case_title: Murphy v Young & Co's Brewery plc [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591

case_text: circumstances where financial support for litigation is provided by a spouse the proper starting point may be to regard any such support as motivated by the spouse's natural affection for the litigant, and therefore not such a circumstance where non-party costs should be awarded in the absence of exceptional circumstances (cf Cooper v Maxwell [1992] CA Transcript 273, Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at [1603]-[1604], Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 609). Knight Third, while it is certainly the case that the Court may be receptive to an application for non-party costs against a third party whose conduct has promoted the litigation ( Arundel [2001] HCA 26 ; [2001] 179 ALR 406 at 414) or can be characterised as having been that of wanton and officious intermeddling with the disputes of others in which the meddler has no interest whatsoever ( Murphy v Young & Co's Brewery [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at 1601, Arundel [2001] HCA 26 ; (2001) 179 ALR 406 at 414), there is no evidence of such intermeddling by Mrs Tracy in this case. So, for example, I infer that the regular attendance by Mrs Tracy at the trial was, not unreasonably, to support the second applicant, because the outcome of the trial was important to the second applicant. Further, the comment by Counsel for the applicants during the hearing that he would discuss the issue of an adjournment with "Mr and Mrs Tracy" in my view is not suggestive of meddling by Mrs Tracy in the applicants' case or an active part played by Mrs Tracy in the proceedings. Rather, as submitted by the applicants the comment merely recognised that Mrs Tracy would be present with the second applicant during the discussions, which was both unexceptional and understandable in the circumstances. Fourth, while I note that Mrs Tracy assisted in providing security for costs which the applicants were ordered to pay, I consider that this is explainable by the natural inclination of a wife to support her husband in litigation to which he is a party and does not constitute an active part played by Mrs Tracy in the conduct of the litigation. As has been observed in numerous cases, funding alone will not justify an order where an otherwise disinterested relative has, out of natural affection, funded costs of a claim (Dillon LJ in Cooper v Maxwell [1992] CA Transcript 273 (Stuart-Smith LJ and Mann LJ agreeing); Phillips LJ in Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at 1603-1604, Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 607-608).


case_outcome: cited

case_text: and by analogy with the principles of maintenance and champerty, the courts have also recognised that not only may legitimate financial support in litigation be provided by family members, but that in the event of the failure of the relevant litigation costs will not as a general proposition be awarded against those supporting family members. The rationale for such recognition appears to be that such social or family ties justify the support of the litigation (cf for example Neville v London Express Newspaper Ltd [1919] AC 368). This principle was discussed by the Full Court in Gore (2002) 119 FCR 429, where their Honours in turn referred to the decision of the Court of Appeal in Condliffe v Hislop [1996] 1 WLR 753 and observations of Longmore J in McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366 at 373. That is not to say, of course, that non-party costs will not be awarded against a spouse or other family member should the circumstances warrant for example Thistleton v Hendricks (1992) 32 Con LR 123 , Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39.


case_text: note that the decision in Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 is consistent with decisions in other jurisdictions, including Dymocks Franchise Systems (NSW) v Todd [2004] UKPC 39 ; [2004] 1 WLR 2807 , NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 and UTSA Pty Ltd (In Liquidation) v Ultratune Australia Pty Ltd [1998] VSC 13 ; [1999] 1 VR 204.


case_title: Probiotec Ltd v The University of Melbourne [2008] FCAFC 5 ; (2008) 166 FCR 30

case_text: first and second respondents have made much of their claims concerning an alleged asset protection strategy of Mr and Mrs Tracy, comprising shifting of assets from the second applicant to Mrs Tracy, and security being given to Mrs Tracy. The first and second respondents have pointed to the alleged potential resultant unfairness to the first and second respondents in relation to their ability to recover costs. As matters stand, however, such claims are speculative. As a matter of legal principle such allegations concerning shifting assets would be of much more relevance in the context of claims, for example, pursuant to s 120 or s 121 of the Bankruptcy Act 1966 (Cth) which deal specifically with improper transfers of property and asset protection by persons who subsequently become bankrupt. Obviously however those provisions are not the subject of these proceedings and consideration of principles associated with those provisions have no place in this judgment. While such claims may be relevant in considering the justice of the case, on balance I do not consider that any private financial arrangements of Mr and Mrs Tracy, the reasons for which must be the subject of pure speculation at this stage and upon which I express no opinion, are of particular weight in the context of this notice of motion, viewed in light of the circumstances as a whole and the factors I have already described. Mrs Tracy was not, in my view "a real party" to the litigation in very important and critical respects (contrast Arundel [2001] HCA 26 ; (2001) 179 ALR 406 at 414). While Mrs Tracy may have benefited financially from the success of the applicants as I have already noted, and as has been held in numerous cases (for example Bischof [1992] 2 VR 198 , Vestris (1998) 72 SASR 449 , Probiotec [2008] FCAFC 5 ; (2008) 166 FCR 30) the mere fact that a person may benefit, financially or otherwise, from litigation will not, without more, suffice to justify an award of costs.


case_title: Queensland Trustees Ltd v Commissioner of Stamp Duties (Qld) [1952] HCA 52 ; (1952) 88 CLR 54


case_title: Symphony Group Plc v Hodgson [1993] 3 WLR 830


case_title: Thistleton v Hendricks (1992) 32 Con LR 123


case_title: UTSA Pty Ltd (In Liquidation) v Ultratune Australia Pty Ltd [1998] VSC 13 ; [1999] 1 VR 204


case_title: Vestris v Cashman (1998) 72 SASR 449

case_text: as a general rule costs are not awarded against a stranger to litigation, as I have already indicated it is well-settled that the Court has a discretion pursuant to s 43 of the Federal Court Act to order costs against a non-party in appropriate circumstances ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 , Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 , Gore v Justice Corp Pty Ltd (2002) 119 FCR 429, Kebaro Pty Ltd v Saunders [2003] FCAFC 5 , Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 ; (2008) 170 FCR 595). The exercise of such discretion is approached with caution indeed it has been described as "rare and exceptional" ( Vestris v Cashman (1998) 72 SASR 449 at 467, Kebaro [2003] FCAFC 5 at [103] ) and depends on the circumstances of each case as it is a "fact-specific jurisdiction" ( Kebaro [2003] FCAFC 5 at [69] ). Principles guiding the approach of the Court to the exercise of the include the following: Finally, in relation to the factor articulated by Lander J in Vestris v Cashman (1998) 72 SASR 449 concerning whether Mrs Tracy could have been joined as a party earlier in the proceedings I note that, in fact, the first and second respondents had earlier claimed that Mrs Tracy's company Janling Pty Ltd had no place in these proceedings. It seems somewhat odd to now claim that Mrs Tracy should bear the costs of the unsuccessful claims of the applicants. The first and second respondents have made much of their claims concerning an alleged asset protection strategy of Mr and Mrs Tracy, comprising shifting of assets from the second applicant to Mrs Tracy, and security being given to Mrs Tracy. The first and second respondents have pointed to the alleged potential resultant unfairness to the first and second respondents in relation to their ability to recover costs. As matters stand, however, such claims are speculative. As a matter of legal principle such allegations concerning shifting assets would be of much more relevance in the context of claims, for example, pursuant to s 120 or s 121 of the Bankruptcy Act 1966 (Cth) which deal specifically with improper transfers of property and asset protection by persons who subsequently become bankrupt. Obviously however those provisions are not the subject of these proceedings and consideration of principles associated with those provisions have no place in this judgment. While such claims may be relevant in considering the justice of the case, on balance I do not consider that any private financial arrangements of Mr and Mrs Tracy, the reasons for which must be the subject of pure speculation at this stage and upon which I express no opinion, are of particular weight in the context of this notice of motion, viewed in light of the circumstances as a whole and the factors I have already described. Mrs Tracy was not, in my view "a real party" to the litigation in very important and critical respects (contrast Arundel [2001] HCA 26 ; (2001) 179 ALR 406 at 414). While Mrs Tracy may have benefited financially from the success of the applicants as I have already noted, and as has been held in numerous cases (for example Bischof [1992] 2 VR 198 , Vestris (1998) 72 SASR 449 , Probiotec [2008] FCAFC 5 ; (2008) 166 FCR 30) the mere fact that a person may benefit, financially or otherwise, from litigation will not, without more, suffice to justify an award of costs.


case_title: Yates v Boland [2000] FCA 1895

case_text: cannot be correct that the circumstances described in Knight [1992] HCA 28 ; (1992) 174 CLR 178 constitute necessary pre-conditions to the exercise of the Court's discretion to award non-party costs pursuant to s 43 as submitted by the applicants. While obviously the comments of Mason CJ and Deane J would be an appropriate guide to the exercise of discretion in an appropriate case, they were clearly obiter (see observations of the Full Court in Yates v Boland [2000] FCA 1895). As the exercise of the discretion in s 43 is unfettered, other than the requirement that it be exercised judicially ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 at [192] ; Gore (2002) 119 FCR 429 at 447-448), it follows that the comments in Knight [1992] HCA 28 ; (1992) 174 CLR 178 could not prescribe prerequisites to the exercise of discretion to award costs against a non-party. Inevitably, as the Full Court pointed out in Gore (2002) 119 FCR 429 at 437: ...there is no reason to suppose that the remarks of the members of the High Court in Knight have closed the door to the categories of third parties who may be made liable for the costs of litigation nor that the circumstances that were identified by their Honours were exhaustive. ... and later ...the learned trial judge erred when he regarded the passage in Knight as laying down three principles, each of which must be present before a stranger to the litigation could be made liable for costs. (at 451)


case_outcome: discussed

case_text: Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025). It therefore remains only to consider whether it would be "appropriate" to make the orders sought. The discretion conferred by s 87A is in substance the same as that which applies in the exercise of the Court's discretion under s 87 and must, of course, be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act (see Brown at [22]). The matters to be taken into account in the exercise of the discretion, and the weight to be given to those matters, may vary according to the particular circumstances of each case. Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Brown at [23] in respect of s 87A and Hughes at [9] in respect of s 87).


case_text: Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025). Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Brown at [23] in respect of s 87A and Hughes at [9] in respect of s 87).


case_text: Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025). If, of course, an agreement were reached where there was nothing to support the claimed connection of the applicants to their country, or the determination appeared to be unfair or unjust, the Court might conclude that a determination would be inappropriate and decline to make the orders sought ( James at [4]). That is not the case here. In the present case, the applicants, the State and the Martu People have had independent legal advice and although the Shire of Derby/West Kimberley has not been legally represented, the Shire Planner has requested that access rights for the Shire's employees and agents to the Determination Area be recognised, particularly as regards access to upgrade the roads and infrastructure of the Kurlku and Purlawarla communities. These rights have been specifically recognised as "other interests" in Schedule 4 to the Minute.


case_outcome: referred to

case_text: preference of settling matters as opposed to litigating them has been recognised as a desirable public objective by the High Court and this Court on numerous occasions and its is always heartening when native title claims are settled by agreement rather than through litigation. As the Chief Justice said in Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 , at [8]: 'The courts have always encouraged parties to settle their claims amicably'. Agreement is especially desirable in native title cases due to the importance, complexity and sensitivity of the issues involved. Agreement between the parties minimises cost and distress and establishes goodwill between the parties for future dealings: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595.


case_text: Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025). The State has taken an active and significant part in the negotiation of the consent determination. This was said by Emmett J to be an important factor: Munn at [29]. The State has had regard to the requirements of the Act and applied a rigorous and detailed assessment process. It has satisfied itself that the consent determination is justified in all the circumstance. There is no suggestion that the agreement was not freely made. The agreed terms of the proposed orders are unambiguous and are appropriate in the circumstances. The continuous connection of the Ngurrara people with Determination Area A is acknowledged by all parties. There is also evidence to support that connection. The Ngurrara Native Title Claim WC96/32 Supplementary Consent Determination Report dated January 2006 by Daniel Aime Vachon (amended in October 2007) ("the Report") describes the enduring connection of the native title claimant group to their country within the claim area and, on the basis of the material contained in the Report, supports their claim to a native title right to possession, occupation, use and enjoyment of Determination Area A to the exclusion of all others.


case_text: Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025).


case_title: Nangkiriny v Western Australia [2004] FCA 1156


case_title: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595


case_text: North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Brown at [23] in respect of s 87A and Hughes at [9] in respect of s 87).


case_text: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 (" Applicant A "), a husband and wife, who were nationals of China, arrived in Australia and shortly thereafter the wife gave birth to a son. They claimed refugee status by virtue of the fact that they were the parents of one child and did not accept China's one child policy, which included, if necessary, enforcement by sterilisation. They claimed that they had a well-founded fear of persecution if returned to China. By a majority of 3:2, the High Court decided that they were not entitled to refugee status. Dawson J said that a particular social group for the purposes of the definition of refugee could not be defined by the persecution the members of the group feared. His Honour considered the meaning of the term "particular social group" and said (at 241): "A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society." (Citation omitted.) His Honour considered the relationship between the concept of a particular social group and a policy applied generally and said (at 243): "Rather, the persecution is carried out in the enforcement of a policy which applies generally. The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms. The only recognisable group to which they can sensibly be said to belong is the group comprising those who fear persecution pursuant to the one child policy. For the reasons I have given, that cannot be regarded as a particular social group for the purposes of the Convention." McHugh J discussed the concept of persecution and the circumstances in which conduct or action under a general law or a law of general application may constitute persecution. His Honour said (at 258-259): "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race. However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution." (Citations omitted.) His Honour made the point (at 264) that, although persecutory conduct cannot define a social group, conduct of the persecutors may over time (perhaps over a short period of time) create a particular social group. Gummow J's reasons were to the same effect as those of McHugh J. His Honour said (at 286): "With McHugh J, I conclude that the RRT made a finding that the relevant group comprised 'those who, having only one child, either do not accept the limitations placed on them or who are coerced or forced into being sterilised'. As to those who are so coerced or forced, the RRT erred in law by defining membership of the group by reference to acts giving rise to the well-founded fear of persecution. As to those persons having one child who 'do not accept the limitations placed upon them', they were, at best, merely a group for demographic purposes." In Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 (" Chen "), the High Court held that an applicant born in breach of China's one child policy who contended that he was a member of a social group called "black children", and who contended that he would suffer legal, social and economic disadvantages if returned to China, could form part of a particular social group for the purposes of the definition of a refugee. Gleeson CJ, Gaudron, Gummow and Hayne JJ delivered joint reasons ("joint reasons") and their Honours made the point (at 301 [19]) that the fact that there is said to be a law of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group. As to the latter question, their Honours said in the joint reasons: "The question whether 'black children' can constitute a social group for the purposes of the Convention arises in a context quite different from that involved in Applicant A . That case was concerned with persons who feared the imposition of sanctions upon them in the event that they contravened China's 'one-child policy'. In this case, the question is whether children, who did not contravene that policy but were born in contravention of it, can constitute a group of that kind. To put the matter in that way indicates that the group constituted by children born in those circumstances is defined other than by reference to the discriminatory treatment or persecution that they fear. And so much was recognised by the Tribunal in its finding that a 'child is a "black child" irrespective of what persecution may or may not befall him or her'." In Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387 (" Applicant S "), the High Court held that a young Afghan man who had a well-founded fear of being forcibly conscripted to fight for the Taliban could fall within the definition of a refugee. It was not necessary that society perceive young able-bodied men as comprising a particular social group in order to conclude that they were a particular social group within the definition of a refugee. It is sufficient if they are cognisable within the community as a particular social group. Such conclusions are clearly objective, although, that is not to say that subjective perceptions within the community may not be relevant. Gleeson CJ, Gummow and Kirby JJ said (at 400-401 [36]): "Therefore, the determination of whether a group falls within the definition of 'particular social group' in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A , a group that fulfils the first two propositions, but not the third, is merely a 'social group' and not a 'particular social group'. As this Court has repeatedly emphasised, identifying accurately the 'particular social group' alleged is vital for the accurate application of the applicable law to the case in hand." (Citations omitted.) The Court rejected a submission that there can only be persecution if enmity or malignity is present (at 401 [38]). The Court also addressed a submission that there was no persecution where the foreseeable risk of harm arose from the application of a law of general application. Gleeson CJ, Gummow and Kirby JJ said (at 402-403 [42]-[44]): "A law of general application is capable of being implemented or enforced in a discriminatory manner. The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A . His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is 'appropriate and adapted to achieving some legitimate object of the country [concerned]'. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen . As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court's decision in Israelian . Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective. In Applicant A , McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory. (Citations omitted.) Notwithstanding these principles, it is not necessarily an error for the Tribunal not to begin with (or even to deal with) the question of whether there is a particular social group. The relevant part of the definition of refugee consists of a number of elements and, although they each form part of a compound conception (see Applicant A at 242 per Dawson J; at 256 per McHugh J; Chen at 299 per Gleeson CJ, Gaudron, Gummow and Hayne JJ), failure to comply with one is sufficient to defeat the claim. If the serious harm results from the application of a law of general application and there is no discrimination and therefore no persecution, the claim must fail: Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 ; (2001) 206 CLR 323 at 354-355 [93] - [97] per McHugh, Gummow and Hayne JJ.


case_text: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387 (" Applicant S "), the High Court held that a young Afghan man who had a well-founded fear of being forcibly conscripted to fight for the Taliban could fall within the definition of a refugee. It was not necessary that society perceive young able-bodied men as comprising a particular social group in order to conclude that they were a particular social group within the definition of a refugee. It is sufficient if they are cognisable within the community as a particular social group. Such conclusions are clearly objective, although, that is not to say that subjective perceptions within the community may not be relevant. Gleeson CJ, Gummow and Kirby JJ said (at 400-401 [36]): "Therefore, the determination of whether a group falls within the definition of 'particular social group' in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A , a group that fulfils the first two propositions, but not the third, is merely a 'social group' and not a 'particular social group'. As this Court has repeatedly emphasised, identifying accurately the 'particular social group' alleged is vital for the accurate application of the applicable law to the case in hand." (Citations omitted.) The Court rejected a submission that there can only be persecution if enmity or malignity is present (at 401 [38]). The Court also addressed a submission that there was no persecution where the foreseeable risk of harm arose from the application of a law of general application. Gleeson CJ, Gummow and Kirby JJ said (at 402-403 [42]-[44]): "A law of general application is capable of being implemented or enforced in a discriminatory manner. The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A . His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is 'appropriate and adapted to achieving some legitimate object of the country [concerned]'. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen . As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court's decision in Israelian . Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective. In Applicant A , McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory. (Citations omitted.)


case_text: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 (" Chen "), the High Court held that an applicant born in breach of China's one child policy who contended that he was a member of a social group called "black children", and who contended that he would suffer legal, social and economic disadvantages if returned to China, could form part of a particular social group for the purposes of the definition of a refugee. Gleeson CJ, Gaudron, Gummow and Hayne JJ delivered joint reasons ("joint reasons") and their Honours made the point (at 301 [19]) that the fact that there is said to be a law of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group. As to the latter question, their Honours said in the joint reasons: "The question whether 'black children' can constitute a social group for the purposes of the Convention arises in a context quite different from that involved in Applicant A . That case was concerned with persons who feared the imposition of sanctions upon them in the event that they contravened China's 'one-child policy'. In this case, the question is whether children, who did not contravene that policy but were born in contravention of it, can constitute a group of that kind. To put the matter in that way indicates that the group constituted by children born in those circumstances is defined other than by reference to the discriminatory treatment or persecution that they fear. And so much was recognised by the Tribunal in its finding that a 'child is a "black child" irrespective of what persecution may or may not befall him or her'." In Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387 (" Applicant S "), the High Court held that a young Afghan man who had a well-founded fear of being forcibly conscripted to fight for the Taliban could fall within the definition of a refugee. It was not necessary that society perceive young able-bodied men as comprising a particular social group in order to conclude that they were a particular social group within the definition of a refugee. It is sufficient if they are cognisable within the community as a particular social group. Such conclusions are clearly objective, although, that is not to say that subjective perceptions within the community may not be relevant. Gleeson CJ, Gummow and Kirby JJ said (at 400-401 [36]): "Therefore, the determination of whether a group falls within the definition of 'particular social group' in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A , a group that fulfils the first two propositions, but not the third, is merely a 'social group' and not a 'particular social group'. As this Court has repeatedly emphasised, identifying accurately the 'particular social group' alleged is vital for the accurate application of the applicable law to the case in hand." (Citations omitted.) The Court rejected a submission that there can only be persecution if enmity or malignity is present (at 401 [38]). The Court also addressed a submission that there was no persecution where the foreseeable risk of harm arose from the application of a law of general application. Gleeson CJ, Gummow and Kirby JJ said (at 402-403 [42]-[44]): "A law of general application is capable of being implemented or enforced in a discriminatory manner. The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A . His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is 'appropriate and adapted to achieving some legitimate object of the country [concerned]'. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen . As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court's decision in Israelian . Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective. In Applicant A , McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory. (Citations omitted.) The Court concluded that, by the application of the correct principles, the Tribunal correctly would have concluded the Taliban was not pursuing a "legitimate national objective" spoken of in Chen because, by international standards, the Taliban was a ruthless and despotic political body, founded on extremist religious tenets, and this affected the legitimacy of the object of protecting the nation. In any event, even if the object was a legitimate national objective, it was not appropriate and adapted (in the sense of being proportionate) in the means used to achieve that objective because the policy of conscription was implemented in a random and arbitrary manner (see at 404 [47]-[49]). As far as the question of whether the parents' claim was foreclosed by a finding that any harm resulted from no more than the application of laws of general application, his Honour referred to evidence that the one child laws did operate or impact in a discriminatory way on certain groups, and that, on a remitter, the Tribunal would be required to consider whether there was a real chance of that occurring in relation to the applicant parents. Independently of that point, the Tribunal would be required to consider whether China's general family planning laws were appropriately adapted to meet the varying situations of parents who have more than one child. After quoting a passage from the reasons of Gleeson CJ, Gummow and Kirby JJ in Applicant S , Merkel J said (at 347 [41]): "The RRT did not enquire whether the harm feared by the applicant parents was appropriate and adapted to achieving the legitimate object of population control. That issue is to be determined by reference to 'the standards of civil societies which seek to meet the calls of common humanity': see Chen at CLR 303; ALR 560 ; ALD 328 [29]. As was explained in Chen , visiting the 'sins' (if they be that) of the parents on the child can be persecutory of the child. Similarly, there are many instances where the view may be taken that the birth of a second child may not have come about as a result of any 'sin' on the part of the mother. The birth of twins, or a child born as a result of a rape, or even failed contraception, are examples. A law of general application mandating the imposition of severe penalties on the mother irrespective of her personal circumstances may be regarded as a measure that, according to the standards of civil societies, is not appropriately adapted to achieving a legitimate object." In the ordinary case, the Tribunal must consider the applicant's case by reference to the particular social group articulated by him or her. The Tribunal had failed to decide the first question; it, in fact, had decided another question. Accordingly, it had failed to exercise jurisdiction. (See also at 1101; 407 [89] per Kirby J; at 1102; 408 [95] per Hayne J; Gleeson CJ dissented, but on the ground that, in fact, the Tribunal had not misunderstood the applicant's case.) Notwithstanding these principles, it is not necessarily an error for the Tribunal not to begin with (or even to deal with) the question of whether there is a particular social group. The relevant part of the definition of refugee consists of a number of elements and, although they each form part of a compound conception (see Applicant A at 242 per Dawson J; at 256 per McHugh J; Chen at 299 per Gleeson CJ, Gaudron, Gummow and Hayne JJ), failure to comply with one is sufficient to defeat the claim. If the serious harm results from the application of a law of general application and there is no discrimination and therefore no persecution, the claim must fail: Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 ; (2001) 206 CLR 323 at 354-355 [93] - [97] per McHugh, Gummow and Hayne JJ.


case_text: decision-maker who makes a finding of ultimate fact for which there is no evidence commits an error of law: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; (1975) 132 CLR 473. Not all errors of law are jurisdictional errors and therefore outside the reach of the privative clause in s 474(1) of the Migration Act : Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 ; 190 ALR 601. An error constituted by making a finding of fact for which there is no evidence could indicate that the decision-maker applied the wrong legal test, or failed to apply the correct legal test, or took into account irrelevant considerations or failed to take into account relevant considerations and, in those circumstances, the error would constitute a jurisdictional error: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176-180; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.


case_text: an applicant claims a well-founded fear of persecution because of membership of a particular social group then, in the ordinary case, the first question is whether the alleged group is a particular social group within the definition. That question involves, at least in part, a question of law. The next question is one of fact and it is whether the applicant is a member of the group. The questions thereafter are whether the applicant has a fear of persecution, whether that fear is well-founded and whether it is for a Convention reason (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 ; 197 ALR 389 (" Dranichnikov ") at 1092; 394 [26] per Gummow and Callinan JJ (with whom Hayne J agreed)). Particular problems have arisen in cases where the applicant claims that he or she is a member of a particular social group and fears serious harm, but the claim is made that there is no pre-existing social group and that the serious harm claimed arises from the application of a law of general application. I was taken in some detail to three decisions of the High Court and one decision of a single judge of this Court, and it is to those decisions that I now turn. In Dranichnikov , the appellant claimed that he had a well-founded fear of persecution for reasons of membership of a particular social group, being Russian businessmen who publicly criticised law enforcement authorities for failing to take action against crimes or criminals. The appellant submitted that the Tribunal erred because it failed to consider his claim to refugee status by reference to that particular social group and only considered it by reference to the group of Russian businessmen. The appellant sought from the High Court special leave to appeal and relief under s 75(v) of the Constitution . The Court granted leave and relief under s 75(v). Gummow and Callinan JJ (with whom Hayne J agreed) considered that a failure by the Tribunal to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice to the appellant (which was not a statutory ground of judicial review by reason of the then provisions of the Migration Act ) and was a constructive failure to exercise jurisdiction. As cited above, their Honours said (at 1092; 394 [26]): "At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason." (Citation omitted.)


case_text: Full Court of this Court has held that a similar result may follow where the Tribunal fails to consider a claim put forward in the material before the Tribunal, even though the claim is not expressly articulated in the oral submissions and evidence at the hearing: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 at 248 [13] - [14] per Merkel J; at 259 [41]-[42] per Allsop J; at 245 [1] per Spender J. The Full Court of this Court has also emphasised that, for the principle to be engaged, the claim must be one which emerges clearly from the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 22 [68] .


case_text: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387 (" Applicant S "), the High Court held that a young Afghan man who had a well-founded fear of being forcibly conscripted to fight for the Taliban could fall within the definition of a refugee. It was not necessary that society perceive young able-bodied men as comprising a particular social group in order to conclude that they were a particular social group within the definition of a refugee. It is sufficient if they are cognisable within the community as a particular social group. Such conclusions are clearly objective, although, that is not to say that subjective perceptions within the community may not be relevant. Gleeson CJ, Gummow and Kirby JJ said (at 400-401 [36]): "Therefore, the determination of whether a group falls within the definition of 'particular social group' in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A , a group that fulfils the first two propositions, but not the third, is merely a 'social group' and not a 'particular social group'. As this Court has repeatedly emphasised, identifying accurately the 'particular social group' alleged is vital for the accurate application of the applicable law to the case in hand." (Citations omitted.) The Court rejected a submission that there can only be persecution if enmity or malignity is present (at 401 [38]). The Court also addressed a submission that there was no persecution where the foreseeable risk of harm arose from the application of a law of general application. Gleeson CJ, Gummow and Kirby JJ said (at 402-403 [42]-[44]): "A law of general application is capable of being implemented or enforced in a discriminatory manner. The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A . His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is 'appropriate and adapted to achieving some legitimate object of the country [concerned]'. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen . As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court's decision in Israelian . Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective. In Applicant A , McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory. (Citations omitted.) Notwithstanding these principles, it is not necessarily an error for the Tribunal not to begin with (or even to deal with) the question of whether there is a particular social group. The relevant part of the definition of refugee consists of a number of elements and, although they each form part of a compound conception (see Applicant A at 242 per Dawson J; at 256 per McHugh J; Chen at 299 per Gleeson CJ, Gaudron, Gummow and Hayne JJ), failure to comply with one is sufficient to defeat the claim. If the serious harm results from the application of a law of general application and there is no discrimination and therefore no persecution, the claim must fail: Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 ; (2001) 206 CLR 323 at 354-355 [93] - [97] per McHugh, Gummow and Hayne JJ.


case_title: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 ; 190 ALR 601


case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1


case_title: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476


case_text: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 (" SFGB "), the Full Court of this Court suggested that an error consisting of the making of a finding of fact for which there is no evidence may well constitute a jurisdictional error, even if it cannot also be concluded that the decision-maker applied an incorrect test or failed to apply the correct test or took into account irrelevant considerations or failed to take into account relevant considerations. The Court said (at 407 [19]-[20]): "This argument, if it were made out, would be sufficient to establish that the tribunal had made a 'jurisdictional error' so as to found jurisdiction in this court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355 7 [1990] HCA 33 ; ; 94 ALR 11 at 37 8 [1990] HCA 33 ; ; 21 ALD 1 at 23 4. If the decision of the tribunal was ' Wednesbury ' unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 62, 67, 76, 90 91 [2003] HCA 30 ; ; 73 ALD 1 at 4, 8 9, 18, 31 3. ( S20 ). On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a "jurisdictional fact", there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 6; 93 ALR 1 at 24 5." The first respondent submitted that the principle identified in [53] above is inconsistent with the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 77 ALJR 1165 ; 198 ALR 59. I have examined that decision carefully and I do not think there is anything in the decision which is inconsistent with the principle identified by the Full Court. Leaving aside the question of whether, sitting as a single judge exercising the appellate jurisdiction of this Court, I could or should decline to follow a decision of the Full Court, I am not persuaded that the decision is clearly wrong and I think I should follow the principle identified by the Full Court. Issues on the appeal In this case, the appellant through her solicitors made a written submission to the Tribunal that she is a member of a particular group of people, namely, Chinese parents of black children and that the punishments she has suffered and might suffer are not appropriate and adapted to achieving a legitimate end. The appellant submitted that her breach of the one child policy had not come about as the result of any "sin" on her part, bearing in mind the pressures imposed by Chinese society to bear a male child. She submitted that she suffers and continues to suffer serious psychological harm as a result of the persecution of her black child. In this case, the Tribunal did not approach the matter by determining whether there was a particular social group of the type identified by the appellant, or, indeed, any other particular social group which might be reasonably arguable on the facts. The Tribunal approached the matter by considering whether the serious harm which the appellant feared, and which the Tribunal found, arose, or resulted from, the application of a law of general application. As I have said (at [50]), that is not necessarily an error. However, the appellant submitted that the Tribunal made an error in determining that an order requiring a sterilisation operation arose, or resulted from, the application of a law of general application. That submission is correct. I accept the first respondent's submission that there are limitations on the Tribunal's ability to determine with precision the provisions of China's family planning laws and that there would be a temptation to think, as the order that the appellant undergo a sterilisation operation followed "hard on the heels" of the termination of the appellant's third pregnancy, therefore it was part of a law of general application. However, when regard is had to the evidence the Tribunal referred to in relation to this question, it seems to me that there was no evidence that sterilisation was part of a law of general application. In fact, the evidence was to the contrary. In determining the parameters of China's population policy, the Tribunal relied on evidence from various sources. It referred to the one child policy launched by the Chinese Government in 1979. It referred to the fact that there is no national legislation, and family planning policy is left to provinces and municipalities to implement, and each province has drafted its own regulations in support of the policy. The Tribunal noted sources indicating that family planning policy varied widely across China and that penalties for contravening the one child policy can also vary across regions. The Tribunal noted a source suggesting that, in general, Fujian had one of the least coercive family planning regimes in China and that "some local governments enforce family planning rules more vigorously than others". This has created "a patchwork of different rules and enforcement across the province". In dealing with coercive measures, the Tribunal referred to the following: (1) A statement by the United States of America Department of State in 1999; (2) A Canadian report dated 2000; (3) Reports prepared by the Department of Foreign Affairs and Trade in 2004; (4) A news article, another Canadian report and other reports of the Department of Foreign Affairs and Trade. These sources suggested that government policy forbade forced sterilisations, although they occurred from time to time. They tended to result from the actions of overzealous officials and they were becoming rarer.


case_outcome: followed

case_title: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402

case_text: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 (" SFGB "), the Full Court of this Court suggested that an error consisting of the making of a finding of fact for which there is no evidence may well constitute a jurisdictional error, even if it cannot also be concluded that the decision-maker applied an incorrect test or failed to apply the correct test or took into account irrelevant considerations or failed to take into account relevant considerations. The Court said (at 407 [19]-[20]): "This argument, if it were made out, would be sufficient to establish that the tribunal had made a 'jurisdictional error' so as to found jurisdiction in this court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355 7 [1990] HCA 33 ; ; 94 ALR 11 at 37 8 [1990] HCA 33 ; ; 21 ALD 1 at 23 4. If the decision of the tribunal was ' Wednesbury ' unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 62, 67, 76, 90 91 [2003] HCA 30 ; ; 73 ALD 1 at 4, 8 9, 18, 31 3. ( S20 ). On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a "jurisdictional fact", there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 6; 93 ALR 1 at 24 5." It seems to me that the finding that sterilisation was part of a penalty for the contravention of a law of general application was in error and the error was that there was no evidence to support the finding. The error was an error of law and, following the Full Court's decision in SFGB , a jurisdictional error. The finding was a critical step in the Tribunal's ultimate conclusion. It seems to me that it would be open to the Tribunal to conclude that the appellant belonged to a particular social group, being those women who became pregnant in contravention of China's family planning laws and who have been required to have that pregnancy terminated. The Tribunal found the appellant had a well-founded fear of serious harm (that is, forced sterilisation) and it seems to me that it would be open to it to conclude that the harm was for reasons of her membership of the social group and not for the reason of the application of a law of general application. In those circumstances, the appeal must be allowed and the matter remitted to the Tribunal. Conclusion The orders of the Court are as follows: 1. The appeal be allowed. The orders of the Federal Magistrates Court made on 21 February 2008 be set aside and in lieu of those orders there be orders that: (a) a writ of certiorari issue quashing the decision of the Refugee Review Tribunal handed down on 26 October 2006 (RRT Case Number 060341569); and (b) a writ of mandamus issue directed to the Refugee Review Tribunal requiring it to hear and determine the appellant's application for review according to law.


case_title: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473


case_title: SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1

case_text: principle which I have identified by reference to the reasons of the Full Court has been applied by single judges of this Court: see, for example, SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 ; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 ; SZKMX v Minister for Immigration and Citizenship [2008] FCA 856.


case_title: SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824


case_title: SZKMX v Minister for Immigration and Citizenship [2008] FCA 856


case_title: VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332

case_text: appellant in the present case relied heavily on the decision of Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 ; (2004) 81 ALD 332 , and it is necessary to consider that decision. There were three applicants for protection visas in that case: a Chinese couple and their third child, who was born in Australia. The applicants claimed a well-founded fear of persecution as a result of the contravention of China's one child policy. The harm feared by the parents was forced sterilisation of the applicant mother, a substantial financial penalty which they could not pay and limitations on employment opportunities. In the case of the child, the fear was that, as a black child, he would face significant discrimination and disadvantage. For present purposes, it is necessary to discuss the reasons only in so far as they deal with the claim of the applicant parents. The Tribunal found that the parents were not members of a particular social group because the harm suffered or feared was the sole defining characteristic of the group. It found that the child was a member of a social group, but that he would not suffer persecution as a black child. It found that China's family planning laws were not discriminatory because they applied to all citizens equally, and are directed at a legitimate purpose, namely, limiting population growth. It further found that the financial burden on the parents was serious, but was not persecution within the Convention or s 91R of the Act. Merkel J held that, as far as the parents' claim was concerned, the Tribunal had committed a jurisdictional error. It had failed to consider the correct question in determining whether the parents were members of a particular social group. The correct test was (at 345 [32]): "...whether, over time, the singling out of parents of 'black children' for discriminatory treatment under China's family planning laws might have been absorbed into the social consciousness of the community with the consequence that a combination of legal and social factors (or norms) prevalent in the community indicated that such parents form a social group distinguishable from the rest of the community: cf Applicant S at ALR 251; ALD 550 [31]."


case_outcome: affirmed

case_text: This is an appeal from a judgment of O'Dwyer FM dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"): MZWMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 513. By that decision, the Tribunal affirmed the decision of a delegate of the respondent Minister refusing to grant the appellant a class XA protection visa. 2 The appellant, a national of India, is Muslim. He arrived in Australia on 13 September 2003 on a travel visa issued in Delhi. On 8 October 2003, he applied for a protection visa. A criterion for the grant of a protection visa, pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act "), is that the person bringing the application is a non-citizen of Australia to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees as amended. Article 1A(2) of the Convention provides that a refugee is a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 3 The appellant's claims in support of his application for a protection visa were somewhat vague. He claimed to have been a member of the "Muslim League" living in the Coimbatore district of Tamil Nadu, a southern state of India. He said that both his father and his brother had been heavily involved in Muslim politics. In November 1997, his father and mother were killed during religious rioting in the district. Fearing for his life, he moved to the Chennai district. He established a clothing business there. He maintained his involvement with the Muslim League. He claimed that he donated money, was involved in political rallies and that he sought to recruit new party members. He claimed that political opponents became aware of his activities and that he was threatened and "physically attacked" by these people. Nonetheless, he continued his active involvement with the Muslim League. He supported the party financially, and this may have led to a further attack upon him by his political opponents. However, he was spared any serious physical injury because of the presence, on this occasion, of a number of Muslim supporters.


case_text: The Tribunal referred to several cases in support of these propositions. These included Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559, Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 . The Tribunal did not err in relying upon these cases, or in its formulation of the relevant legal principles. Moreover, the appellant's contention must fail by reason of the principles stated by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] [24].


case_title: Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191


case_title: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73


case_text: The evidence establishes a case for the making of both orders and they should be made. An order extending the convening period, without more, would leave s 439A(2) requiring that the meeting be held within the period of five business days following the expiry of the extending convening period, and no earlier: cf Re Daisytek Australia Pty Ltd (administrators appointed) (2003) 45 ACSR 446 at [10] [14]. An order should be made, or sought, under s 447A permitting the meeting to be held during the extended convening period or within the said period of five business days thereafter. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 28 July 2006 Counsel for the Plaintiffs: Mr P M Wood Solicitor for the Plaintiffs: Blake Dawson Waldron Date of Hearing: 19, 20 July 2006 Date of Judgment: 20 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/958.html


case_text: 28 September 2009, the Court ordered that a meeting of shareholders be convened for the purpose of considering a proposed scheme of arrangement. Directions were also given for the conduct of that meeting and the Court approved under s 411(1) of the Act the explanatory statement to be sent to members pursuant to s 412(1) of the Act: Re Felix Resources Limited [2009] FCA 1182. On 11 November 2009, the Court made further orders approving a supplementary explanatory memorandum to be sent to shareholders and gave directions for dispatching the memorandum to members: Re Felix Resources Limited (No. 2) [2009] FCA 1337.


case_title: Re Felix Resources Limited (No. 2) [2009] FCA 1337


case_title: Re Amcor Ltd (2000) 34 ACSR 199

case_text: have considered all of the material filed in support of the application. I am satisfied that the scheme of arrangement ought to be approved by the Court. The jurisdiction conferred by s 411 of the Act involves the exercise of the supervisory jurisdiction of the Court. The role of the Court is to determine whether in the face of all the material, there is any basis for apprehension that the members were oppressed in relation to the exercise of their vote; and whether members were sufficiently enabled by the material put before them, to be capable of reaching an informed decision about whether acceptance of the proposal was in their best interests. Fundamentally, the question of whether the proposal ought to be accepted is a matter for the meeting. It is not for the Court to substitute its own view of the merits of the vote, for that of the meeting. If, of course, the meeting reaches a conclusion which seems inconsistent with an objective assessment of the merits of the proposal based on the material put before the meeting, the Court will look closely at the outcome and seek to be satisfied about any matter that might seem to the Court counter-intuitive. Even so, the will of the meeting is paramount subject to the supervision of the Court. If the material clearly explains the proposal and it is capable of acceptance by individuals exercising their best judgment of what is in their own commercial interests or to their own commercial advantage, the Court ought not to withhold approval of the scheme. In the case of a meeting of a single class of members, the Court would need to be satisfied that the vote and thus the will of the meeting had miscarried before withholding approval: Re Amcor Ltd (2000) 34 ACSR 199 at [33]; Re Sonodyne International Ltd (1994) 15 ACSR 494 at 499; Re Hudson Conway Ltd (2000) 33 ACSR 657; Re Coles Group Ltd (No 2) (2007) 65 ACSR 494; Re NRMA Ltd; Re NRMA Insurance Ltd (2000) 33 ACSR 595.


case_title: Re Sonodyne International Ltd (1994) 15 ACSR 494


case_title: Re Hudson Conway Ltd (2000) 33 ACSR 657


case_title: Re Coles Group Ltd (No 2) (2007) 65 ACSR 494


case_title: Re NRMA Ltd; Re NRMA Insurance Ltd (2000) 33 ACSR 595


case_text: also seeks an order relieving it from the requirement contained in s 411(11) that a copy of an order of the Court made under s 411(4)(b) be annexed to every copy of the Constitution of Felix issued after the making of the order. There seems to be no utility in the order. The proposed order does not affect any change to the Constitution of the company. Accordingly, there is no need to insist upon compliance by Felix with s 411(11) of the Act: Re Equinox Resources Ltd (2004) 49 ACSR 692 at [22] and [23]; Re Kalgoorlie Lake View Pty Ltd (2005) 56 ACSR 144 at [30] - [32]; and Mincom Ltd v EAM Software Finance Pty Ltd (No 3) (2007) 64 ACSR 387 at 409.


case_title: Re Kalgoorlie Lake View Pty Ltd (2005) 56 ACSR 144


case_title: Mincom Ltd v EAM Software Finance Pty Ltd (No 3) (2007) 64 ACSR 387


case_text: The express reference to binding the Crown means that the Court is concerned with a different question from that which arose in Bropho v Western Australia [1990] HCA 24 ; (1990) 171 CLR 1 and Jacobsen v Rogers [1995] HCA 6 ; (1995) 182 CLR 572 where the statutes did not in terms mention the Crown. Nevertheless it is to be noted that in Jacobsen at 585 their Honours said that in Bropho the Court "denied the stringency and inflexibility" of the presumption that the Crown is not bound by a statute and affirmed that "it must be the legislative intention which ultimately prevails". This perhaps less deferential approach was, at least in part, based on the recognition of the "multifarious functions" which the Crown carries out in modern times (at 587).


case_title: Jacobsen v Rogers [1995] HCA 6 ; (1995) 182 CLR 572


case_text: The context in which the present question arises includes two important elements. First, the Anti-Discrimination Act is beneficial legislation and ought to be given a generous and liberal construction: IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1 at 12; Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 359, 394; Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 at 189.


case_title: Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 359, 394


case_title: Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 at 189


case_title: Re Residential Tenancies Tribunal of New South Wales; Ex parte the Defence Housing Authority [1997] HCA 36 ; (1997) 190 CLR 410

case_text: Secondly, subject to s 109 of the Constitution and the impairment of capacities doctrine, in the words of Brennan CJ in Re Residential Tenancies Tribunal of New South Wales; Ex parte the Defence Housing Authority (Henderson's Case) [1997] HCA 36 ; (1997) 190 CLR 410 at 427: "... there is no reason why the Crown in right of the Commonwealth should not be bound by a State law of general application which governs transactions into which the Crown in right of the Commonwealth may choose to enter." See also per Dawson, Toohey and Gaudron JJ at 445-447. 26 In Tasmania, as in all Australian States and Territories, the Commonwealth in its various manifestations is a highly pervasive presence. Discrimination is, as a matter of reality, committed by people, not abstract entities. In Tasmania at any one time there would be many people acting in a myriad of areas on behalf of the Commonwealth in situations where discriminatory conduct could occur. Apart from the Tasmanian capacity, the Crown's capacity in the right of the Commonwealth is, of all the Crown's capacities, the one most likely to be exercised in Tasmania, as the Tasmanian Parliament would be well aware. It is unlikely that the Parliament was too concerned with the Crown in the right of Saskatchewan or Bermuda. There is no logical reason to impute to the State Parliament an intention not to bind the Commonwealth, insofar as it has the power to do so, in relation to this important area of social policy. 27 Turning to the text of the Act, since s 4 provides expressly that the Crown in the right of Tasmania is bound, the Crown, at least in that capacity, must be a "person" for the purposes of s 16. The applicants submitted that the intention of the Parliament was to ensure that a respondent to a complaint had "legal personality and capacity". Thus, the argument went, the "person" must therefore be "a natural person, corporation or some other body such as a body politic or entity with legal capacity". I do not agree. In legal discourse, "person" often is confined to a natural person or some entity on which the law confers legal personality, such as a corporation. However, in the present case those drafting the Act have been at pains to ensure that "person" is not so limited. The term is defined to include an "organisation". The ordinary meaning of "organisation" extends to all sorts of bodies, such as unincorporated associations, clubs or government departments, which strictly speaking do not have legal personality. 28 Such a construction is consistent with the policy of the Act. The areas of activity in which discrimination may occur which are enumerated in s 22 include some in which it would be expected that unincorporated bodies such as clubs would be substantially involved. 29 The applicants argued that certain powers conferred on the Tribunal by s 89, such as orders for re-employment (s 89(1)(c)) or orders for payment of a fine (s 89(1)(e)) could not have been intended to apply to the Commonwealth. 102 There is a distinction between, on the one hand, the capacities of the Crown in the right of the Commonwealth and, on the other hand, the exercise of those capacities. State legislation cannot modify the nature of the executive power vested in the Crown in the right of the Commonwealth but it can regulate activities in which the Crown may engage in exercise of those activities. The distinction is discussed by Dawson, Toohey and Gaudron JJ in Henderson at 438-448. Their Honours noted at 444 that the laws of the land are not confined to the laws of the Commonwealth but include the common law and the statute law in force in each of the States. Thus in Pirrie v McFarlane [1925] HCA 30 ; (1925) 36 CLR 170 a person acting in the course of his duties as a member of the RAAF was held to be bound by the provisions of a Victorian Act requiring him to hold a driver's licence when driving a vehicle on a public highway.


case_text: The assumptions underlying that argument are not necessarily correct. For example, even if sanctions for discriminatory conduct could be characterised as criminal, which seems unlikely, the Crown may still be bound. There is a presumption against a statute imposing criminal liability upon the Crown, and it has been said to be a very strong one ( Cain v Doyle [1946] HCA 38 ; (1946) 72 CLR 409 at 424) but it remains a presumption and thus can be overcome by a clear indication of legislative intention to the contrary. At the very least, this is what has occurred in the Anti-Discrimination Act with the Crown in the right of Tasmania. 31 In any event, it does not follow that, because some remedies are incapable of exercise against some categories of person, Parliament did not intend such persons to be subject to the Act at all. Even if orders of the kind mentioned could be made against the Commonwealth, that would not be because of any lack of intention on the part of the Parliament, but rather because of the operation of s 109 and/or the impairment of capacities doctrine. Parliament in s 4 expressly recognised that the extent of its powers in respect of the Crown in capacities other than in right of Tasmania were not unlimited. Its intention was to bind the Crown as far as it was able. 32 A similar argument based on the obligations of organisations to make their members, officers, employees and agents aware of the kind of conduct which the Act prohibits (s 104) must meet the same fate.


case_outcome: distinguished

case_text: The applicants relied on Telstra Corporation Limited v Worthing [1999] HCA 12 ; (1999) 197 CLR 61. One of the questions in that case was whether the Workers Compensation Act 1987 (NSW) applied to the Commonwealth. That Act contained a provision (s 6(1)), very like s 4 of the Anti-Discrimination Act , that the Act "binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities". The High Court said at [21] (citations omitted): "As to the 1987 State Act, it contains the express statement in s 6(1), as to the Crown being bound in all its other capacities, which has been set out earlier in these reasons. However, a central provision of the legislative scheme established by the 1987 State Act is the requirement, under the sanction of a penalty, that an employer, other than a self-insurer, obtain and maintain in force a policy of insurance which complies with the requirements of the legislation (s 155). Further, a 'self-insurer' who holds a license granted, as the 1987 State Act originally stood, by the State Compensation Board constituted thereunder, was obliged, under penalty, to maintain with the New South Wales Treasurer a deposit in an amount determined by that Board (s 213). It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth. No such indication is to be seen in the 1987 State Act. To the contrary, s 6(2) states that nothing in that statute renders 'the Crown' liable to be prosecuted for any offence. These penal provisions are central to the structure upon which the regulatory scheme established by the State legislation rests." Worthing is an application of the principle that the question whether a State statute binds the Commonwealth is a matter of construction, turning on the intent of the State legislature as manifested by the text and purpose of the particular statute. The Anti-Discrimination Act could not be said to have central penal provisions comparable to those in the New South Wales Act. Nor is there any equivalent to s 6(2) of that Act. 34 I conclude therefore that as, by s 4, Parliament intended to bind the Crown in capacities other than in the right of Tasmania, those capacities must include the Crown's capacity in the right of the Commonwealth. Subject to the constitutional issues which are discussed below, the Anti-Discrimination Act binds the Commonwealth. It must necessarily follow that agents of the Commonwealth are bound. 35 Part 6 of the Anti-Discrimination Act is entitled "Dispute resolution". It commences with Div 1- Complaints, s 60 of which provides: "(1) Any of the following may complain to the Commissioner about discrimination or prohibited conduct: (a) a person against whom the alleged discrimination or prohibited conduct was directed; (b) a person (i) against whom the alleged discrimination or prohibited conduct was directed; and (ii) who is a member of a class of persons against whom alleged similar discrimination or prohibited conduct was directed, on behalf of that class, if the Commissioner is satisfied that a majority of those members are likely to consent; (c) a trade union that represents (i) a member of that union against whom the alleged discrimination or prohibited conduct was directed; or (ii) a class of members of that union against whom the alleged discrimination or prohibited conduct was directed, if the Commissioner is satisfied that a majority of those members are likely to consent; (d) an organisation against which the alleged discrimination or prohibited conduct was directed, if the Commissioner is satisfied that a majority of members of that organisation are likely to consent; (e) an agent of a person referred to in this section; (f) a person on behalf of the person against whom the alleged discrimination or prohibited conduct was directed. (2) The Commissioner may investigate any discrimination or prohibited conduct without the lodgement of a complaint if satisfied that there are reasonable grounds for doing so." 84 A law of a State will be inconsistent with a law of the Commonwealth: • where simultaneous obedience to both laws is impossible: Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2 ; (1968) 117 CLR 253 at 258-259; • where one law takes away a right, power or authority conferred by the other law: Botany Municipal Council v Federal Airports Corporation [1992] HCA 52 ; (1992) 175 CLR 453 at 464; • where the State law would alter, impair or detract from the operation of the Commonwealth law or the exercise of a power under the Commonwealth law: Telstra Corporation v Worthing [1999] HCA 12 ; (1999) 197 CLR 61 at 76, Victoria v Commonwealth (The Kakariki) [1937] HCA 82 ; (1937) 58 CLR 618 at 630-631, APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 ; (2005) 219 ALR 403 at [41] - [45] ; and • where a law of a State enters a field that the law of the Commonwealth was intended to cover exclusively or exhaustively: Commonwealth v Western Australia (1999) 196 CLR 302 at [55]; Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 at 465-466; Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483.


case_text: The present case is neatly bracketed by two authorities concerning deceased persons and anti-discrimination legislation. In Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 a complainant under the Sex Discrimination Act 1984 (Cth) died after her complaint was lodged. The Full Court of the Federal Court held that the complaint survived and could be pursued by the complainant's executrix. In CUNA Mutual Group Ltd v Bryant [2000] FCA 970 ; (2000) 102 FCR 270 the alleged discrimination occurred after death. An insurer under a loan protection policy refused payment because the deceased insured had falsely declared that he had never tested positive for HIV. Branson J held that no claim lay under the Disability Discrimination Act 1992 (Cth). In the present case the alleged discrimination occurred before death but the claim was lodged after death. 38 In Stephenson at 296, Wilcox J (with whom the other members of the Court agreed) said the common law rule that personal actions do not survive the death of the plaintiff had no application where a right of action is created by statute. Guidance must be sought in the statute itself. 39 It is clear from s 60 that a complainant need not be the person against whom the discriminatory conduct was directed. Section 60(1)(f) specifically so provides. Moreover, pars (b)(ii), (c)(ii) and (d) of s 60(1) provide for complaints on behalf of classes of persons discriminated against. The Act contains no restriction on the size of the classes. It is an obvious enough possibility that between the alleged discrimination and the lodging of a complaint some members of the class might have died. 40 The orders that the Tribunal may make under s 89(1) include: (b) an order that the respondent "redress any loss, injury or humiliation suffered by the complainant", and (d) an order that the respondent pay "to the complainant ... an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination ... ". In this context, "the complainant" suffering the loss, humiliation, etc must be the person discriminated against, even though the complainant for the purposes of s 60 may be, as we have seen, some other person. There seems to be no logical reason, consistent with the beneficial policy of the Anti-Discrimination Act , why redress and compensation should not be ordered in respect of a deceased person. 41 Redress of humiliation (par (b)) may serve the educative function of the Act by a public finding that particular discriminatory conduct was unlawful. As Wilcox J pointed out in Stephenson at 297, the primary purpose of anti-discrimination legislation is directed towards the elimination of discrimination. An inquiry and determination by the Tribunal into a complaint may assist that purpose by a formal declaration as to the unlawfulness of the conduct concerned, notwithstanding the death of the person discriminated against. 42 Compensation (par (d)) may benefit those who have suffered financially as a result of the discriminatory conduct. To expand on the last-mentioned point, one obvious field where discrimination may occur is in employment. Indeed it is the first of the "areas of activity" mentioned in s 22(1). Suppose a man is dismissed by his employer on a ground prohibited by s 16(1). He cannot get another job. He has a wife and young children to support. Then he dies. It would be an odd construction of the Act which had the effect of exempting the unlawfully discriminating employer from any liability to the dependents of the deceased. 43 I conclude that Ms Campbell can bring her complaint notwithstanding that it relates to discrimination against a person who has died. Indeed, so much more should this be the case when the complaint is that there is a direct connection between the discrimination and the death.


case_text: The present case is neatly bracketed by two authorities concerning deceased persons and anti-discrimination legislation. In Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 a complainant under the Sex Discrimination Act 1984 (Cth) died after her complaint was lodged. The Full Court of the Federal Court held that the complaint survived and could be pursued by the complainant's executrix. In CUNA Mutual Group Ltd v Bryant [2000] FCA 970 ; (2000) 102 FCR 270 the alleged discrimination occurred after death. An insurer under a loan protection policy refused payment because the deceased insured had falsely declared that he had never tested positive for HIV. Branson J held that no claim lay under the Disability Discrimination Act 1992 (Cth). In the present case the alleged discrimination occurred before death but the claim was lodged after death.


case_text: It seems to me at least arguable, on the very limited evidence so far available, that Mr Smith may have discriminated against Ms Campbell in that he treated her less favourably (s 14(2)) because she had an association with (was the mother of) Eleanor who was young and a female. Ms Campbell may be able to argue that if her child was an adult male Mr Smith would not have told her that he would not give her reasons why her son should resign and that he (Mr Smith) would not put anything in writing. This was arguably a matter in connection with the area of training. The Air Training Corps (as its name suggests) was a body whose raison d'être was training. Ms Campbell herself was not involved in training, but there was a connection between the discrimination alleged and training. What passed between Mr Smith and Ms Campbell concerned the membership of Eleanor, her child, in a body that conducted training of children and young people. There was, arguably a relationship between Mr Smith's conduct vis-à-vis Ms Campbell and the training activity that was relevant, having regard to the object and purpose of the Anti-Discrimination Act : see O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 367; J & G Knowles and Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196 ; (2000) 96 FCR 402 at [22] - [29] .


case_title: J & G Knowles and Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196 ; (2000) 96 FCR 402 at [22] - [29]