filing and important additional information are provided below. Details of Filing File Number: B52/2020 File Title: Palmer v. The State of Western Australia Registry: Brisbane Document filed: Form 27A - Appellant's submissions-Plaintiff's submissions - Revised annexure Filing party: Plaintiff Date filed: 23 Apr 2021 Important Information This Notice has been inserted as the cover page of the document which has been accepted for filing electronically. It is now taken to be part of that document for the purposes of the proceeding in the Court and contains important information for all parties to that proceeding. It must be included in the document served on each of those parties and whenever the document is reproduced for use by the Court. Plaintiff B52/2020 Page 1 IN THE HIGH COURT OF AUSTRALIA No B52 of 2020 BRISBANE REGISTRY BETWEEN: CLIVE FREDERICK PALMER Plaintiff and STATE OF WESTERN AUSTRALIA 10 Defendant PLAINTIFF’S OUTLINE OF SUBMISSIONS Clive Frederick Palmer Date of this document: 23 April 2021 Level 17, 240 Queen Street T: 07 3832 2044 Brisbane Qld 4000 E: [email protected] Plaintiff Page 2 B52/2020 -1- PART I: FORM OF SUBMISSIONS 1. These submissions are in a form suitable for publication on the Internet. PART II: ISSUES PRESENTED 2. -
Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012
Submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 The purpose of this submission is to examine four key objections which have been raised to the establishment of a permanent military court in Australia in the form of the Military Court of Australia. The submission is not intended to be comprehensive, but rather seeks to consider some of the legal issues which arise in relation to these four objections.1 The authors do not consider that the first three objections are legitimate bases to reject the establishment of the Military Court of Australia, but are concerned that the fourth objection (the lack of jury trial) may give rise to a future constitutional challenge. The four objections to the establishment of a permanent military court which have been raised are as follows: 1. The establishment of a permanent court is unnecessary given that the current system is not defective This objection is based on the idea that if the system is not broken it does not need fixing. The current system of courts martial and Defence Force magistrates (reintroduced after the High Court struck down the Australian Military Court in Lane v Morrison2), has certainly survived a number of constitutional challenges in the High Court – although often with strong dissents. The strength of those dissents, the continued shifts of opinion within the High Court, and the absence of a clear and coherent consensus within that Court on the extent to which the specific constitutional powers relied upon by the Commonwealth3 can support a military justice system operating outside Chapter III of the Commonwealth Constitution, means that the validity of the current system is assumed rather than assured. -
Chapter One the Seven Pillars of Centralism: Federalism and the Engineers’ Case
Chapter One The Seven Pillars of Centralism: Federalism and the Engineers’ Case Professor Geoffrey de Q Walker Holding the balance: 1903 to 1920 The High Court of Australia’s 1920 decision in the Engineers’ Case1 remains an event of capital importance in Australian history. It is crucial not so much for what it actually decided as for the way in which it switched the entire enterprise of Australian federalism onto a diverging track, that carried it to destinations far removed from those intended by the generation that had brought the Federation into being. Holistic beginnings. How constitutional doctrine developed through the Court’s decisions from 1903 to 1920 has been fully described elsewhere, including in a paper presented at the 1995 conference of this society by John Nethercote.2 Briefly, the original Court comprised Chief Justice Griffith and Justices Barton and O’Connor, who had been leaders in the federation movement and authors of the Commonwealth of Australia Constitution. The starting-point of their adjudicative philosophy was the nature of the Constitution as an enduring instrument of government, not merely a British statute: “The Constitution Act is not only an Act of the Imperial legislature, but it embodies a compact entered into between the six Australian colonies which formed the Commonwealth. This is recited in the Preamble to the Act itself”.3 Noting that before Federation the Colonies had almost unlimited powers,4 the Court declared that: “In considering the respective powers of the Commonwealth and the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State”.5 The founders had considered Canada’s constitutional structure too centralist,6 and had deliberately chosen the more decentralized distribution of powers used in the Constitution of the United States. -
Murdoch University School of Law Michael Olds This Thesis Is
Murdoch University School of Law THE STREAM CANNOT RISE ABOVE ITS SOURCE: THE PRINCIPLE OF RESPONSIBLE GOVERNMENT INFORMING A LIMIT ON THE AMBIT OF THE EXECUTIVE POWER OF THE COMMONWEALTH Michael Olds This thesis is presented in fulfilment of the requirements of a Bachelor of Laws with Honours at Murdoch University in 2016 Word Count: 19,329 (Excluding title page, declaration, copyright acknowledgment, abstract, acknowledgments and bibliography) DECLARATION This thesis contains no material which has been accepted for the award of any other degree or diploma in any other University. Further, to the best of my knowledge or belief, this thesis contains no material previously published or written by another person except where due reference is made in the text. _______________ Michael Olds ii COPYRIGHT ACKNOWLEDGMENT I acknowledge that a copy of this thesis will be held at the Murdoch University Library. I understand that, under the provisions of s 51(2) of the Copyright Act 1968 (Cth), all or part of this thesis may be copied without infringement of copyright where such reproduction is for the purposes of study and research. This statement does not signal any transfer of copyright away from the author. Signed: ………………………………… Full Name of Degree: Bachelor of Laws with Honours Thesis Title: The stream cannot rise above its source: The principle of Responsible Government informing a limit on the ambit of the Executive Power of the Commonwealth Author: Michael Olds Year: 2016 iii ABSTRACT The Executive Power of the Commonwealth is shrouded in mystery. Although the scope of the legislative power of the Commonwealth Parliament has been settled for some time, the development of the Executive power has not followed suit. -
Jurisdiction, Granted Special Leave to Appeal, Refused Special Leave to Appeal and Not Proceeding Or Vacated
HIGH COURT BULLETIN Produced by the Legal Research Officer, High Court of Australia Library [2012] HCAB 08 (24 August 2012) 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: Cases Handed Down ..................................... 3 2: Cases Reserved ............................................ 8 3: Original Jurisdiction .................................... 30 4: Special Leave Granted ................................. 32 5: Cases Not Proceeding or Vacated .................. 40 6: Special Leave Refused ................................. 41 SUMMARY OF NEW ENTRIES 1: Cases Handed Down Case Title Public Service Association of South Australia Administrative Law Incorporated v Industrial Relations Commission of South Australia & Anor J T International SA v Commonwealth of Constitutional Law Australia; British American Tobacco Australasia Limited & Ors v Commonwealth of Australia – Orders Only RCB as Litigation Guardian of EKV, CEV, CIV Constitutional Law and LRV v The Honourable Justice Colin James Forrest, One of the Judges of the Family Court of Australia & Ors – Orders Only Baker v The Queen Criminal Law Douglass v The Queen – Orders Only Criminal Law Patel v The Queen Criminal Law The Queen v Khazaal Criminal Law Minister for Home Affairs of the Commonwealth Extradition & Ors v Zentai & Ors [2012] HCAB 08 1 24 August 2012 Summary of New Entries Sweeney (BHNF -
'Executive Power' Issue of the UWA Law Review
THE UNIVERSITY OF WESTERN AUSTRALIA LAW REVIEW Volume 43(2) March 2018 EXECUTIVE POWER ISSUE Introduction Dr Murray Wesson ............................................................................................................. 1 Executive Power in Australia - Nurtured and Bound in Anxiety The Hon Robert French AC ............................................................................................ 16 The Strange Death of Prerogative in England Thomas Poole .................................................................................................................... 42 Judicial Review of Non-Statutory Executive Action: Australia and the United Kingdom Amanda Sapienza .............................................................................................................. 67 Section 61 of the Commonwealth Constitution and an 'Historical Constitutional Approach': An Excursus on Justice Gageler's Reasoning in the M68 Case Peter Gerangelos ............................................................................................................. 103 Nationhood and Section 61 of the Constitution Dr Peta Stephenson ........................................................................................................ 149 Finding the Streams' True Sources: The Implied Freedom of Political Communication and Executive Power Joshua Forrester, Lorraine Finlay and Augusto Zimmerman .................................. 188 A Comment on How the Implied Freedom of Political Communication Restricts Non-Statutory Executive Power -
Constitutionally Protected Due Process and the Use of Criminal Intelligence Provisions 125
2014 Constitutionally Protected Due Process and the Use of Criminal Intelligence Provisions 125 CONSTITUTIONALLY PROTECTED DUE PROCESS AND THE USE OF CRIMINAL INTELLIGENCE PROVISIONS ANTHONY GRAY * I INTRODUCTION Demands for government response to perceived threats to national security and personal safety, government incentives to appear ‘tough on crime’ and the absence of an express bill of rights have combined to fuel ever-increasing government intrusions on fundamental rights and liberties that were once thought to be beyond reproach. Recent examples in the Australian context have included property confiscation laws, in the absence of a specific allegation or finding of guilt, reverse onus provisions, curtailment of the right to silence, criminalisation of mere acts of association, and executive detention of individuals. A current area of controversy is the use of ‘closed court’ processes in particular cases, aligned with the adoption of a court process whereby the person affected by the proceeding may lose the opportunity to see or hear the evidence being led against them, and with that the opportunity to cross-examine the witnesses being used. These types of laws offend several fundamental rights, but are claimed by governments to be necessary to protect witnesses and secure important evidence. For ease of reference, and because this is the phrasing used by the relevant legislation in Australia, I will refer to these as ‘criminal intelligence provisions’. This type of legislation raises broader questions, specifically the extent to which a ‘due process’ principle may be derived from Chapter III of the Constitution (‘Chapter III’), and the extent to which such a principle might be engaged to preserve and protect fundamental human rights, such as those affected by ‘criminal intelligence’ type provisions. -
Unenumerated Rights
COMPARATIVE CONSTITUTIONAL LAW (U.S./CANADA/AUSTRALIA),2009 ed. 2‐1 CHAPTER TWO: UNENUMERATED RIGHTS KEY CONCEPTS FOR THE CHAPTER ● U.S. COURTS HAVE HELD THAT THE FIFTH AND FOURTEENTH AMENDMENTS’ PROTECTION AGAINST DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS OF LAW HAS TWO COMPONENTS: LIBERTY CANNOT BE DEPRIVED UNLESS CERTAIN PROCEDURES ARE USED BY GOVERNMENT, AND CERTAIN RIGHTS THAT ARE ENCOMPASSED BY “LIBERTY” CANNOT BE DEPRIVED UNLESS THE GOVERNMENT CAN JUSTIFY THE DEPRIVATION. THE LATTER CONCEPT IS KNOWN AS “SUBSTANTIVE DUE PROCESS” ● IN NEITHER CANADA NOR THE U.S. ARE INDIVIDUAL RIGHTS ABSOLUTE. ‐ IN THE U.S., CERTAIN “FUNDAMENTAL” RIGHTS CAN BE LIMITED ONLY IF THE GOVERNMENT PERSUADES JUDGES THAT THERE ARE GOOD REASONS FOR DOING SO; FOR “NON‐FUNDAMENTAL” RIGHTS, COURTS DEFER TO LEGISLATIVE JUDGMENTS UNDER THE SO‐CALLED “RATIONAL BASIS” TEST ‐ IN CANADA, THE CHARTER PROTECTS “FUNDAMENTAL” RIGHTS AND SUBJECTS THEM TO CLOSE SCRUTINY UNDER A 4‐PRONG TEST (THE “OAKES” TEST); NON‐FUNDAMENTAL RIGHTS ARE SIMPLY DEEMED NOT TO BE PROTECTED BY THE CHARTER ● GIVEN THE BREADTH OF THE LANGUAGE OF THE FOURTEENTH AMENDMENT AND S.7 OF THE CANADIAN CHARTER, IDENTIFICATION OF RIGHTS WORTHY OF ACTIVE JUDICIAL PROTECTION IS A MATTER OF JUDICIAL DISCRETION AND JUDGMENT, CONSIDERING THE TEXT, HISTORY, PRECEDENTS, AND ABILITY OF COURTS TO APPLY JUDICIALLY MANAGEABLE STANDARDS ‐ IN PARTICULAR, JUDGES ON BOTH SIDES OF THE BORDER STRUGGLE TO DISTINGUISH THE PROTECTION OF RIGHTS FROM THE DISCREDITED “LOCHNER ERA,” WHICH HISTORY SUGGESTS INVOLVED JUDGES STRIKING DOWN PROGRESSIVE LEGISLATION BECAUSE OF THEIR PERSONAL RIGHT‐WING POLITICAL VIEWS • THE AUSTRALIAN FRAMERS INCORPORATED SEVERAL RIGHTS INTO THE CONSTITUTION, BUT EXPLICITLY REJECTED OPEN‐ENDED CONSTITUTIONAL ENTRENCHMENT OR INDIVIDUAL RIGHTS. -
8. Fair Trial
8. Fair Trial Contents Summary 220 A common law right 221 Attributes of a fair trial 223 Practical justice 224 Protections from statutory encroachment 226 Australian Constitution 226 Principle of legality 229 International law 229 Bills of rights 229 Justifications for limits on fair trial rights 230 Open justice 231 Limitations on open justice 232 General powers of the courts 234 National security 235 Witness protection 236 Other laws 237 Right to obtain and adduce evidence and confront witnesses 237 Limitations 238 Hearsay evidence 239 Vulnerable witnesses 240 Evidentiary certificates 241 Public interest immunity and national security information 242 Privileges 245 Right to a lawyer 247 Laws that limit legal representation 248 Legal aid and access to justice 250 Appeal from acquittal 251 Laws that allow an appeal from an acquittal 252 Other laws 254 Trial by jury 255 Torture evidence from other countries 255 Civil penalty provisions that should be criminal 256 Conclusion 257 220 Traditional Rights and Freedoms Summary 8.1 The right to a fair trial has been described as ‘a central pillar of our criminal justice system’,1 ‘fundamental and absolute’,2 and a ‘cardinal requirement of the rule of law’.3 8.2 A fair trial is designed to prevent innocent people from being convicted of crimes. It protects life, liberty, property, reputation and other fundamental rights and interests. Being wrongly convicted of a crime has been called a ‘deep injustice and a substantial moral harm’.4 Fairness also gives a trial integrity and moral legitimacy or authority,5 and maintains public confidence in the judicial system. -
Australian Bar Review Ten Years in the High Court
AUSTRALIAN BAR REVIEW TEN YEARS IN THE HIGH COURT - CONTINUITY & CHANGE* The Hon Justice Michael Kirby AC CMG** WHAT IS IT REALLY LIKE? It is almost ten years since my appointment as a Justice of the High Court of Australia. Not long after I had first taken my seat, I addressed a constitutional law class at the University of Sydney. My lecture was titled "What Is It Really Like to be a Justice of the High Court of Australia?". The lecture was later published1. Now, from the advantage of a decade's service, I will describe the changes I have witnessed. A barrister who keeps abreast of the case law necessarily enters the minds of the Justices of the High Court and lives, in a sense, with their values, attitudes and habits of reasoning. Inevitably, not a few speculate on what it would be like to live and work in the great * Text of a talk given to the Bar Readers course, NSW Bar Association, Sydney, 17 October 2005. ** Justice of the High Court of Australia. 1 (1997) 19 Sydney Law Review 514. 2. courthouse in Canberra, by Lake Burley Griffin. There is nothing wrong with aspiration. Some, more ambitious, imagine themselves, decades hence, occupying one of the chambers on the ninth level of that building. However, the numbers called are very few2. In the history of the Court, I was but the fortieth Justice. When Justice McHugh leaves the Court on 31 October 2005, Justice Susan Crennan, the forty-fifth Justice will be sworn3. Forty-five is not many in little more than a century. -
Public Law and Statutory Interpretation
PUBLIC LAW AND STATUTORY INTERPRETATION TOPIC 1: INTRODUCTION TO AUSTRALIAN GOVERNMENT 1.1 Fundamental Concepts and Institutions a) What is public law? - Public law regulates the relationship between the state and individuals (vertical relationship). Whereas, private law regulates the interaction of individuals (horizontal relationship). - Public law concerns how the institutions of states operate to govern the people residing in their territory - Particularly interested in holding the government accountable to the people (expect them to act responsibly, morally etc.) b) What is the rule of law? - No one is above the law and the law binds the state. The Law is supreme. - The Government must exercise power within legal limits (no arbitrary government action ! can only act if legally authorized to do so). - Guarantees equality and ensure accountability - Independent Judiciary reviews the actions of the Executive and Legislature. Check that the two branches are operating within legal limits. - Cf: 'Rule by law'- government uses the law as a tool for its own purposes, without accountability or adherence to its limits. - What does the rule of law require? o Due process (procedural fairness) o Transparency (clear, accessible and open) o Stability (laws should not be able to change arbitrarily) o Consistency (treating like cases alike) o Compatibility with fundamental rights and liberties o Prospectively (Parliament can and sometimes do enact retrospective laws – but known as detrimental to the rule of law) 1 TOPIC 2: PARLIAMENT 2.1 The powers of Australia’s Parliaments a) Parliamentary sovereignty and plenary legislative power - The English system of public law: o Magna Carta 1215: document, which limited the powers of the king, particularly over taxation, which could only be levied under the Magna Carta after receiving the ‘general consent of realm’.