2016

LAW5004: Principles of
Public Law and
Statutory Interpretation
APPENDIX: CASE SUMMARIES
TRIMESTER 3, 2016
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LAW5004: Principles of Public Law and Statutory Interpretation
Appendix 1: Summary of key cases
Case Topic Page
*Only highlighted cases included in
this book
Union Steamship Co of Australia v The powers of Australia’s State Parliaments 3
King ‘peace order and good government’
Kable v DPP (1)
Durham Holdings Pty Ltd v NSW
Ruddock v Vadarlis Executive detention 5
CPCF v Minister for Immigration 9
Waterside Workers’ Federation v J W The Separation of the Judicial Power: the 12
Alexander Boilermakers’ Principles
Boilermakers’ Society of Australia
Wilson v Minister for Aboriginal and Exception to Boilermakers’ principles: persona 14
Torres Strait Islander Affairs designata
Kable v DPP (2) Separation of Judicial Power in State courts 3
Chu Kheng Lim v Minister for Judicial powers – deciding whether someone is 15
Immigration guilty of a crime
Australian Communist Party v The Judicial powers – deciding whether a statute or 18
Commonwealth executive decision is constitutionally valid
Momcilovic v The Queen Judicial powers - Interpreting legislation 20
authoritatively and conclusively
AG v Quin Judicial powers - Deciding whether an 23
administrative decision-maker has acted within
the limits of his or her powers
Thomas v Mowbray Indicial of judicial power – exercise of judicial 25
power resolves existing legal rights and duties.
Within the public interest.
M68-2015 v Minister for Immigration Offshore processing and the Boundaries of 28
Judicial Power
VCB v Brown Statutory Interpretation – General Interpretive 29
Methods
Evans v State of NSW Statutory Interpretation – Text, Purpose and 33
Context
Lacey v AG (QLD) Statutory Interpretation – Text, Purpose and 35
Context. The principle of legality in practice
Project Blue Sky Inc v ABA The problem of conflicting statutory provisions 37
Taylor v Owens – Strata Plan No The problem of drafting errors 40
11564
Al-Kateb v Godwin The principle of legality in practice 43
Coco v The Queen Example of illegality – surveillance devices 46
Ghaidan v Godin-Mendoza Principle of legality 51
He Kaw The v The Queen Mental element in criminal offences 52

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LAW5004: Principles of Public Law and Statutory Interpretation
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
The facts in Kable highlighted the dilemma confronting the State Government of NSW. What course
of action should a Government take when a convicted criminal has served his or her time in prison
and who, on release, is perceived upon cogent evidence to pose a danger to the physical safety of
members of the community?

Facts:
Kable was involved in a custody dispute following the break-up of his marriage. He stabbed his
estranged wife to death in the house in which she lived with the two children of the marriage. He was
charged with murder but the prosecution accepted a plea of guilty to manslaughter by diminished
responsibility. Kable was sentenced to imprisonment for a minimum term of four years.

During his term of imprisonment, he wrote a series of threatening letters to the carers of his two
young children. His behaviour in prison was such “as to cause serious concern that, upon his release,
there would be a repetition of the same conduct that led to the death of his wife”.

The Community Protection Act 1994 (NSW)

The Act was passed by the NSW Parliament. The central thrust of the Act was the conferral of
jurisdiction on the SCNSW to make an order of preventative detention of Kable. The HCA was called
on to determine the constitutional validity of the Act.
The key provisions were found in ss 3 and 5 of the Act:
Section 3

(1) The object of this Act is to protect the community by providing for the preventative detention (by order of the
Supreme Court made on the application of the DPP) of Kable
(2) In the construction of this Act, the need to protect the community is to be given paramount consideration
(3) This Act authorises the making of a detention order against Kable and does not authorise the making of a
detention order against any other person
(4) For the purposes of this section, Kable is the person of that name who was convicted in NSW of 1 August
1990 of the manslaughter of his wife, Hilary Kable

Section 5

(1) On an application made in accordance with this Act, the Court may order that a specified person be detained
in prison for a specified period if it is satisfied, on reasonable grounds:
a. That the person is more likely than not to commit a serious act of violence; and
b. That it is appropriate, for the protection of a particular person or persons or the community
generally, that the person be held in custody
(2) The maximum period to be specified in an order under this section is 6 months
(3) An order under this section may be made against a person:
a. Whether or not the person is in lawful custody, as a detainee or otherwise; and
b. Whether or not there are grounds on which the person may be held in lawful custody otherwise as a
detainee
(4) More than one application may be made in relation to the same person

Appellant’s arguments:
(1) The Act was not truly a “law” within the meaning of s. 5 of the Constitution Act 1902 which
empowers the NSW Parliament to make laws “for the peace, welfare, and good government
of the State in all cases whatsoever”
(2) The Constitution of NSW embodied a separation of powers which required the judicial power
of the State to be separated from its legislative and executive powers
o Considering the nature of the Act, it constituted an exercise of judicial power or an
interference with the judicial process, and hence was invalid
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LAW5004: Principles of Public Law and Statutory Interpretation
 (3) By virtue of Ch III of the Commonwealth Constitution, a State Parliament is precluded from
conferring powers on State courts which “are repugnant to or incompatible with their exercise
of the judicial power of the Commonwealth” – this proposition can be described as the
principle in Kable

High Court Held:

(1) and (2) dismissed by the court
It was argument (3) which found favour with Toohey, Gaudron, McHugh and Gummow JJ. Brennan
CJ and Dawson J dissented in the case. See below.

The Kable principle:

The Kable principle was justified along the following lines. The Commonwealth Constitution, in s.
71, provides for the vesting of federal judicial power in the HCA, in other federal courts as created by
the Commonwealth Parliament and “in such other courts as it invests with federal jurisdiction”.
Furthermore, the Commonwealth parliament is empowered by s. 77(iii) to invest in any State court
with federal jurisdiction

Notes on argument 1:

• ‘peace, order and good government’ are not words of limitation

• High Court interpreted the phrase as resoundingly in support of Parliamentary sovereignty, as
legislation need not necessarily make laws for want of peace, order and good government
• Your answer should focus on explaining the plenary nature of state legislative power., and the
fact that this power is not limited by fundamental common law rights.
o That is: state legislatures can limit fundamental common law rights (even really
important ones like liberty, which was in issue in Kable), provided that they use
sufficiently clear language.
• The words ‘peace, welfare and good government’ are not words of limitation. They confer
plenary power on state legislatures. That is: it is up to the legislature to determine what is
necessary for the good of the state. Not courts.

Seminar notes:

• The problem for Kable lay in presenting an argument that rested on the strict separation of
judicial power; while State courts conferred with federal judicial power are mentioned in s. 71
of the Constitution, such courts are creates of State law, and the NSW Constitution had
already been held not to include a strict separation of judicial power
• The alternative argument, accepted by the HCA, rested on the incompatibility doctrine
previously developed in the persona designate cases
o Kable was able to fashion a requirement of institutional integrity and independence
for State courts mentioned in s. 71, but without applying the strict requirements of the
Boilermakers’ principle
• The reasoning of the Court was based on two factors; the integrated judicial system created
under Ch III with the HCA at its apex; and the notion that State courts invested with federal
jurisdiction must remain suitable repositories of that jurisdiction
• Judicial attention has frequently been focused on the preservation of institutional
independence and impartiality, but has also recently extended to the power of State Supreme
Courts to conduct supervisory review of inferior courts

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LAW5004: Principles of Public Law and Statutory Interpretation
 • As per Forge v ASIC: “The legislation in Kable was held to be repugnant to the institutional
integrity of the SCNSW because of the nature of the task the relevant legislation required the
court to perform”

Ruddock v Vadarlis (2001) 188 ALR 143

Facts:
A Norwegian container ship, the MV Tampa, in response to a request by the Australian Coast Guard,
rescued 433 people from a wooden fishing boat sinking in the Indian Ocean about 140 km north of
Christmas Island (an Australian territory). The vessel started to head towards Indonesia, but upon the
objection of some of the rescuees, some of whom threatened suicide, headed towards Christmas
Island. When the MV Tampa was approximately 13.5 nautical miles off Christmas Island, the
Administrator of Christmas Island, acting on the request of the Australian Cabinet Office, closed the
port at Christmas Island. Departmental officers formally requested the Captain of the MV Tampa not
to enter Australian territorial waters. Two days later, due to mounting concerns that some of the
rescuees were very sick, the Captain took the MV Tampa into Australian territorial waters and
stopped about four nautical miles off Christmas Island. Two hours later, 45 Australian troops boarded
the vessel. The next day, the Norwegian Ambassador went onto the vessel, and received a letter
signed by “Afghan Refugees Now off the coast of Christmas Island”, requesting permission to enter
Australia, and not to be deprived of “rights of refugees according to International Convention (1951)”.
Following unsuccessful attempts to communicate with the rescuees, a solicitor and the Victorian
Council for Civil Liberties Inc filed separate proceedings against the Commonwealth, three of its
Ministers, and a departmental officer seeking, amongst other things, orders in the nature of habeas
corpus. On the first day of proceedings, it was announced that the Australian Government had
arranged for the rescuees to be transferred to New Zealand and Nauru for initial processing and
determination as to whether they were entitled to protection as refugees.

The primary judge held that the rescuees were detained aboard the vessel by the Government's acts,
without lawful authority, and made orders for the release of the rescuees onto the Australian
mainland. The Government respondents appealed.
The Migration Act 1958 (Cth) provided a comprehensive regime which regulated the entry, presence,
departure and deportation of non-citizens. In relation to the rescuees, the Government did not seek to
rely on its detention and removal powers under the Act. The Constitution of the Commonwealth (the
Constitution ), s 61, provided that the Executive power of the Commonwealth was vested in the
Crown and extended to the execution and maintenance of the Constitution and of the laws of the
Commonwealth. It had been recognised that this Executive power included the prerogative powers of
the Crown, and that it could be displaced by statute under the principle of parliamentary sovereignty.

Held (allowing the appeal):

(1) The executive power of the Commonwealth, absent statutory extinguishment or abridgement,
extends to a power to prevent the entry of non-citizens and to do such things as are necessary
to effect exclusion.
(2) There are no words in the Migration Act 1958 (Cth) expressly abrogating the executive
power under the Constitution , s 61, to prevent aliens from entering into Australia.
(3) It is sufficient to ask whether the Migration Act evinces a clear and unambiguous intention to
deprive the Executive of the power to prevent entry into Australian territorial waters of a
vessel carrying non-citizens apparently intending to land on Australian territory, the power to
prevent such a vessel from proceeding further towards Australian territory, and the power to
prevent non-citizens on it from landing upon Australian territory.
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LAW5004: Principles of Public Law and Statutory Interpretation