Download the full version of the ebook now at ebookultra.

com

Control of government action text cases and

commentary Fifth Edition Robin Creyke

https://ebookultra.com/download/control-of-
government-action-text-cases-and-commentary-fifth-
edition-robin-creyke/

Explore and download more ebook at https://ebookultra.com

 Recommended digital products (PDF, EPUB, MOBI) that
you can download immediately if you are interested.

Practicing strategy text and cases 1st Edition Sotirios

Paroutis

https://ebookultra.com/download/practicing-strategy-text-and-
cases-1st-edition-sotirios-paroutis/

ebookultra.com

A Commentary on the Homeric Hymn to Hermes Introduction

Text and Commentary Athanassios Vergados

https://ebookultra.com/download/a-commentary-on-the-homeric-hymn-to-
hermes-introduction-text-and-commentary-athanassios-vergados/

ebookultra.com

Media law cases material and commentary 2nd Edition David

Rolph

https://ebookultra.com/download/media-law-cases-material-and-
commentary-2nd-edition-david-rolph/

ebookultra.com

Contract law text and cases Second Edition. Edition

Claudio Bozzi

https://ebookultra.com/download/contract-law-text-and-cases-second-
edition-edition-claudio-bozzi/

ebookultra.com
Tort Law Text Cases and Materials 3rd Edition Jenny Steele

https://ebookultra.com/download/tort-law-text-cases-and-materials-3rd-
edition-jenny-steele/

ebookultra.com

Marketing Strategy Text and Cases 6th Edition O. C.

Ferrell

https://ebookultra.com/download/marketing-strategy-text-and-cases-6th-
edition-o-c-ferrell/

ebookultra.com

Global Corporate Finance text and cases 6th Edition Suk

Kim

https://ebookultra.com/download/global-corporate-finance-text-and-
cases-6th-edition-suk-kim/

ebookultra.com

Language and Woman s Place Text and Commentaries Robin

Tolmach Lakoff

https://ebookultra.com/download/language-and-woman-s-place-text-and-
commentaries-robin-tolmach-lakoff/

ebookultra.com

Plato s Atlantis Story Text Translation and Commentary

Christopher Gill

https://ebookultra.com/download/plato-s-atlantis-story-text-
translation-and-commentary-christopher-gill/

ebookultra.com
Control of government action text cases and commentary
Fifth Edition Robin Creyke Digital Instant Download
Author(s): Robin Creyke; John McMillan; Mark Smyth
ISBN(s): 9780409348187, 040934818X
Edition: Fifth edition
File Details: PDF, 19.15 MB
Year: 2019
Language: english
 TRIM SIZE: 176 x 242mm

Control of Government
Action
Text, Cases & Commentary

Fifth Edition

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd i 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd ii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Control of Government
Action
Text, Cases & Commentary

Fifth Edition

Robin Creyke
LLB (Hons) (WA), LLM (ANU)
Emeritus Professor, Australian National University

Matthew Groves
BA (Monash), LLB (Hons) (Monash), PhD (Monash)
Professor of Public Law, La Trobe University

John McMillan
BA, LLB (ANU)
Emeritus Professor, Australian National University

Mark Smyth
BA, LLB (Hons) (ANU), BCL (Oxon)
Solicitor, Supreme Court of New South Wales

LexisNexis Butterworths
Australia
2019

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd iii 26/09/2018   01:09:56
204279
 TRIM SIZE: 176 x 242mm

LexisNexis
AUSTRALIA LexisNexis Butterworths
475–495 Victoria Avenue, Chatswood NSW 2067
On the internet at: www.lexisnexis.com.au
ARGENTINA LexisNexis Argentina, Buenos Aires
AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, Vienna
BRAZIL LexisNexis Latin America, Sao Paulo
CANADA LexisNexis Canada, Markham, Ontario
CHILE LexisNexis Chile, Santiago
CHINA LexisNexis China, Beijing, Shanghai
CZECH REPUBLIC Nakladatelství Orac sro, Prague
FRANCE LexisNexis SA, Paris
GERMANY LexisNexis Germany, Frankfurt
HONG KONG LexisNexis Hong Kong, Hong Kong
HUNGARY HVG-Orac, Budapest
INDIA LexisNexis, New Delhi
ITALY Dott A Giuffrè Editore SpA, Milan
JAPAN LexisNexis Japan KK, Tokyo
KOREA LexisNexis, Seoul
MALAYSIA LexisNexis Malaysia Sdn Bhd, Petaling Jaya, Selangor
NEW ZEALAND LexisNexis, Wellington
POLAND Wydawnictwo Prawnicze LexisNexis, Warsaw
SINGAPORE LexisNexis, Singapore
SOUTH AFRICA LexisNexis Butterworths, Durban
SWITZERLAND Staempfli Verlag AG, Berne
TAIWAN LexisNexis, Taiwan
UNITED KINGDOM LexisNexis UK, London, Edinburgh
USA LexisNexis Group, New York, New York
LexisNexis, Miamisburg, Ohio

ISBN: 9780409348170 (pbk).

9780409348187 (ebk).

© 2019 Reed International Books Australia Pty Limited trading as LexisNexis.

First edition, 2005 (reprinted 2005, 2006, 2007 and 2008). Second edition, 2009. Third edition, 2012 (reprinted 2013
and 2014). Fourth edition, 2015 (reprinted 2017).
Cover image: ‘Gordon Street, Milton, NSW’. Reproduction of the artwork is with the kind permission of the artist,
Graeme Nilsson.
This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be
reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner.
Neither may information be stored electronically in any form whatsoever without such permission.
Inquiries should be addressed to the publishers.
Typeset in Adobe Caslon Pro and Trade Gothic.
Printed in China.
Visit LexisNexis Butterworths at www.lexisnexis.com.au

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd iv 26/09/2018   10:10:28
204279
 TRIM SIZE: 176 x 242mm

Contents

Prefacexvii
Casesxix
Statuteslxi

Part A Accountability in an Administrative State 1

Chapter 1 Administrative Law — Theory, History and Context 3
Introduction 3
Dichotomies in Administrative Law Theory 4
Judicial regulation vs legislative/executive autonomy 4
Intervention vs restraint: red light/green light 5
Individualism vs collectivism 5
Rule-based justice vs substantive justice 6
Legal vs non-legal paradigms 7
Managerialism and results vs governing by the rules 9
Evolution vs prescription 10
Public vs private 11
Accountability 14
Accountability as a legislative goal 14
Perspectives on accountability 15
Forms of accountability 18
Political accountability 19
Financial accountability 20
Administrative law accountability 22
Accountability through ethics and integrity 26
The Historical Foundations of Australian Administrative Law 30
Accountability across the Public/Private Divide 41

Part B The Framework for Challenging and Controlling Government Action 47

Chapter 2 The Framework for Judicial Review 49
Introduction 49
The Judicial Review Framework in Each Australian Jurisdiction 51
The legal basis for judicial review 51
Judicial review at common law 51
Judicial review under statutory schemes 52
Indirect judicial review 52
Commonwealth — Federal Court 53
Administrative Decisions (Judicial Review) Act 1977 (Cth) 53

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd v 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Judiciary Act 1903 (Cth) 55
Associated and accrued jurisdiction and the Federal Court of
Australia Act 1976 (Cth) 57
Migration Act 1958 (Cth) 62
Other limitations on the Federal Court’s jurisdiction 65
Commonwealth — Federal Circuit Court 66
State and territory jurisdiction in federal matters 67
The High Court’s original jurisdiction 68
State and territory judicial review schemes 71
Australian Capital Territory 71
New South Wales 72
Northern Territory 72
Queensland 72
South Australia 73
Tasmania 73
Victoria 73
Western Australia 73
Integration of Australian judicial review schemes 74
Justiciability 75
Justiciability in the Australian federal system 92
Jurisdictional Limitations on Judicial Review 93
Jurisdiction under the Administrative Decisions
(Judicial Review) Act 1977 (Cth) 93
‘Decision’ and ‘conduct’ 95
‘[D]ecision … of an administrative character’ 113
‘[D]ecision … made … under an enactment’ 120
Jurisdiction under the Constitution s 75(v) and
the Judiciary Act 1903 (Cth) s 39B 128
Jurisdiction under state and territory judicial review legislation 130
Judicial Review across the Public/Private Divide 131
Government in perspective 131
Non-government bodies 132
Government commercial activity 148
Private law functions of government 150

Chapter 3 Merits Review and Administrative Tribunals 153

Introduction 153
Administrative Tribunals — Their Nature, Role, Structure and
Relationship to Government 155
Categorising administrative tribunals 155
State and territory tribunal systems 161
Appeal framework 164
Tribunals in the system of government 164
Administrative Review Council 169
The tribunal framework in each Australian jurisdiction 170
Commonwealth 170
Australian Capital Territory 172

vi

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd vi 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Contents 
New South Wales 172
Northern Territory 173
Queensland 174
South Australia 174
Tasmania 175
Victoria 175
Western Australia 176
Integration of Commonwealth, state and territory administrative
review schemes 176
Appeals 177
Tribunal independence of government 178
Tribunal membership and panels 184
Merits Review — The Concept and Scope 185
Merits review — refining the concept 198
Contemporaneous review 200
The scope of the jurisdiction to undertake merits review 204
Merits review and other forms of statutory appeal 206
Procedure and Evidence — Their Role in Merits Review by
Administrative Tribunals 210
Tribunal procedures generally 211
Evidence, fact-finding and onus of proof 215
Adversarial vs inquisitorial adjudication 223
Alternative (or assisted) dispute resolution (ADR) 225

Chapter 4 Other Methods of Administrative Law Review 227

Introduction 227
Ombudsman Offices — Their Structure, Role and Powers 228
Establishment of ombudsman offices in Australia 228
The statutory framework for ombudsman offices 233
Functions of the ombudsman 236
Ombudsman Offices — Special Issues 240
Ombudsman essentials and protections 241
Recommendatory vs determinative powers 244
Locating the ombudsman in the framework of government 247
Litigation and the ombudsman 251
Human Rights Review 257
Defining human rights 257
Australian human rights and anti-discrimination scheme 259
State and territory human rights and anti-discrimination schemes 263
Unlawful discrimination 264
International bodies 269
Anti-Corruption and Integrity Commissions 272
Public Interest Disclosures 276
Alternative Dispute Resolution in Administrative Law 279
Mediation and other forms of alternative dispute resolution 279
Commonwealth 279

vii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd vii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

States and territories 281
Benefits of alternative dispute resolution 281
Internal review 282
Customer service charters or codes of conduct 283

Chapter 5 Constitutional Considerations 285

Introduction 285
Constitutional Principles 286
Rule of law 287
Separation of powers 291
Responsible government 292
Constitutionalism 293
Commonwealth Constitutional Provisions 294
The separation of powers — legislative power 295
The separation of powers — judicial power 298
Defining a Chapter III court 300
Defining federal judicial power 308
Conferral of functions upon federal administrative tribunals 309
Conferral of functions upon federal executive agencies 316
Conferral of functions upon Chapter III courts 321
Appointment of Chapter III judges to tribunals and
to discharge executive functions 326
Federal jurisdiction 333

Chapter 6 Rule-Making and Control of Subordinate Legislation 341

Introduction — The Role and Importance of Subordinate Legislation 341
The nature of subordinate legislation 342
Forms of subordinate legislation and statutory instruments 346
Regulatory impact and subordinate legislation 350
Accountability and control of subordinate legislation 352
Public Consultation on Proposed Rule-Making 356
Statutory consultation requirements applying to subordinate legislation 358
Sunsetting and repeal days 359
Publication of Subordinate Legislation 360
Parliamentary Oversight 362
Judicial Control 368

Part C The Criteria for Lawful Decision-Making 373

Chapter 7 Foundation Concepts of Judicial Review 375
Judicial Review in Context 375
Judicial Review — Concept and Scope 376
The legality/merits distinction — foundation cases 376
Framing the grounds for judicial review — statutory codification,
jurisdictional error or something else? 385
Judicial substitution of a new decision 396
The Jurisprudential Foundation of Judicial Review 397

viii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd viii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Contents 
Foundation theories: common law vs parliamentary intention 397
Constitutional foundations 402
Related Concepts and Principles 405
Polycentricity 405
Discretion 407
‘Self-executing rules’ and ‘ministerial acts’ 411
Automated decision-making 412
Judicial Deference and Restraint 417
Judicial deference to agency interpretation of legislation 418
Judicial deference to the position, skill or experience of the
decision-maker 424
Judicial restraint in the scrutiny of administrative reasons 425
Standard or intensity of judicial review 428

Chapter 8 Unauthorised Decision-Making 433

Introduction 433
Unauthorised Decision-Making: General Principles 434
Identifying the source of legal authority for government action 434
Foundation cases 436
The presumption of regularity 444
Unauthorised Decision-Making: Relevant Principles of
Statutory Construction 446
Statutory construction and public law 446
The language of the statute 446
The nature of the subject matter being regulated and
interests apt to be affected 449
Beneficial construction 450
The nature of the power being exercised 451
The nature of the decision-maker 452
Interpretation statutes 452
Extrinsic materials 453
Common law approaches, assumptions and presumptions 454
Implied incidental power 454
The principle of legality and established freedoms and immunities 458
Human rights considerations 468
Pecuniary burdens and penalties 469
Access to the courts 471
Statutory phraseology cast in ‘state of mind’ and in
‘subjective’ terms 472
The statutory requirement for ‘reasonable grounds’
to support a decision 477
Unauthorised Decision-Making: Subordinate Legislation 481
Standard principles — special issues 481
General test of invalidity 483
The complement/supplement distinction 488
The regulate/prohibit distinction 490
The means/ends distinction 496
ix

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd ix 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Unreasonableness as a test of invalidity 497
Reasonable proportionality and the purpose/subject-matter distinction 498
Unauthorised Decision-Making: The Decision-Maker 508
Categories of authorised decision-maker 508
Delegation and agency — some refinements and special issues 519
Statutory modification 519
Delegation of judicial and legislative power 520
Improperly constituted body 520
Avoiding the consequence of invalidity 522
The de facto officer doctrine 523
Unauthorised Decision-Making: Other Special Issues 527
Recital of an incorrect statutory authority to take action 527
Certainty as an implied statutory requirement 529

Chapter 9 Executive Power and Decision-Making 535

Introduction 535
Executive Power as a Source of Legal Authority for
Government Action 536
Prerogative 536
Capacities 542
Statutory abrogation of the prerogative and of executive power 545
Executive power cannot be used for coercive or intrusive purposes 550
The constitutional ambit of Commonwealth executive power 554
Jurisdiction 563
Justiciability 565
Grounds of Review 565
Contractual exercises of non-statutory power 569
Executive schemes and ombudsman oversight 571

Chapter 10 Statutory Purpose and Relevant Considerations 573

Introduction 573
Acting for an Unauthorised Purpose 574
Authorised statutory purpose 574
Actual purpose of the decision 581
Multiple purposes 581
Statutory indeterminacy 594
Considering Irrelevant Matters 595
Criteria of relevance 596
Matters that were considered 598
Policy as an irrelevant consideration 610
Evidence of an irrelevant consideration 613
Effect of an unauthorised purpose or an irrelevant consideration 614
Failing to Consider Relevant Matters 615
Obligation to consider 616
Failure to consider 617
Other issues 618

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd x 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Contents 
Chapter 11 Natural Justice 643
Introduction 643
History of the doctrine 646
Rationale for the doctrine 647
When natural justice applies 649
The Hearing Rule — General Tests 655
Common law implication 656
Legislative implication 656
Universal implication 657
Implication from multiple factors 659
The Hearing Rule — Special Factors 683
The right or interest affected by a decision 683
Legitimate expectation 686
Advisory reports and recommendations 693
Statutory framework for making and reviewing decision 694
Circumstances that can affect whether natural justice applies 707
The Hearing Rule — Content 712
Development of the principles 712
Specific principles concerning the content of the hearing rule 717
Outline of the content element of the hearing rule 717
The requirement to give prior notice, disclosure and
an opportunity to comment 717
Who should conduct the hearing? 727
Conduct of the hearing: oral hearing or written submissions 728
Oral hearings: legal representation 728
Cross-examination 729
Duty to make inquiries or assist parties 730
The Rule Against Bias 730
Categories of bias 732
Decision-maker’s private communication with a party 734
Decision-maker is both prosecutor and judge 734
Decision-maker holds prejudicial views 735
Decision-maker rehears the same matter on appeal 736
Decision-maker has made interlocutory decisions in
the same proceedings 736
Decision-maker exhibits animosity or partiality 736
Decision-maker has a close connection with a party 737
Other circumstances in which bias might arise 738
Test for prejudgment 739
Exceptions 742

Chapter 12 Executive Policies, Directions and Representations 767

Introduction: The Role of Policy in Government Administration 767
The meaning of policy 768
Discretion vs policy: a clash of values? 770
The Legal Status of Executive Policies 773

xi

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xi 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

The legal relevance of policies 773
The weight or influence of policies: the non-fettering and
non-abdication rules 774
The legal consequence of ignoring, breaching or
misconstruing a policy 789
Ministerial Directions and Other High Level Policies 794
Statutory Directions 803
Administrative Tribunals and Government Policy 807
Representations and Estoppel 821
Contractual Fetters on Government Authority 830

Chapter 13 Law, Fact and Evidence 835

Introduction 835
No Evidence 837
No evidence as a ground for judicial review at common law 837
No evidence as a ground for judicial review under the ADJR Act 843
Interrelationship between ‘no evidence’ and other grounds 843
The scope of section 5(3)(a): statutory requirement 843
The scope of section 5(3)(b): a non-existent fact 845
Interrelationship between ‘no evidence’, statutory requirement
for evidence, and reliance on non-existent fact 846
Evidence, probative evidence and administrative fact-finding 851
Probative evidence rule 854
Judicial Review of Fact-Finding Errors 857
The jurisdictional (or objective) fact concept 863
Judicial Review of Error of Law and Jurisdictional Error 874
Certiorari for error of law on the face of the record 874
Error of law under the ADJR Act 875
Jurisdictional error 875
The Law/Fact Distinction as a Generic Legal Concept 877
Law/fact — general principles 877
Applying legislation to the facts 882
Fact-finding 883
Rule-stating 883
Rule application 885
Law/fact — a false dichotomy? 894
Review of Administrative Fact-Finding by Tribunals and
Ombudsman Offices 895

Chapter 14 Failure to Perform a Statutory Duty 897

Introduction 897
Statutory Duty to Make a Decision or Exercise a Power 898
Statutory Duty to Provide a Service 903
Statutory Duty to Enforce and Implement the Law 908
Non-Judicial Enforcement of Statutory Duties 915

xii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Contents 
Chapter 15 Unreasonableness, Irrationality and Proportionality 919
Introduction 919
The Development of Wednesbury Unreasonableness 920
Irrationality, illogicality and unreasonableness 924
Illustrative Cases and Categories 937
Lack of plausible justification 938
Capricious use of power 941
Evidentiary weighting 943
Duty of inquiry 945
Unjustified unequal treatment 948
Proportionality 950
Statutory Unreasonableness 961
Meaning of ‘reasonable’ or ‘unreasonable’ 961
Bad faith and fraud 962
Fraud 962
Bad faith 964

Part D Remedies for Unlawful Government Action 967

Chapter 16 The Consequences of Unlawful Decision-Making 969
Theories of Invalidity — Options and Outcomes 969
Absence of legal authority and the consequence of invalidity 970
Separation of powers and the presumption of regularity 972
Breach of Associated Statutory Requirements 990
Protection of an Invalidity by Parliament —
Privative/Ouster/Preclusion Clauses 997
Privative clauses and s 75(v) of the Constitution 1001
Privative clauses and the states 1003
Privative clauses — leading cases 1004
Jurisdictional Error and Invalidity 1019
Severance and Invalidity 1033

Chapter 17 Judicial Review Remedies 1037

Introduction 1037
Certiorari 1043
Prohibition 1059
Mandamus 1060
Habeas Corpus 1068
Injunction 1075
Declaration 1080
Statutory Judicial Review Remedies 1087
Judicial Discretion to Refuse Relief 1092

Chapter 18 Standing 1099

Introduction 1099
The Role of Standing in Public Law Litigation 1100
xiii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xiii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

The case for restricting standing in public law litigation 1100
The case against restrictive standing in public law litigation 1103
The interrelationship of standing and other public law principles 1106
Standing — Foundation Cases 1106
High Court decisions 1106
Other illustrative cases 1112
Specific Remedies and The Principles of Standing 1121
Non-statutory remedies 1121
Declaration and injunction 1121
Mandamus 1122
Habeas corpus 1122
Certiorari and prohibition 1122
Remedies under the Administrative Decisions (Judicial Review) Act 1125
Other statutory phrases 1126
Standing in the Administrative Appeals Tribunal 1127
Standing in other merits review tribunals 1130
Open standing 1131
Special Issues 1133
The role of the Attorney-General 1133
Joinder and amicus curiae 1134

Part E Information and Access 1137

Chapter 19 Access to Information 1139
Introduction — The Adoption of Access to Information
Legislation in Australia 1139
Access to information legislation in each Australian jurisdiction 1141
Philosophy and scope 1142
Outline of the Commonwealth FOI Act 1149
Legal right of access 1150
Objects 1152
Exemptions, conditional exemptions and public interest factors 1154
Other grounds for denying access 1155
Publication of information 1157
Correction of records 1157
Review, complaints and appeals 1158
Interaction with the Archives Act 1159
Operation of the FOI Act 1160
FOI Case Law 1161
Scope of the FOI Act — Governor-General and courts 1161
Exemption issues — frankness and candour claims 1164
Exemption issues — an applicant’s special interest in access 1166

Chapter 20 Privacy 1171

Privacy — Concept and Scope 1171
Statutory protection of privacy 1172
A privacy tort? 1174

xiv

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xiv 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Contents 
Privacy Legislation in Australia 1178
Commonwealth Privacy Act 1178
Administration and enforcement of the Privacy Act by
the OAIC and the Privacy Commissioner 1185
Notifiable data breaches 1187
Other Commonwealth legislation 1187
State and territory privacy legislation 1188
Australian Capital Territory 1188
New South Wales 1188
Northern Territory 1189
Queensland 1189
South Australia 1190
Tasmania 1190
Victoria 1190
Western Australia 1191
Illustrative Cases 1191

Chapter 21 Obtaining Reasons for Government Decisions 1195

Introduction — Reasons in Australian Administrative Law 1195
Statutory duty to provide reasons for decisions 1197
Common law position 1200
Special or exceptional circumstances at common law 1206
Natural justice exception 1207
Right of appeal exception 1208
Quasi-judicial nature of proceedings exception 1208
Content of a Reasons Statement 1209
General considerations 1209
Scope of statutory duty to provide reasons 1211
Legal Status of a Statement of Reasons 1217
Remedying the absence of reasons 1218
Reasons created ex post facto 1219

Index 1221

xv

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xv 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xvi 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Preface

This book originated in lectures and course materials prepared by Robin Creyke and
John McMillan in the College of Law at the Australian National University. Mark Smyth
(who assisted in the third edition) became a co-author for the fourth edition, joined by
Matthew Groves for the fifth edition. The three-year cycle of new editions points to the
dynamic quality of Australian administrative law.
The structure and style of the book have remained the same through five editions. Our
foremost objective is to display the breadth and diversity of administrative law. One element is
the numerous bodies to which a person aggrieved by government action can turn for assistance
or independent review — notably courts, tribunals, complaint and investigation agencies —
aided by mechanisms such as internal review and alternative dispute processes. Next are the
principles those bodies apply and the remedies they provide to correct erroneous administrative
action. This is done in a setting of constitutional rules, common law traditions, public law
principles and executive policies that guide how official power should be exercised. Those
aspects of administrative law are not uniform across Australia, and state and federal differences
are noted.
A key structural feature of this book is that the criteria for review are dealt with separately
in Part C of the book, while the framework of administrative law bodies is covered in Part B
and judicial review remedies in Part D. This structure highlights that review criteria such as
natural justice and error of law are applied and developed by all review bodies including courts,
tribunals, ombudsman offices and other review agencies.
Another feature of this book is that it contains more textual discussion and analysis than
is common for a casebook. The administrative law framework is complex, and generic legal
principles must be applied in diverse areas of government decision-making such as taxation,
immigration, heritage protection, urban planning, and foreign relations, and at differing levels
of government from governors and ministers to lower level officials. The book is widely used as
a reference book in government and legal practice, because of this extended discussion of issues.
Changes and refinements to all areas of administrative law are noted in this fifth edition.
Significant doctrinal themes that have emerged since the last edition include: the reasonableness
pendulum has swung back from the position reached in Li; the ascendancy of jurisdictional
error continues unabated, though faces criticism and questioning from leading jurists and
academics; tribunal amalgamation across the Australian federation faces a new barrier in the
High Court’s decision in Burns v Corbett; and recognition grows of the contribution that soft
law can make to structuring decision-making and reducing regulatory burdens.
At the institutional level, ombudsman offices acquire ever more functions to enable more
strategic intervention to safeguard vulnerable communities; anti-corruption institutions have
become more embedded in the structure of Australian government; information regulation
(privacy and access to information laws) has been extended, but not without controversy;
and there is strengthened interest in viewing these non-judicial mechanisms as elements of a
xvii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xvii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

national integrity framework. These developments point to continuing vigour and development
in Australian administrative law.
We owe a debt to numerous colleagues, students and friends who have helped shape the
ideas presented in this book; our gratitude to those listed in earlier editions is unchanged.
We have benefited greatly from the professional LexisNexis Butterworths team. Special thanks
are due to our patient and understanding commissioning editors — Geraldine MacLurcan,
and the indefatigable and supportive Jocelyn Holmes — and to our copy editors — initially
Emille Boulot and later Linda Nix AE, who appropriately has a ‘golden orb’ business title!
We are always delighted to receive comments and suggestions on this book from students,
teachers, practitioners and readers. The administrative law system is stronger when it captures
the ideas of those who work within it. Our hope is that this book will be part of that important
dialogue.
Robin Creyke
Matthew Groves
John McMillan
Mark Smyth
September 2018

xviii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xviii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases
References are to paragraph numbers
Case extracts are in bold

3D Scaffolding Pty Ltd v Commissioner of Access for All Alliance (Hervey Bay) Inc
Taxation (2008) 105 ALD 475 .... 13.5.19 v Hervey Bay City Council (2007) 162 FCR
313 .... 18.3.12
A Accident Compensation Commission v Croom
A v Corruption and Crime Commissioner (2013) [1991] 2 VR 322 .... 19.2.11
306 ALR 491 .... 10.3.5 Adam, Re (1837) 1 Moo PCC 460; 12 ER 889
— v Hayden (No 2) (1984) 156 CLR 532; 56 .... 9.2.21C
ALR 82 .... 5.2.6, 8.2.6, 8.2.8C, 9.2.13 Adams and the Tax Agents’ Board, Re (1976) 1
AB Oxford Cold Storage Co Pty Ltd v Arnott ALD 251 .... 3.3.13, 3.3.21, 5.2.24, 5.3.31,
(2005) 11 VR 298 .... 8.5.3, 8.5.12 5.3.32C, 8.2.12
AB v State of Western Australia (2011) 244 CLR Adams v Minister for Immigration and
390 .... 8.3.11, 13.5.25 Multicultural Affairs (1997) 70 FCR 591
ABAR15 v Minister for Immigration and Border .... 2.3.14, 12.2.19
Protection (No 2) (2016) 242 FCR 11 ADCO Constructions Pty Ltd v Goudappel
.... 15.2.10 (2014) 308 ALR 213 .... 6.1.5, 8.3.11, 8.4.11
Abbasi v Secretary of State [2002] EWCA Aerolineas Argentinas v Federal Airports
Civ 1598 .... 17.5.5C Corporation (1995) 63 FCR 100
Abboud v Minister for Immigration and Border .... 2.4.40C
Protection [2018] FCA 185 .... 15.3.16 Agricultural Societies Council of NSW v Christie
Abebe v Commonwealth (1999) 197 CLR 510 (2016) 340 ALR 560 .... 2.5.6, 17.2.11
.... 2.2.26, 2.3.9C, 2.3.19, 5.3.55, 5.3.60, Aid/Watch Inc v Commissioner of Taxation
16.4.1 (2010) 241 CLR 539 .... 13.5.26
Aboriginal and Torres Strait Islander Ainsworth v Criminal Justice Commission (1992)
Commission v Commonwealth Ombudsman 175 CLR 564; 106 ALR 11 .... 2.4.16C,
(1995) 39 ALD 570; 134 ALR 238 11.3.2, 11.3.4C, 11.3.17, 11.3.24, 11.3.30C,
.... 4.3.21, 4.3.23C, 4.3.26 11.3.33C, 13.4.3, 17.2.5, 17.2.13C, 17.2.15,
Aboriginal Community Fund Pty Ltd v Chief 17.3.3, 17.7.3, 17.7.6C, 17.7.8
Executive Centrelink (2016) 153 ALD 104 — v The Ombudsman (1988) 17 NSWLR 276
.... 2.4.58, 21.3.7 .... 4.3.7, 4.3.20
Aboriginal Development Commission v Hand Air Express Ltd v Ansett Transport Industries
(1988) 15 ALD 410 .... 12.4.6 (Operations) Pty Ltd (1981) 146 CLR 249
Aboriginal Land Council (NSW) v Aboriginal .... 17.6.2
and Torres Strait Islander Commission Akers v Minister for Immigration and Ethnic
(1995) 38 ALD 573 .... 15.3.5 Affairs (1988) 20 FCR 363 .... 13.2.26C,
Aboriginal Legal Service Ltd v Minister for 13.3.4
Aboriginal and Torres Strait Islander Affairs ALA Schechter Poultry Corp v United States 295
(1996) 69 FCR 565 .... 12.4.6 US 495 (1935) .... 5.3.8
Abrams and Minister for Foreign Affairs and ALA15 v Minister for Immigration and Border
Trade, Re (2007) 98 ALD 438 .... 12.2.8 Protection [2016] FCAFC 30 .... 11.5.10

xix

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xix 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Al-Kateb v Godwin (2004) 219 CLR 562 Apache Northwest Pty Ltd v Agostini (No 2)
.... 5.3.38, 8.3.28 [2009] WASCA 231 .... 11.3.17
Alcan (NT) Alumina Pty Ltd v Commissioner APLA Ltd v Legal Services Commissioner
of Territory Revenue (Northern Territory) (NSW) (2005) 224 CLR 322 .... 5.2.11
(2009) 239 CLR 27 .... 8.3.6 Appellant WABZ v Minister for Immigration
Alice Springs Town Council v Mpweteyerre and Multicultural Affairs (2004) 134 FCR
Aboriginal Corporation (1997) 115 NTR 25 271 .... 11.4.32
.... 8.3.25 Applicant A v Minister for Immigration and
Alister v R (1984) 154 CLR 404 .... 2.3.14 Ethnic Affairs (1997) 190 CLR 225
Allan v Transurban City Link Ltd (2001) 208 .... 8.3.20, 8.3.39
CLR 167 .... 18.1.1, 18.4.13 Applicant VEAL of 2002 v Minister for
Alliance to Save Hinchinbrook Inc v Cook Immigration and Multicultural and
[2007] 1 Qd R 102 .... 10.4.29, 18.3.12 Indigenous Affairs (2005) 225 CLR 88;
Ambrey v Oswin [2005] QCA 112 .... 11.5.25 87 ALD 512; 222 ALR 411; 80 ALJR 228
AMF15 v Minister for Immigration and Border .... 10.3.8, 11.4.15, 11.4.16C, 11.4.23
Control (2016) 241 FCR 30 .... 11.4.33 Applicant WAEE v Minister for Immigration
Anderson Stuart v Treleaven (2000) 49 NSWLR and Multicultural and Indigenous Affairs
88 .... 21.1.32 (2003) 75 ALD 630 .... 13.3.8
Anderson v Charles Sturt University (2003) Applicants A1 & A2 v Brouwer (2007) 16 VR
NSWADT 121 .... 19.2.26 612 .... 3.3.46
Andrews v Mitchell [1905] AC 78 .... 11.4.11 Applicants M16 of 2002 v Minister for
Anghel and Minister for Transport (No 1), Re Immigration and Multicultural and
[1995] 1 Qd R 465 .... 2.4.61 Indigenous Affairs (2005) 148 FCR 46
Animal Liberation Ltd v Department of .... 11.4.31
Environment and Conservation [2007] Application for Bail by Isa Islam, Re (2010) 4
NSWSC 221 .... 18.3.12 ACTLR 235; 175 ACTR 30 .... 4.4.21
Animals Angels’ eV v Secretary, Department of Applied Medical Australia Pty Ltd v Minister for
Agriculture (2014) 228 FCR 35 .... 18.3.8, Health (2016) 246 FCR 555 .... 2.4.42
18.3.13 ARG15 v Minister for Immigration and Border
Anisminic Ltd v Foreign Compensation Protection (2016) 250 FCR 109 .... 10.4.15
Commission [1969] 2 AC 147 .... 16.3.7, Argos Pty Ltd v Corbell, Minister for the
16.4.5, 16.4.17C Environment and Sustainable Development
Annetts v McCann (1990) 170 CLR 596; 21 (2014) 315 ALR 44; [2014] HCA 50
ALD 651; 97 ALR 177 .... 11.1.20C, .... 18.1.2, 18.3.15, 18.3.16C, 18.4.11
11.2.19C, 11.3.2, 11.3.3C, 11.3.4C, 11.3.5, ARM Constructions Pty Ltd v Deputy
11.3.17, 11.3.30C Commissioner of Taxation (NSW) (1986)
Ansell v Wells (1982) 43 ALR 41 .... 11.4.11, 10 FCR 197 .... 10.4.28
11.4.14 Arnold v Minister Administering the Water
Ansett Transport Industries (Operations) Pty Management Act 2000 (2007) 157 LGERA
Ltd v Commonwealth (1977) 139 CLR 54; 379 .... 2.2.37
17 ALR 513 .... 10.3.23, 12.1.6, 12.2.20, Arthur Yates & Co Pty Ltd v Vegetable Seeds
12.3.4C, 12.4.2, 12.7.2, 12.7.4C Committee (1945) 72 CLR 37 .... 10.2.13C
— v Minister for Aviation (1987) 72 ALR 469 ASP15 v Commonwealth of Australia (2016) 248
.... 7.5.28 FCR 372 .... 14.2.9, 17.4.14
— v Wraith (1983) 48 ALR 500 .... 21.2.6, 21.2.7 Assa Abloy Aust Pty Ltd v Australian Lock Co
Anti-Discrimination Commissioner v Acting Pty Ltd (2005) 147 FCR 126 .... 18.3.15
Ombudsman [2002] Tas SC 24 .... 4.3.28 Assistant Commissioner Michael James Condon
— v — (2003) 11 Tas R 343 .... 2.4.44, 4.3.28 v Pompano Pty Ltd (2013) 252 CLR 38
Anvil Hill Project Watch Association Inc .... 5.3.17
v Minister for the Environment and Water Associated Provincial Picture Houses Ltd
Resources (2008) 166 FCR 54 .... 10.3.25, v Wednesbury [1948] 1KB 223 .... 2.1.1,
13.3.15 2.3.4E, 2.5.15C, 3.4.14, 4.2.14, 6.1.2,
xx

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xx 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
7.2.2, 7.2.3C, 7.2.6, 7.2.7C, 7.2.8–7.2.11, — v World Best Holdings Ltd (2005) 63
7.2.18C, 7.3.4E, 7.4.11, 7.5.23, 7.5.24, NSWLR 557 .... 8.5.17
7.5.27, 10.4.13C, 11.1.4, 11.4.35, 12.2.3, Attorney-General (NT) v Emmerson (2014) 307
13.2.9, 13.3.4, 13.3.13C, 15.2.1–15.2.3, ALR 174 .... 5.3.17
15.2.6–15.2.9, 15.2.14, 15.2.17C, 15.2.18C, — v Hand (1988) 16 ALD 318 .... 7.2.26, 13.3.4
15.2.21C, 15.3.7C, 15.3.9, 15.3.11, 15.3.13, — v Minister for Aboriginal Affairs (1987) 16
15.3.15, 15.3.17, 15.3.24, 15.3.26, 15.3.27, FCR 267 .... 2.4.3
15.3.29C, 15.3.31, 15.3.34E, 15.3.41, — v Olney J; Ex parte Northern Land
15.4.1–15.4.3 Council (FCA, 28 June 1989, unreported)
Aston and Secretary, Department of Primary .... 10.2.14
Industry, Re (1985) 8 ALD 366 .... 12.5.12 Attorney-General of Canada v Inuit Tapirisat of
Attorney-General v Bastow [1957] 1 QB 514 Canada (1980) 115 DLR (3d) 1 .... 11.2.18C
.... 17.6.6C Attorney-General of WA v Marquet (2003) 217
— v — (1922) 91 LJKB 897 .... 8.3.43C CLR 545 .... 2.3.13
— v Colchester Corporation [1955] 2 QB 207 Attorney-General (SA) v Corporation of the City
.... 14.3.6 of Adelaide (2013) 249 CLR 1; 295 ALR
— v De Keyser’s Royal Hotel Ltd [1920] ACT 197; [2013] HCA 3 .... 5.2.9, 6.5.1, 8.2.11,
508 .... 9.2.14 8.3.6, 8.3.14, 8.4.5, 8.4.24, 8.4.26, 8.4.29C,
— v Foster (1999) 84 FCR 582 .... 8.5.13 8.4.30, 8.5.12, 15.2.5, 15.3.32
— v Great Eastern Railway Co [1880] 5 App Cas Attorney-General (Vic) v The Commonwealth
473 .... 8.3.23 (1935) 52 CLR 533 .... 8.3.27C
— v Harris [1961] 1 QB 74 .... 17.6.6C Attorney-General (Victoria) v Glass [2016]
— v Kehoe [2001] 2 Qd R 350 .... 21.1.27 VSCA 306 .... 4.3.19
— v Mayor, &c, of Galway (1829) 1 Mol 95 Attorney-General’s Department v Cockroft
.... 17.6.7C (1986) 10 FCR 180 .... 3.4.19
— v Premier Line Ltd [1932] 1 Ch 303 .... 17.6.6C Australian Associated Motor Insurers Ltd
— v Sharp [1931] 1 Ch 121 .... 17.6.6C v Motor Accidents Authority of NSW
— v Smethwick Corporation [1932] 1 Ch 562 (2010) 56 MVR 108 .... 11.4.20
.... 8.3.25 Australian Broadcasting Commission Staff
— v Smith [1958] 2 QB 173 .... 17.6.6C Association v Bonner (1984) 2 FCR 561
— v 2UE Sydney Pty Ltd (2006) 97 ALD 426; .... 7.5.8, 15.4.3
226 FLR 62 .... 3.3.21 Australian Broadcasting Corporation and Civil
— v Wilts United Dairies Ltd (1921) 37 TLR Aviation Safety Authority [2015] AICmr 21
884 .... 8.3.42, 8.3.43C, 8.3.44, 8.3.45 .... 19.3.4
Attorney-General (Canada) v Cain [1906] AC Australian Broadcasting Corporation and Herald
542 .... 9.2.21C and Weekly Times Pty Ltd, Re (2012) 132
Attorney-General (Cth) v Alinta Ltd (2008) 233 ALD 668 .... 19.2.6
CLR 542 .... 5.3.27 Australian Broadcasting Corporation v Lenah
— v Breckler (1999) 197 CLR 83 .... 5.3.30, 18.5.7 Game Meats Pty Ltd (2001) 208 CLR 199
— v Dreyfus (2016) 242 FCR 472 .... 19.2.20 .... 1.5.7, 17.6.2, 17.6.9, 20.1.10
— v The Queen [1957] AC 288 .... 5.3.10C — v O’Neill (2006) 229 ALR 457 .... 17.6.9
Attorney-General (Hong Kong) v Ng Yuen Shiu — v Redmore Pty Ltd (1989) 166 CLR 454;
[1983] 2 AC 629 .... 11.2.16C, 11.3.7 84 ALR 199 .... 16.2.3, 16.2.5, 16.2.10C,
Attorney-General (NSW) v Brewery Employees 16.2.11C
Union (NSW) (1908) 6 CLR 469 Australian Broadcasting Tribunal v Bond (1990)
.... 2.3.9C, 18.5.1 170 CLR 321; 94 ALR 11 .... 2.3.20, 2.4.7,
— v Dawes [1976] 1 NSWLR 242 .... 18.4.6C 2.4.8C, 2.4.9–2.4.12, 2.4.14C, 2.4.15,
— v Quin (1990) 170 CLR 1; 93 ALR 1 2.4.16C, 2.4.21, 2.4.22C, 2.4.31C, 2.4.50C,
.... 5.2.14, 5.2.24, 5.3.45, 7.2.2, 7.2.5C, 7.2.6, 2.5.12C, 10.3.6, 10.3.13, 11.1.7C, 11.5.35C,
7.2.8, 7.3.12, 7.5.8, 7.5.10C, 7.5.20C, 7.5.22, 13.2.4, 13.2.11, 13.2.14, 13.2.25C, 13.2.26C,
11.3.7, 11.3.8, 11.3.9C, 11.3.10, 12.6.5, 13.2.27C, 13.2.32, 13.3.3C, 13.3.4, 13.3.5C,
12.6.8C, 15.2.9, 15.2.21C 13.3.6, 13.3.7, 13.4.7
xxi

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxi 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

— v Saatchi and Saatchi Compton (Vic) Pty Ltd Australian Postal Corporation v Dao (No 2)
(1985) 10 FCR 1 .... 8.6.2C, 8.6.3 (1986) 66 NSWLR 497 .... 5.3.19
Australian Communications and Media — v D’Rozario (2014) 222 FCR 303 .... 13.2.9
Authority v Today FM (Sydney) Pty Ltd — v Forgie (2003) 130 FCR 279; 76 ALD 578
(2015) 317 ALR 279; 89 ALJR 382; [2015] .... 2.4.27, 2.4.33, 7.4.16
HCA 7 .... 4.3.26, 5.3.34, 5.3.37C, 8.3.37 — v Sinnaiah (2013) 213 FCR 449 .... 5.2.9, 8.3.9
Australian Communist Party v Commonwealth Australian Railways Union v Victorian Railways
(1951) 83 CLR 1 .... 5.2.1, 5.3.32C, 8.2.9C, Commissioners (1930) 44 CLR 319
10.2.13C .... 2.3.9C
Australian Conservation Foundation Inc Australian Retailers Association v Reserve Bank
v Commonwealth (1980) 146 CLR 493; of Australia (2005) 148 FCR 446 .... 10.4.4,
28 ALR 257 .... 17.7.6C, 18.1.2, 18.2.1, 13.2.15, 13.2.21, 15.3.8
18.3.1–18.3.3, 18.3.4C, 18.3.5C, 18.3.6C, Australian Securities and Investments Commission
18.3.8, 18.4.2, 18.4.6C, 18.4.23C, 18.5.2 and Sweeney [2013] AICmr 62 .... 19.2.30
Australian Conservation Foundation Australian Securities and Investments
v Environment Protection Board (1983) 1 Commission v Edensor Nominees Pty Ltd
VR 385 .... 18.4.13 (2001) 204 CLR 559 .... 2.2.18, 2.2.23,
— v Forestry Commission (1988) 19 FCR 127 2.2.45, 2.2.58, 2.4.59
.... 10.3.8, 10.4.4 — v Loiterton (2000) 101 FCR 370 .... 8.5.8
— v Minister for Resources (1989) 19 ALD 70 — v McCormack [2017] FCA 672 .... 15.3.5
.... 18.3.11C — v PTLZ (2008) 48 AAR 559 .... 13.5.5
Australian Crime Commission v AA Pty Ltd — v Saxby Bridge Financial Planning Pty Ltd
(2006) 149 FCR 540 .... 8.3.7 (2003) 133 FCR 290 .... 13.5.8C
— v NTD8 (2009) 177 FCR 263 .... 10.4.8 Australian Woollen Mills Pty Ltd v The
Australian Education Union v Department of Commonwealth 93 CLR 546 .... 9.2.30C
Education and Children’s Services (2012) Australian Workers’ Union v Bowen (No 2)
248 CLR 1 .... 8.3.5, 8.3.7 (1948) 77 CLR 601 .... 13.2.30
Australian Electoral Commission, Re; Ex parte Avel Pty Ltd v Attorney-General (NSW) (1987)
Kelly (2003) 198 ALR 262 .... 17.1.2 11 NSWLR 126 .... 10.2.22
Australian Finance Direct Ltd v Director of Avon Downs Pty Ltd v Federal Commissioner
Consumer Affairs Victoria (2007) 234 CLR of Taxation (1949) 78 CLR 353 .... 8.3.52,
96 .... 8.3.6 13.2.8, 13.5.12, 15.2.17C, 21.3.4
Australian Football League v Carlton Football AW v Vice Chancellor, University of Newcastle
Club Ltd [1998] 2 VR 546 .... 13.5.16 [2008] NSWADT 86 .... 20.3.3
Australian Foreman Stevedores Assn v Crone AZ4FB v Minister for Immigration and Border
(1989) 20 FCR 377 .... 18.1.2, 18.3.15, Protection (2015) 68 AAR 171 .... 15.2.10
18.3.16C AZAFQ v Minister for Immigration and Border
Australian Gas Light Co v Valuer-General (1940) Protection (2016) 243 FCR 451; 147 ALD
40 SR (NSW) 126 .... 13.5.26 121 .... 10.4.6, 10.4.8, 10.4.9, 21.3.3
Australian Institute of Marine and Power Azzopardi v Tasman UEB Industries Ltd
Engineers v Secretary, Department of (1985) 4 NSWLR 139 .... 13.5.10, 13.5.12,
Transport (1986) 13 FCR 124; 12 ALD 138; 13.5.22C, 13.5.28
71 ALR 73 .... 18.1.2, 18.3.8, 18.3.9C
Australian Municipal, Administrative, Clerical B
and Services Union v Greater Dandenong ‘BA’ and Merit Protection Commissioner [2014]
City Council (2000) 101 IR 143 .... 10.2.21 AICmr 9 .... 19.3.6C, 20.3.2
Australian National University v Burns (1982) 43 Baini v R (2012) 246 CLR 469 .... 8.3.6
ALR 25; 64 FLR 166 .... 2.4.45, 2.4.50C, Baker and Department of Immigration, Re
2.4.53 (1995) 37 ALD 744 .... 12.15.13
— v Lewins (1996) 68 FCR 87 .... 2.4.48, Baker v Canada (Minister of Citizenship and
2.4.50C Immigration) [1999] 2 SCR 817 .... 21.1.22

xxii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
Baldwin v Everingham [1993] 1 Qd R 10 Belmorgan Property Development Pty Ltd
.... 2.3.8, 2.5.10 v GPT Re Ltd (2007) 153 LGERA 450
Balmain Association Inc v Planning .... 8.5.10
Administrator (1991) 25 NSWLR 615 Beneficial Finance Corp Ltd v Commissioner of
.... 8.5.24 Australian Federal Police (1991) 31 FCR
Balog v Independent Commission Against 523 .... 8.6.4
Corruption (1990) 169 CLR 625 Bennett v President, Human Rights and Equal
.... 4.3.26 Opportunity Commission (2003) 134 FCR
Bancoult v Secretary of State for Foreign and 334 .... 8.4.2
Commonwealth Affairs [2008] 3 WLR 955 — v Superintendent, Rimutaka Prison [2002] 1
.... 11.3.10 NZLR 616 .... 17.5.8
Bank Mellat v Shayler [2003] Her Majesty’s Beyazkilinc v Baxter Immigration Centre (2006)
Treasury (No 2) [2014] AC 700 .... 15.3.28, 155 FCR 465 .... 2.2.19, 2.2.22
15.3.29C BHP Billiton Direct Reduced Iron Pty Ltd
Bank of New South Wales v Commonwealth v Duffus, Deputy Commissioner of Taxation
(1948) 76 CLR 1 .... 2.2.43, 16.5.3, 16.5.6C (2007) 99 ALD 149 .... 10.3.22, 12.2.4
Banks v Transport Regulation Board (Vic) (1968) Bidjara Aboriginal Housing and Land Co Ltd
119 CLR 222 .... 11.2.17C v Indigenous Land Corporation (2001) 106
Bare v Independent Broad-Based Anti- FCR 203 .... 14.2.9
Corruption Commission (2015) 48 VR 129; Big Country Developments Pty Ltd v Australian
[2015] VSCA 197 .... 4.5.4, 16.3.7 Community Pharmacy Authority (1995) 60
Barnett v Minister for Housing and Aged Care FCR 85 .... 18.3.15
(1991) 31 FCR 400 .... 17.4.7 Binse v Williams [1998] 1 VR 381 .... 8.3.25
Barratt v Howard (2000) 96 FCR 428 .... 8.3.14, Birdseye v Australian Securities and Investments
11.1.21 Commission (2003) 38 AAR 55
Barrick Australia v Williams (2009) 74 NSWLR .... 13.5.8C
733 .... 13.3.16 Birkdale District Electric Supply Co Ltd
Barton v Commonwealth (1974) 131 CLR 477 v Southport Corporation [1926] AC 355
.... 9.2.5, 9.2.13, 9.2.15, 9.2.21C, 9.2.25 .... 12.7.4C
Bartz v Department of Corrective Services [2002] BKL15 v Minister for Immigration and Border
2 Qd R 114 .... 2.3.17 Protection [2016] FCA 802 .... 21.2.16
Bateman’s Bay Local Aboriginal Land Council Blackpool Corporation v Locker [1948] 1 KB
v The Aboriginal Community Benefit Fund 349 .... 6.1.17
Pty Ltd (1998) 194 CLR 247; 155 ALR 684 Bloomfield & Sub-collector of Customs (ACT),
.... 14.4.7, 17.6.1, 17.6.4, 17.6.5, 17.6.7C, Re (1981) 4 ALD 204 .... 3.3.27
17.6.8, 17.7.6C, 18.1.2, 18.2.3C, 18.3.7, Blue Wedges Inc v Minister for the Environment,
18.3.15, 18.3.16C, 18.4.6C, 18.5.2 Heritage and the Arts (2008) 167 FCR 463
Bates v Lord Hailsham [1972] 2 All ER 1019 .... 10.4.4
.... 11.2.16C Blyth District Hospital Inc v South Australian
Baxter v Ah Way (1909) 8 CLR 626 .... 5.3.5C, Health Commission (1988) 49 SASR 501
6.1.4 .... 2.3.16
— v Commissioners of Taxation (NSW) (1907) 4 BNH16 v Minister for Immigration and Border
CLR 1087 .... 3.2.6C Protection [2017] FCAFC 109
Beale v Government Insurance Office of NSW .... 15.2.10
(1997) 48 NSWLR 430 .... 21.3.6 Board of Education v Rice [1911] AC 179
Becker and Minister for Immigration and Ethnic .... 11.2.16C, 11.4.3
Affairs, Re (1977) 1 ALD 158 .... 3.2.18, Bodruddaza v Minister for Immigration and
12.5.8, 12.5.9C Multicultural Affairs (2007) 228 CLR 651;
Behrooz v Secretary, Department of Immigration 234 ALR 114 .... 2.2.28, 2.2.43, 5.3.56,
and Multicultural and Indigenous Affairs 5.3.57C, 5.3.58C, 5.3.59, 5.3.61, 15.4.3,
(2004) 219 CLR 486 .... 17.5.8 16.1.11, 16.3.7–16.3.9, 17.1.7, 17.1.15

xxiii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxiii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Boehringer Ingelheim Pty Ltd v Department BRF038 v Republic of Nauru (2018) 91 ALJR
of Health and Ageing [2005] FCA 284 1197 .... 11.4.17
.... 17.7.8 Briginshaw v Briginshaw (1938) 60 CLR 336
Boensch v Donovan Electrical Services Pty Ltd .... 3.4.13C, 3.4.20, 3.4.21, 3.4.22C, 8.3.52,
[2014] NSWSC 1297 .... 11.4.35 13.2.29, 15.4.4
Bond v The Queen (2000) 201 CLR 213 .... 8.5.25 Bristol-Myers Squibb Australia Pty Ltd
Booth v Bosworth [2000] FCA 1878 .... 18.4.13 v Minister for Health and Family Services
— v Dillon (No 1) [1976] VR 291 .... 4.3.24 (1997) 49 ALD 240 .... 12.6.9
— v — (No 2) [1976] VR 434 .... 4.3.21, Bristol-Myers Squibb Pharmaceuticals Pty Ltd
4.3.22C, 4.3.24, 4.3.25 v Minister for Human Services and Health
— v — (No 3) [1977] VR 143 .... 4.3.24 (1996) 42 ALD 540 .... 12.6.9
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 British American Tobacco Australia Ltd
NSWLR 501 .... 17.9.7C v Gordon [2007] NSWSC 109 .... 11.5.19
Botany Bay City Council v Minister of State for British American Tobacco Australia Services Ltd
Transport and Regional Development (1996) v Laurie (2011) 242 CLR 283 .... 11.5.11,
66 FCR 537 .... 10.2.4, 10.3.13, 10.3.24 11.5.22, 11.5.24, 11.5.26, 11.5.33C
Botany Council v Ombudsman (1995) 37 British Broadcasting Corporation v Johns [1965]
NSWLR 357 .... 4.3.28 Ch 32 .... 9.2.5
Bowditch v Balchin (1850) 5 Ex 378 .... 8.3.49 British Imperial Oil Co v Federal Commissioner
Boyce v Owen [2000] NTCA 7 .... 4.3.27 of Taxation (1925) 35 CLR 422 .... 5.3.5C
— v Paddington Borough Council [1903] 1 Ch British Oxygen Co Ltd v Minister of Technology
109 .... 18.3.4C [1971] AC 610 .... 12.2.12C, 12.2.14C,
— v — [1903] 2 Ch 556 .... 18.2.1 12.2.15C, 12.4.4C, 12.5.5C
Boyle v Charge (1987) 12 ALD 555 .... 8.2.2 Broadbridge v Stammers (1987) 16 FCR 296
Bradley v Commonwealth (1973) 128 CLR 557 .... 12.2.22C, 16.2.10C
.... 9.2.21C, 14.3.1, 14.3.2C Brock v Deputy Child Support Registrar (1995)
Braemar Power Project Ltd v The Chief 57 FCR 538 .... 17.7.8
Executive, Department of Mines and Energy Bromet v Oddie [2003] FCAFC 213 .... 12.1.10
[2008] QSC 241 .... 2.4.42 Bromley London Borough Council v Greater
Bragg v Secretary, Department of Employment, London Council [1983] 1 AC 768
Education and Training (1995) 59 FCR 31; .... 10.3.20, 15.3.3, 15.3.23C
38 ALD 251 .... 17.9.5, 17.9.6C Bropho v Western Australia (1990) 171 CLR 1
Brambles Holdings Ltd v Federal Commissioner .... 5.2.6, 8.3.21
of Taxation (1977) 138 CLR 467 .... 2.4.28 Brown v Lizars (1905) 2 CLR 837 .... 9.2.21C
Brandy v Human Rights & Equal Opportunity — v Tasmania (2017) 91 ALJR 1089 .... 7.58
Commission (1995) 183 CLR 245; 37 ALD Browne v Dunn (1893) 6 R 67 .... 3.4.21,
340; 127 ALR 1 .... 4.4.9, 4.4.12, 5.3.22, 3.4.22C, 13.2.29
5.3.25, 5.3.28C, 5.3.29, 5.3.30 Brownells Ltd v Ironmongers’ Wages Board
Bread Manufacturers of New South Wales (1950) 81 CLR 108 .... 10.2.1, 10.2.9,
v Evans (1981) 180 CLR 404; 38 ALR 93 10.2.13C
.... 11.2.15, 12.2.1, 12.2.4, 12.2.11C, 12.3.2, Browning v Water Conservation & Irrigation
12.3.5C, 12.4.2 Commission (1947) 47 SR (NSW) 395
Brelin v The Minister for Immigration and .... 10.3.10C
Ethnic Affairs (Wilcox J, 14 May 1987, Bruce v Cole (1998) 45 NSWLR 163 .... 13.3.7
unreported) .... 10.4.22C Brutus v Cozens [1973] AC 854 .... 13.5.21C,
Brennan v Comcare (1994) 50 FCR 555 13.5.24
.... 8.3.12 BTR plc v Westinghouse Brake & Signal Co
Brett Goyne and Australian National Audit (Aust) Ltd (1992) 34 FCR 246 .... 13.5.19
Office [2014] AICmr 9 .... 19.2.6 Buck v Bavone (1976) 135 CLR 110; 9 ALR 481
Brewster’s Application, Re [2017] 1 WLR 519 .... 8.3.51, 8.3.52, 10.3.5, 10.3.11, 10.4.5,
.... 21.3.6 17.7.7C

xxiv

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxiv 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
Builders Licensing Board v Sperway Constructions Calman v Commissioner of Police (1999) 59
(Syd) Pty Ltd (1976) 135 CLR 616; 51 ALD 366 .... 3.3.47
ALJR 260 .... 3.3.6C, 3.3.39, 3.3.40 Calvin v Carr [1979] 1 NSWLR 1; [1980]
Builders’ Registration Board v Rauber (1983) 47 AC 574 .... 11.3.21, 11.3.30C, 11.3.32C,
ALR 55 .... 11.5.27 16.1.17C
Building Construction Employees and Builders Cameron v Hogan (1934) 51 CLR 358 .... 2.5.4,
Labourers’ Federation v Minister for Industrial 2.5.5
Relations (1987) 7 NSWLR 372 .... 5.3.2 Campbell v MGN Ltd [2004] 2 AC 457
Building Professions Accreditation Corp .... 20.1.11
Tasmania Ltd v Minister for Infrastructure, Campbelltown City Council v Vegan (2006) 67
Energy and Resources [2005] TASSC 73 NSWLR 372 .... 21.1.30, 21.1.32
.... 13.2.23 Canada (Attorney-General) v Mossop [1993] 1
Bunbury v Fuller (1853) 9 Ex 111; 156 ER 47 SCR 554 .... 7.5.7
.... 13.3.13C Canberra Tradesmen’s Union Club Inc
Burke v Corruption and Crime Commission v Commissioner for Land and Planning
[2012] WASCA 49 .... 4.5.4 (1998) 147 FLR 291 .... 18.3.15
Burmah Oil Co (Burmah Trading) Ltd v Lord — v — (1999) 43 ALD 639 .... 18.4.13
Advocate [1965] AC 75 .... 2.3.13, 9.2.6E, Canns Pty Ltd v Commonwealth (1946) 71 CLR
9.2.19 210 .... 8.6.12
Burns v Australian National University (1982) 40 Canwest Global Communications Corporation
ALR 707 .... 2.4.34, 2.4.35, 2.4.47 v Treasurer of the Commonwealth (1997)
— v Corbett; Burns v Gaynor [2018] HCA 15 147 ALR 509 .... 21.1.28
.... 2.2.38, 2.2.43, 3.2.4, 3.2.5, 3.2.6C, 3.2.15 Carbines v Powell (1925) 36 CLR 88 .... 8.3.26,
— v — (2017) 343 ALR 690 .... 5.3.19 8.4.13C
Burragubba v Queensland (2016) 151 ALD 471 Carbotech-Australia Pty Ltd v Yates [2008]
.... 15.4.8 NSWSC 540 .... 11.5.13
Bushell v Repatriation Commission (1992) 175 Carlton & United Breweries Ltd v Castlemaine
CLR 408 .... 3.4.18C, 3.4.19, 3.4.25 Tooheys Ltd (1986) 161 CLR 543 .... 2.2.18
— v Secretary of State for Environment [1981] Carlton Football Club [1998] 2 VR 546
AC 75 .... 11.2.16C .... 2.5.15C
Buttes Gas & Oil Co v Hammer [1982] AC 888 Carltona Ltd v Commissioners of Works [1943]
.... 2.3.18C 2 All ER 560 .... 8.5.4, 8.5.5C, 8.5.6C,
BZC17 v Minister for Immigration and Border 9.3.10
Protection [2018] FCA 902 .... 13.2.35 Carmody, Re; Ex parte Glennan (2000) 173 ALR
145 .... 17.9.9
C Carmody, Re; Ex parte Glennan (2003) 198 ALR
C Inc v Australian Crime Commission (2008) 259 .... 2.4.59
106 ALD 453; 251 ALR 424 .... 10.3.6, Carmody v Mackellar (1997) 76 FCR 115
11.3.13 .... 15.4.7
— v — (2010) 113 ALD 226 .... 10.3.5 Carter v Minister for Aboriginal Affairs (2005)
Cadbury UK Ltd v Registrar of Trade Marks 143 FCR 383 .... 2.4.13
(2008) 107 ALD 316 .... 13.2.28 Case of Mines (1568) 1 Plowden 310 [75 ER 472
Cadia Holdings Pty Ltd v State of New South .... 9.2.7C
Wales (2010) 242 CLR 195; 269 ALR 204; Case of Proclamations (1611) 12 Co Rep 74
[2010] HCA 27 .... 9.2.5, 9.2.7C, 9.2.14 .... 9.2.14, 9.2.37
Cain v New South Wales Land and Housing Cassaniti v Croucher (2000) 48 NSWLR 623
Corporation (2014) 86 NSWLR 1 .... 14.2.4 .... 8.6.5
Cains v Jenkins (1979) 28 ALR 219 .... 11.4.32 Cassell v The Queen (2000) 201 CLR 189; 169
Callejo and Department of Immigration ALR 439 .... 8.5.25, 8.5.26C
and Citizenship, Re [2010] AATA 244 Castlemaine Tooheys Ltd v South Australia
.... 19.3.6C (1986) 161 CLR 148 .... 17.6.2

xxv

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxv 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

— v — (1990) 169 CLR 436 .... 4.4.24 Chevron USA Inc v Natural Resources Defense
Caterpillar of Australia Pty Ltd v Industrial Council Inc (1984) 467 US 837
Court of New South Wales (2009) 181 CLR .... 7.5.7–7.5.8, 7.5.9C, 7.5.10C–7.5.12
286; 78 NSWLR 43 .... 13.3.14, 17.2.7 Chief Commissioner of Police v McIntosh [2010]
CC Auto Port Pty Ltd v Minister for Works VSC 439 .... 19.2.20
(1965) 113 CLR 365 .... 10.2.15C Chief Constable of Sussex, Ex parte International
CCM v Western Sydney University [2016] Traders Ferry Ltd [1999] 2 AC 418
NSWCATAD 234 .... 20.3.3 .... 15.3.27
CDJ v VAJ (1998) 197 CLR 172 .... 3.3.43C Chief Executive Officer of Customs v Jiang
Central Queensland Land Council Aboriginal (2001) 111 FCR 395 .... 2.2.34
Corporation v Attorney-General (Cth) Chief of Navy v Angre (2016) 244 FCR 457
(2002) 116 FCR 390 .... 2.4.42, 16.4.14 .... 2.4.13, 17.9.11
Century Metals and Mining NL v Yeomans Chittick v Ackland (1984) 1 FCR 254 .... 2.4.47,
(1989) 40 FCR 564 .... 2.3.16 2.4.48, 2.4.50C
Century Yuasa Batteries Pty Ltd v Federal Chowdhary v Bayne (1999) 29 AAR 100 .... 2.4.27
Commissioner of Taxation (1997) 73 FCR Christian Youth Camps Ltd v Cobaw
528; 143 ALR 477 .... 2.4.27, 2.4.31C, Community Health Services Ltd (2014) 308
2.4.33 ALR 615 .... 11.5.19
Certain Children v Minister for Families and — v — (No 3) [2014] VSCA 113 .... 11.5.19
Children (No 2) [2017] VSC 251 .... 7.5.27 Christopher Ballam and Shire of Toodyay, Re
CGU Insurance Pty Ltd v Blakeley (2016) 259 [2009] WAICmr 4 .... 19.2.20
CLR 339 .... 2.3.6 Chu Kheng Lim v Minister for Immigration,
Chairperson, Aboriginal and Torres Strait Local Government and Ethnic Affairs
Islander Commission v Commonwealth (1992) 176 CLR 1; 110 ALR 97 .... 5.2.5,
Ombudsman (1995) 134 ALR 238; 39 ALD 5.3.22, 5.3.35, 5.3.36C, 5.3.37C, 5.3.38,
570 .... 4.3.21, 4.3.23C, 4.3.26 9.2.13, 9.2.16C
Chan Ta Srey v Minister for Immigration and Church of Scientology Inc v Woodward (1982)
Multicultural Affairs (2003) 134 FCR 308; 154 CLR 25; 43 ALR 587 .... 2.3.14, 2.4.59,
[2003] FCA 1292 .... 16.1.7, 17.5.6 5.2.17, 7.2.1, 8.2.6, 8.2.9C, 8.3.8, 8.3.46,
Chan Yee Kin v Minister for Immigration and 15.4.3, 16.3.17C
Ethnic Affairs (1989) 169 CLR 379; 87 Cianfrano v Director General, Premier’s
ALR 412; 63 ALJR 561 .... 2.4.8C, 17.7.7C Department [2006] NSWADT 137
Chand v Administrative Decisions Tribunal .... 19.2.20
[2011] NSWCA 131 .... 15.3.21 CIC Insurance Ltd v Bankstown Football Club
Chapman v Commissioner of Police, New Ltd (1997) 187 CLR 384 .... 8.3.5
South Wales Police [2004] NSWADT 35 Cirkovski and Secretary, Department of Social
.... 19.2.20 Security, Re (1992) 25 ALD 564 .... 3.3.33
Chapmans v Australian Stock Exchange Ltd Citipower Pty Ltd v Electricity Industry
(1996) 67 FCR 402 .... 2.4.48 Ombudsman (Vic) Ltd [1999] VSC 275
Chase Oyster Bar Pty Ltd v Hamo Industries .... 4.3.30
Pty Ltd (2010) 78 NSWLR 393 .... 17.2.3, Citizens to Preserve Overton Park v Volpe (1971)
17.2.11 401 US 402 .... 7.5.25, 7.5.30C
Cheltenham Park Residents Association Inc City of Doncaster and Templestowe and Minister
v Minister for Urban Development and for Community Services, Re (1987) 12 ALD
Planning (2009) 105 SASR 326 .... 8.5.8 13 .... 18.5.6
Chen v Minister for Immigration and Citizenship City of Port Adelaide Enfield v Bingham (2014)
[2011] FCAFC 56 .... 15.3.21 119 SASR 1 .... 4.3.27, 4.3.28, 17.2.5
— v Minister for Immigration and Ethnic Affairs City of Salisbury v Biganovsky (1990) 54 SASR
(1994) 48 FCR 591 .... 11.3.36C 117 .... 4.3.27
Cheryala v Minister for Immigration and Border City of Subiaco, The v Simpson MLA [2014]
Protection [2018] FCAFC 43 .... 8.4.25 WASC 493 .... 11.5.14

xxvi

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxvi 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
Civil Aviation Safety Authority v Central — v South Australia (1999) 74 SASR 200
Aviation Pty Ltd (2009) 108 ALD 329 .... 11.3.12
.... 21.2.12, 21.3.2 Colonial Bank of Australasia v Willan (1874) LR
— v — (2009) 179 FCR 554 .... 21.3.5 5 PC 417 .... 13.3.13C, 16.3.17C
— v Sydney Heli-Scenic Pty Ltd [2006] Colonial Sugar Refining Co Ltd v Melbourne
NSWCA 111 .... 12.7.2 Harbour Trust Commissioners [1927] AC
CJT15 v Minister for Immigration and Border 343 .... 8.3.34
Protection [2018] FCA 618 .... 13.2.4 Comcare v Lilley (2013) 216 FCR 214 .... 8.6.10
Clamback v Coombes (1986) 13 FCR 55 .... 2.5.22 Commercial Registrar of the Commercial Tribunal
Clements v Independent Indigenous Advisory of Western Australia, Re; Ex parte Investments
Committee (2003) 131 FCR 28 .... 13.5.9 Pty Ltd [2003] WASC 198 .... 21.1.25
— v Bull (1953) 88 CLR 572 .... 8.4.29C Commissioner for Australian Capital Territory
Clenae Pty Ltd v Australia & New Zealand Revenue v Alphaone Pty Ltd (1994) 49
Banking Group Ltd [1999] 2 VR 573 FCR 576 .... 11.4.10, 11.4.19
.... 11.5.28, 11.5.30C Commissioner of Australian Federal Police
Clough v Leahy (1904) 2 CLR 139 .... 8.2.8C, v Propend Finance Pty Ltd (1997) 188 CLR
9.2.9, 9.2.11, 9.2.12C, 9.2.13 501 .... 2.4.50C
Coal and Allied Operations Pty Ltd v Australian Commissioner of Police New South Wales
Industrial Relations Commission (2000) 203 v Gray (2009) 74 NSWLR 1 .... 11.2.15
CLR 194; 174 ALR 585 .... 3.3.40, 3.3.43C, Commissioner of Police (NSW) v Industrial
3.3.44, 3.3.45, 7.4.13, 16.4.10 Relations Commission (NSW) (2009) 185
Cockrell v Minister for Immigration and IR 458 .... 10.4.18
Citizenship (2008) 171 FCR 435 .... 12.4.9 Commissioner of Police v Barbaro (2001) 51
Coco v The Queen (1994) 179 CLR 427; 120 NSWLR 419 .... 8.6.5
ALR 415 .... 2.2.6, 5.2.8, 8.3.7, 8.3.9, 8.3.20, — v Tanos (1958) 98 CLR 383 .... 11.2.2,
8.3.26, 8.3.30, 8.3.31C, 8.3.32C, 8.3.34, 11.2.15, 11.2.19C, 11.3.23
9.2.13, 11.3.31C, 16.5.2, 20.2.29 Commissioner of State Revenue (Vic) v ACN
Colakovski v Australian Telecommunications 005 057 349 Pty Ltd (2017) 91 ALJR 349
Corporation [1991] FCA 152 .... 19.3.6C .... 17.4.12
Coldham, Re; Ex parte Brideson (No 2) (1990) — v Royal Insurance Aust Ltd (1994) 182 CLR
170 CLR 267 .... 3.3.43C 51; 126 ALR 1 .... 17.4.4, 17.4.11C
Cole v Cunningham (1983) 49 ALR 123 Commissioner of Taxation v A Taxpayer (2006)
.... 11.3.7 91 ALD 335 .... 13.2.31
Coleman v Liberal Party of Australia, New South — v AP Energy Investments Pty Ltd (2016) 341
Wales Division (No 2) (2007) 212 FLR 271 ALR 265 .... 13.5.7
.... 2.3.8 — v Cancer and Bowel Research Association
Collection Point Pty Ltd v Commissioner of (2013) 305 ALR 534 .... 3.2.53
Taxation (2013) 212 FCR 184 .... 19.2.9 — v Futuris Corporation Ltd (2008) 237 CLR
Collector of Customs (NSW) v Brian Lawlor 146; 247 ALR 605 .... 2.2.34, 2.4.59,
Automotive Pty Ltd (1979) 2 ALD 1; 24 13.4.11, 16.2.4, 16.2.5, 16.3.7
ALR 307; 41 FLR 338 .... 3.3.11C, 3.3.13, — Commissioner of Taxation v Jayasinghe
3.3.14C, 3.3.15, 3.3.21, 3.3.22, 5.3.33, [2017] HCA 26 .... 2.4.59
16.1.12 Commissioner, Australian Federal Police v Oke
Collector of Customs v Agfa-Gevaert (1996) 186 (2007) 159 FCR 441 .... 16.2.4
CLR 389; 141 ALR 59 .... 13.1.5, 13.5.10, Commonwealth Bank v Human Rights & Equal
13.5.13, 13.5.14, 13.5.16, 13.5.20C, 13.5.26 Opportunity Commission (1997) 50 ALD
— v Pozzolanic Enterprises Pty Ltd (1993) 43 360; 150 ALR 1 .... 8.3.12
FCR 280; 115 ALR 1 .... 7.5.20C, 13.5.10, — v Kojic (2016) 249 FCR 421 .... 8.3.52
13.5.14, 13.5.16, 13.5.20C Commonwealth of Australia (Department of
Collins v Repatriation Commission (1994) 33 Defence); Ex parte Marks (2000) 177 ALR
ALD 557 .... 12.4.8 491 .... 17.1.11

xxvii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxvii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Commonwealth v Anti-Discrimination Tribunal Cooper v Board of Works for the Wandsworth
(Tasmania) (2008) 169 FCR 85; 103 ALD 1 District (1863) 143 ER 414 .... 2.2.6,
.... 3.2.4, 3.2.48, 5.3.19, 8.2.13, 8.5.22, 8.5.25 11.1.8–11.1.10, 11.1.16, 11.1.18C, 11.1.19C,
— v BIS Cleanaway Ltd (2007) 214 FLR 271 11.2.1, 11.2.2, 11.2.16C, 11.4.2, 11.4.11,
.... 17.7.9 11.4.13, 16.1.6, 16.1.8
— v Colonial Combing, Spinning and Weaving Corneloup v Launceston City Council [2016]
Co Ltd (1922) 31 CLR 421 .... 8.3.44 FCA 974 .... 8.5.12
— v Grunseit (1943) 67 CLR 58 .... 2.4.39C, Cornerstone Legal Pty Ltd and Australian
2.4.40C, 5.3.7 Securities and Investment Commission
— v Mewett (1997) 191 CLR 471 .... 2.2.45 [2013] AICmr 71 .... 19.3.4
— v Northern Land Council (1993) 176 CLR Corporation of the City of Enfield
200 .... 2.3.14 v Development Assessment Commission
— v Okwume [2018] FCAFC 69 .... 8.3.52 (2000) 199 CLR 135; 60 ALD 342; 169
— v Tasmania (the Tasmanian Dam case) (1983) ALR 400 .... 1.3.7, 5.2.23, 5.2.24, 7.2.6,
158 CLR 1; 46 ALR 625 .... 8.4.2, 8.4.27C, 7.5.8, 7.5.10C, 7.5.13, 13.3.14, 13.3.15,
8.4.29C 13.3.17C, 17.1.13, 17.6.4, 17.7.2, 17.7.3,
— v Verwayen (1990) 170 CLR 394 .... 12.6.2, 17.7.6C, 17.9.1
17.6.7C Corrigan v Parliamentary Criminal Justice
— v Westwood (2007) 163 FCR 71 .... 2.2.45 Committee [2001] 2 Qd R 23 .... 2.4.61
Communications, Electrical, Electronic, Energy, Costello and Secretary, Department of Transport,
Information, Postal, Plumbing and Allied Re (1979) 2 ALD 934 .... 3.3.5, 3.3.33
Services Union v Abigroup Contractors Pty Cotterill v Minister for Immigration and Border
Ltd [2013] FCAFC 148 .... 11.4.11 Protection (2016) 240 FCR 29 .... 10.4.6,
Comptroller-General of Customs v Kawasaki 10.4.9, 15.3.5
Motors Pty Ltd (No 2) (1991) 32 FCR 243 Coulton v Holcombe (1986) 162 CLR 1
.... 16.1.22, 16.1.23, 17.8.8 .... 13.5.8C
Congoo v Minister for Immigration and Border Council of Civil Service Unions v Minister for
Protection (2015) 257 CLR 22 .... 8.3.53 the Civil Service [1985] AC 374; [1984]
Consolidated Edison Co v National Labour 3 All ER 935 .... 2.3.4E, 2.3.6, 2.3.8,
Relations Board (1938) 305 US 197 2.3.10C, 2.3.11C, 2.3.13, 2.5.8C, 2.5.9,
.... 3.4.13C 7.2.5C, 7.2.11, 7.2.18C, 8.2.5, 9.2.3, 9.2.9,
Construction, Forestry, Mining and Energy 9.2.18C, 9.2.37, 9.3.1, 9.3.2E, 9.3.3C, 9.3.4,
Union v Australian Industrial Relations 11.2.16C, 11.3.35, 12.6.8C, 15.2.3, 15.2.11,
Commission (2007) 157 FCR 260; 239 ALR 15.3.27, 15.3.29C
466 .... 17.2.18, 17.2.19 Council of the Shire of Hornsby v Danglade
— v Director of Fair Work Building Industry (1929) 29 SR (NSW) 118 .... 17.6.6C
Inspectorate (2016) 91 ALJR 1 .... 17.9.5 Coutts v Close [2014] FCA 19 .... 11.4.23
Control Investments Pty Ltd and Australian — v Commonwealth (1985) 157 CLR 91
Broadcasting Tribunal, Re (No 1) (1980) 3 .... 2.3.13, 2.4.29, 8.3.14, 11.2.15, 11.2.16C
ALD 74 .... 18.4.19 Cowell v Rosehill Racecourse Co Ltd (1937) 56
Control Investments Pty Ltd and Australian CLR 605 .... 2.5.7C
Broadcasting Tribunal, Re (No 2) (1981) 3 Cox and Department of Defence, Re (1990) 20
ALD 88 .... 3.3.2, 3.3.11C ALD 499 .... 19.2. 26
Coogee Esplanade Surf Motel Pty Ltd Cox v Minister for Immigration and
v Commonwealth (1976) 50 ALR 363 Multicultural and Indigenous Affairs (2003)
.... 9.3.10 143 NTR 10 .... 17.5.8
Cooney v Ku-ring-gai Corporation (1963) 114 COZ16 v Minister for Immigration and Border
CLR 582 .... 17.6.5, 17.6.6C, 17.7.6C, 17.9.2 Protection [2018] FCA 46 .... 21.2.16
Cooper Brookes (Wollongong) Pty Ltd v Federal CPCF v Minister for Immigration and Border
Commissioner of Taxation (1981) 147 CLR Protection (2015) 143 ALD 443; 316 ALR
297 .... 8.3.3 1; 89 ALJR 207; [2015] HCA 1 .... 2.2.45,

xxviii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxviii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
2.3.15, 2.4.59, 5.3.35, 5.3.38, 9.2.13, 9.2.15, Currie v Inland Revenue Commissioners of
9.2.16C, 11.2.15, 11.3.38C, 12.3.2, 12.3.6C, Taxation [1921] 2 KB 332 .... 13.5.27
12.5.8 Cypressvale Pty Ltd v Retail Shop Lease Tribunal
CQG15 v Minister for Immigration and Border [1996] 2 Qd R 462 .... 21.1.26, 21.1.27
Protection (2016) 70 AAR 413
.... 15.2.10 D
Craig v South Australia (1995) 184 CLR 163; 39 Dagli v Minister for Immigration and
ALD 193; 131 ALR 595 .... 1.4.4E, 7.2.20C, Multicultural and Indigenous Affairs (2003)
13.3.13C, 13.4.3, 16.1.13, 16.3.18C, 16.4.2, 133 FCR 541 .... 11.4.6
16.4.4, 16.4.5, 16.4.10, 16.4.11, 16.4.16, Daihatsu Aust Pty Ltd v Deputy Commissioner
16.4.17C, 16.4.18C, 17.1.4, 17.2.7, 17.2.8, of Taxation (2000) 182 ALR 239
17.2.12C, 17.2.14C, 17.2.16, 17.7.6C .... 15.3.25
CREEDNZ Inc v Governor-General [1981] 1 Dainford Ltd v Smith (1985) 155 CLR 342
NZLR 172 .... 2.3.11C .... 8.5.16
Crewdson v Central Sydney Area Health Service D’Amore v Independent Commission Against
[2002] NSWCA 345 .... 19.2.26 Corruption (ICAC) (2013) 303 ALR 242
Crimmins v Stevedoring Industry Finance .... 15.2.16
Committee (1999) 200 CLR 1 .... 2.2.37, DAO16 v Minister for Immigration and Border
14.1.6, 17.8.9 Protection [2018] FCAFC 2 .... 21.2.16
Croker v Deputy Registrar of the High Court of Dar v State Transit Authority of NSW (2007)
Australia [2003] FCA 34 .... 2.4.44 NSWLR 468 .... 16.4.11
Cromwell Property Securities Ltd v Financial Darby v Director of Public Prosecutions (2004)
Ombudsman Service Ltd [2014] VSCA 179 61 NSWLR 558 .... 9.2.23
.... 2.5.6, 2.5.15C Darling Casino Ltd v NSW Casino Control
Croome v Tasmania (1997) 191 CLR 119 Authority (1997) 191 CLR 602 .... 16.3.9,
.... 4.4.33, 18.1.2, 18.3.14 16.3.10, 16.3.17C
Croser, Re; Ex parte Rutherford [2003] WASCA Davies and Department of the Prime Minister
8 .... 21.2.7, 21.2.13, 21.2.15C and Cabinet [2013] AICmr 10 .... 19.2.20
Crowe and Department of the Treasury [2013] Davis v Commonwealth (1988) 166 CLR 79
AICmr 69 .... 19.3.3C .... 8.2.4, 9.2.9, 9.2.21C, 9.2.25, 9.2.30C
CSL Australia Pty Ltd v Minister for Dawkin v Antrobus (1879) 17 Ch D 615
Infrastructure and Transport (2014) 221 .... 11.1.19C
FCR 165 .... 8.3.2 De Silva v Minister for Immigration and
Cubillo v Commonwealth (2000) 103 FCR 1 Multicultural Affairs (1998) 89 FCR 502
.... 8.2.14 .... 8.4.25, 8.4.31
Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] Deing v Tarola [1993] 2 VR 163 .... 8.4.15
AC 520 .... 12.7.4C Deloitte Touche Tohmatsu v Australian
Cumberland County Council v Corben (1960) 77 Securities Commission (1995) 54 FCR 562
WN (NSW) 650 .... 17.6.6C .... 10.3.13
Cuming, Campbell Investments Pty Ltd — v — (1996) 136 ALR 453 .... 10.4.23
Prosecutor v Collector of Imposts (Vic) Denver Chemical Manufacturing
(1938) 60 CLR 741 .... 17.4.3 v Commissioner of Taxation (1949) 79 CLR
Cummeragunga Pty Ltd (in liq) v Aboriginal and 296 .... 21.3.4
Torres Strait Islander Commission (2004) Department of Defence and ‘W’ [2013] AICmr 2
139 FCR 73 .... 12.6.5 .... 19.2.30
Cunningham and Rural Adjustment and Finance Department of Immigration and Ethnic Affairs
Corporation, Re [1996] WAICmr 29 v Ram (1996) 41 ALD 517 .... 11.3.12
.... 19.2.20 Department of Industrial Relations v Forrest
Curragh Queensland Mining Ltd v Daniel (1992) (1990) 21 FCR 93 .... 8.6.11
34 FCR 212; 27 ALD 181 .... 2.4.9, 13.2.23, Department of Primary Industries and Energy
13.2.24, 13.2.26C, 13.2.27C, 13.3.4 v Collins (1992) 34 FCR 340 .... 12.4.8

xxix

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxix 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Deputy Commissioner of Taxation v Richard Drake and Minister for Immigration and Ethnic
Walter Pty Ltd (1995) 183 CLR 168 Affairs (No 2), Re (1979) 2 ALD 634
.... 5.3.55, 5.3.56, 16.3.17C, 17.1.14C .... 3.3.7, 12.1.5, 12.2.4, 12.2.7, 12.2.14C,
Diamond and Chief Executive Officer of the 12.2.17C, 12.2.22C, 12.5.3, 12.5.5C, 12.5.8,
Australian Curriculum, Assessment and 12.5.9C
Reporting Authority, Re [2014] AATA 707 Drake v Minister for Immigration and Ethnic
.... 19.2.9 Affairs (1979) 2 ALD 60; 24 ALR 577; 46
Dickinson v Perrignon [1973] 1 NSWLR 72 FLR 409 .... 3.2.15, 3.3.7, 3.3.8, 3.3.10C,
.... 17.1.4 3.3.11C, 3.3.25, 3.3.32C, 3.3.38, 3.4.16C,
Dietrich v R (1992) 177 CLR 292 .... 17.2.12C 5.3.47, 5.3.49C, 12.5.2, 12.5.5C
Dignan v Australian Steamships Pty Ltd (1931) Dranichnikov v Minister for Immigration and
45 CLR 188 .... 6.4.2 Multicultural Affairs (2003) 197 ALR 389
Dilatte v MacTiernan [2002] WASCA 100 .... 13.3.8
.... 15.3.22, 15.3.24 Dreamtech International Pty Ltd
Dillon v R [1982] AC 484 .... 8.2.12 v Commissioner of Taxation (2010) 72 FCR
Dimitrov v Supreme Court (Vic) (2017) 92 467 .... 13.5.15
ALJR 12 .... 17.1.10, 17.9.5 Dreyfus and Secretary, Attorney-General’s
Dingjan, Re; Ex parte Wagner (1995) 183 CLR Department, Re [2015] AATA 962
323 .... 16.5.6C .... 19.3.1, 19.3.3C
Director-General of Social Services v Chaney Du Pont (Aust) v Comptroller-General of
(1980) 3 ALD 161; 31 ALR 571; 47 FLR 80 Customs (1993) 30 ALD 829 .... 17.7.8
.... 2.4.8C, 3.2.52 Duffy v Da Rin (2014) 87 NSWLR 495
Director of Animal and Plant Quarantine .... 10.3.3
v Australian Pork Ltd (2005) 146 FCR 368; Duncan and Department of Health and Ageing,
88 ALD 325 .... 13.2.23, 15.3.6, 15.3.7C Re (2004) 83 ALD 520 .... 18.4.20
Director of Housing v Sudi [2011] VSCA 266 Duncan v Independent Commission Against
.... 3.2.4 Corruption (2014) 311 ALR 750 .... 4.5.4,
Director of Public Prosecutions v Smith [1991] 1 17.7.9
VR 63 .... 10.3.13 — v — (2015) 256 CLR 83 .... 5.3.17, 8.3.22
Ditfort, Re; Ex parte Deputy Commissioner of — v Ipp (2013) 304 ALR 359 .... 11.5.15
Taxation (NSW) (1988) 19 FCR 347; 83 — v McGuigan; McGuigan v ICAC; Kinghorn
ALR 265 .... 2.3.4E, 2.3.15, 9.2.6E v ICAC; Cascade Coal v ICAC (2014) 311
Dixon v Attorney-General (1987) 15 FCR 338 ALR 750 .... 17.7.9
.... 9.2.9 — v Theodore (1917) 23 CLR 510 .... 10.2.13C
Doctors’ Hospital and Minister of Health, Re Dunsmuir v New Brunswick [2008] 1 SCR 190
(1976) 68 DLR (3d) 220 .... 10.2.13C .... 7.5.7, 7.5.12, 7.5.25, 15.2.19
Doe v ABC [2007] VCC 281 .... 20.1.9 Dunstan v Orr (2008) 171 IR 135 .... 2.4.23
Doepgen v Mugarinya Community Association Durani v Minister for Immigration and Border
Incorporated [2014] WASCA 67 .... 11.4.32 Protection (2014) 314 ALR 130 .... 11.4.13
Donaghy v Council of the Law Society of NSW Durayappah v Fernando [1967] 2 AC 337
[2015] NSWCA 223 .... 11.5.19 .... 11.2.12, 11.2.15
Dorf Industries Pty Ltd v Toose (1994) 54 FCR Dutton v O’Shane (2003) 132 FCR 352
350 .... 2.5.10 .... 5.3.47
Dover District Council v CPRE Kent [2018] 1 Dyson v Attorney-General [1911] 1 KB 410
WLR 108 .... 21.1.21 .... 16.3.20C, 17.7.2, 17.7.4C, 18.3.14
Downey v Acting District Court Judge Boulton
(No 3) [2010] NSWCA 50 .... 16.4.10 E
Doyle on behalf of the Iman People 2 East West Airlines Ltd v Turner (2010) 78
v Queensland (2016) 151 ALD 269 .... 8.2.13 NSWLR 1 .... 13.5.12
Dr Bonham’s Case, Re (1610) 8 Co Rep 113b Eastman v Attorney-General (ACT) (2007) 210
.... 11.5.1 FLR 440 .... 2.3.13

xxx

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxx 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
— v Australian Capital Territory (2008) 163 Epic Energy (WA) Nominees Pty Ltd v Michael
ACTR 14 .... 2.4.15, 2.4.18 (2003) 27 WAR 515 .... 16.4.14
— v Besanko (2010) 244 FLR 262 .... 17.2.16 EQ and Federal Privacy Office of the Australian
— v Commissioner for Housing for the Information Commissioner (2004) 85 ALD
Australian Capital Territory (2006) 200 FLR 368 .... 20.2.16, 20.3.5
272 .... 12.6.9 Esber v Commonwealth (1992) 174 CLR 430;
— v R (2000) 203 CLR 1 .... 3.3.43C 106 ALR 577 .... 3.3.31, 3.3.32C, 3.3.33
— v R (2008) 166 FCR 579 .... 16.1.16 Esposito v Commonwealth of Australia (2015)
— v The Hon Besanko J [2009] ACTSC 10 235 FCR 1 .... 10.4.15, 17.1.12
.... 2.4.48 Estate and Trust Agencies (1927) Ltd
Easwaralingam v Director of Public Prosecutions v Singapore Improvement Trust (1937) AC
[2010] VSCA 353 .... 17.2.8 898 .... 7.2.19C
Ebner v Official Trustee in Bankruptcy (2000) Evans, Re; Ex parte Coffey [1971] 1 NSWLR
205 CLR 337; 63 ALD 577 .... 11.5.5, 434 .... 17.2.16
11.5.7, 11.5.9, 11.5.19, 11.5.23, 11.5.28, Evans v Donaldson (1909) 9 CLR 140 .... 12.2.18
11.5.30C, 11.5.31C, 11.5.32C, 11.5.33C — v Friemann (1981) 3 ALD 326 .... 2.4.34,
Eccleston and Department of Family Services 2.4.36, 2.4.47
and Aboriginal and Islander Affairs, Re — v Information Commissioner [2012] UKUT
(1993) 1 QAR 60 .... 19.2.11 313 (AAC) .... 19.3.5
Eckersley and Minister for Capital Territory, Re — v Marmont (1997) 42 NSWLR 70 .... 10.4.19
(1979) 2 ALD 303 .... 3.4.17 — v Minister for Immigration and Multicultural
Edelsten v Health Insurance Commission (1990) Affairs (2003) 78 ALD 65; 203 ALR 320
27 FCR 56; 21 ALD 710; 96 ALR 673 .... 16.5.4, 16.5.6C
.... 2.4.9, 2.4.15, 2.4.16C, 2.4.21, 2.4.22C, — v State of New South Wales (2008) 168 FCR
2.4.23 576; 104 ALD 234; 250 ALR 33 .... 2.2.13,
— v Wilcox (1988) 15 ALD 546; 83 ALR 99 4.4.1, 8.3.9, 8.3.20, 8.3.30, 8.3.32C, 8.3.34,
.... 15.3.9, 15.3.10C, 15.3.11 8.3.36, 8.4.2, 8.4.12, 10.3.5, 10.4.6
Edwards v Bairstow [1956] AC 14 .... 13.5.22C Eve Hemp Pty Limited v Secretary to the
— v Giudice (1999) 94 FCR 561 .... 21.1.27 Department of Health [2017] FCA 1051
Einfeld and Human Rights and Equal .... 10.3.6
Opportunity Commission, Re (2007) 96 Everfresh Seafoods Pty Ltd and Australian
ALD 441 .... 18.4.20 Fisheries Management Authority, Re (1997)
Electricity Supply Association of Australia Ltd 45 ALD 418 .... 12.5.11
v Australian Competition and Consumer Ex-Christmas Islanders Assoc Inc v Attorney-
Commission (2001) 113 FCR 230; 68 ALD General (2005) 149 FCR 170 .... 2.4.45
107; 189 ALR 109 .... 2.4.15, 2.4.17C, 14.3.5
EnergyAustralia Pty Ltd v CFMEU (2014) 140 F
ALD 263 .... 2.2.23, 17.2.19 FAI Insurances Ltd v Winneke (1982) 151
Enfield City Corporation v Development CLR 342; 41 ALR 1 .... 2.3.4E, 2.3.11C,
Assessment Commission (1997) 69 SASR 5.2.17, 7.4.11, 8.3.9, 8.3.15, 11.2.13, 11.2.15,
99 .... 17.6.4, 17.7.2, 17.7.3, 17.7.6C, 17.9.1 11.2.16C, 11.2.17C, 11.2.18C, 11.3.1,
Enichem ANIC Srl v Anti-Dumping Authority 11.3.7, 11.4.27, 11.4.31, 17.2.16, 17.7.6C
(1992) 29 ALD 431 .... 15.3.18 Falzon v Minister for Immigration and Border
Entick v Carrington (1765) 19 State Tr 1030; 2 Protection [2018] HCA 2 .... 2.2.32, 5.3.38
Wils 275; 95 ER 807 .... 5.2.5, 8.2.6, 8.2.7C, Fardon v Attorney-General (Qld) (2004) 223
8.3.31C CLR 575 .... 5.3.13, 5.3.16C, 5.3.18,
Environment East Gippsland Inc v VicForests 5.3.42C, 5.3.51C
(2010) 30 VR 1 .... 14.3.4 Fares Rural Meat and Livestock Co Pty
Epeabaka v Minister for Immigration and Ltd v Australian Meat and Livestock
Multicultural Affairs (1997) 150 ALR 397 Corporation (1990) 19 ALD 731
.... 3.4.12, 3.4.15, 3.4.18C .... 15.2.18C, 15.3.1

xxxi

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxxi 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Farnaby and Military Rehabilitation and Foley v Padley (1984) 154 CLR 349; 54 ALR 609
Compensation Tribunal, Re (2007) 97 ALD .... 8.4.4, 8.4.16, 8.4.18C, 16.5.5
788 .... 3.2.9, 3.4.3 Foord v Whiddett (1985) 60 ALR 269 .... 17.9.11
Faulkner v Conwell (1989) 21 FCR 41 .... 21.3.7 Footscray Corporation v Maize Products Pty Ltd
Fay v Moia (1963) 372 US 391 .... 17.5.5C (1943) 67 CLR 301 .... 8.4.5
‘FD’ and Department of Immigration and Border Forbes v New South Wales Trotting Club Ltd
Protection [2015] AICmr 22 .... 19.2.26 (1979) 143 CLR 242 .... 2.5.4, 2.5.6, 2.5.7C,
Federal Airports Corporation v Aerolineas 2.5.9, 16.1.17C
Argentinas (1997) 76 FCR 582; 50 ALD Fordham v Evans (1987) 12 ALD 522 .... 18.5.6
54; 147 ALR 649 .... 2.4.35, 2.4.38, 2.4.39C, Forge v Australian Securities and Investments
2.4.42 Commission (2006) 228 CLR 45 .... 5.3.16C
Federal Commissioner of Taxation v Biga Formosa v Secretary, Department of Social Security
Nominees Pty Ltd [1988] VR 1006 (1988) 46 FCR 117; 81 ALR 687 .... 12.6.9
.... 14.1.3, 14.4.4C, 18.4.3 Forrest & Forrest Pty Ltd v Minister for
— v Broken Hill South Ltd (Broken Hill South Mines and Petroleum [2018] WASCA 32
Case) (1941) 65 CLR 150 .... 13.5.21C .... 3.3.42, 3.3.44
— v Official Liquidator of F O Farley Ltd (in — v Wilson (2017) 346 ALR 1 .... 8.3.8
Liq) (1940) 63 CLR 278 .... 9.2.25 Forster, Ex parte; University of Sydney, Re [1963]
— v Raptis (1989) 20 ATR 1262 .... 13.5.8C SR (NSW) 723 .... 2.4.51, 8.5.4, 8.5.5C
Felton v Mulligan (1971) 124 CLR 367 .... 2.2.12 Forster v Jododex Australia Pty Ltd (1972) 127
Fencott v Muller (1983) 152 CLR 570; 57 ALJR CLR 421; [1972–73] ALR 1303 .... 2.3.20,
317 .... 2.2.24C, 2.3.9C 2.4.8C, 17.7.2, 17.7.3, 17.7.5C
Ferdinands v Attorney-General (SA) [2007] Fortune and Secretary, Department of Education,
SASC 53 .... 2.3.13 Employment and Workplace Relations, Re
Fernandes and National Archives of Australia (2010) 51 AAR 481 .... 11.5.19
[2014] AATA 180 .... 19.2.33 Fox v Australian Industrial Relations Commission
‘FG’ and National Archives of Australia [2015] (2007) 97 ALD 617 .... 16.4.16
AICmr 26 .... 19.2.3, 19.3.1, 19.3.6C — v Percy (2003) 214 CLR 118 .... 3.3.40, 3.3.45
Filo v Pharmacy Board of NSW (1975) 3 Foxtel Management Pty Ltd v Australian
NSWDCR 269 .... 7.5.14 Competition & Consumer Commission
Financial Services Complaints Ltd v Chief (2000) 173 ALR 362 .... 6.3.6
Ombudsman [2018] NZCA 27 .... 4.3.4 Free Lanka Insurance Co Ltd v Ranasinghe
Fiorentino v Companies Auditors and [1964] AC 541 .... 3.3.32C
Liquidators Disciplinary Board [2014] FCA Freeman v Secretary, Department of Social Security
641 .... 15.2.16, 15.2.19 (1988) 19 FCR 342 .... 3.3.11C, 3.3.29
Fish v Solution 6 Holdings Ltd (2006) 225 CLR Frieda and Geoffrey, Re (2009) 40 FLR 608
180 .... 17.3.3 .... 17.2.7
Fisher v Keane [1879] 11 Ch D 353 .... 11.1.19C, Friends of Elliston — Environment &
11.3.4C Conservation Inc v SA (2007) 96 SASR 246
FJ Bloemen Pty Ltd v Federal Commissioner of .... 10.2.1
Taxation (1981) 147 CLR 360 .... 15.3.10C Frost v Kourouche (2014) 86 NSWLR 214
Flaherty v Secretary, Department of Health .... 11.4.26
and Ageing (2010) 184 FCR 564; [2010] FTZK v Minister for Immigration and Border
FCAFC 67 .... 16.1.24 Protection (2014) 310 ALR 1; [2014] HCA
Fleming v The Queen (1998) 197 CLR 250 26 .... 3.4.14, 13.2.31
.... 8.3.6
Fletcher v Nott (1938) 60 CLR 55 .... 9.2.18C G
Flinn v James McEwan & Co Pty Ltd [1991] 2 Gabrielsen v Nurses Board of South Australia
VR 434 .... 6.3.6 (2006) 90 ALD 695 .... 11.5.21
‘FM’ and Department of Foreign Affairs and Gadon v Police Review Board [2014] TASSC 23
Trade [2015] AICmr 31 .... 19.2.20 .... 3.3.20, 3.3.47

xxxii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxxii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
Gales Holdings Pty Ltd v Minister for — v Dillon (No 2) [1977] VR 151 .... 4.3.24
Infrastructure and Planning (2006) 69 Glennan v Commissioner of Taxation (2003) 198
NSWLR 156 .... 10.4.26 ALR 250 .... 17.9.9
Galluzzo v Little [2013] NSWCA 116 .... 11.4.31 Gold Coast City Council By-Laws, Re [1994] 1
GAR v Attorney-General of NSW & Supreme Qd R .... 8.4.6, 8.4.9C
Court of NSW [2017] NSWCA 47 Golden-Brown v Hunt (1972) 19 FLR 438
.... 11.5.5 .... 6.3.2, 6.3.5, 6.5.1, 8.4.2
Garde-Wilson v Legal Services Board (2008) 19 Goldie v Commonwealth (2002) 117 FCR
VR 398 .... 11.3.29 566; 188 ALR 708 .... 5.2.9, 8.3.35, 8.3.55,
Gardner v Dairy Industry Authority of NSW 8.3.58C, 15.3.19, 16.1.6
(1977) 18 ALR 55 .... 17.7.9 Goodman v Motor Accidents Authority of NSW
Garrett v Nicholson (1999) 21 WAR 226 (2009) 53 MVR 420 .... 7.4.16, 17.2.5
.... 21.2.6 Goodson and Secretary, Department of
— v Commissioner of Taxation (2014) 147 ALD Employment, Education, Training and Youth
588 .... 13.5.6 Affairs, Re (1996) 42 ALD 651 .... 12.5.4,
Gaudie v Local Court of NSW [2013] NSWSC 12.5.6C, 12.5.8, 12.5.13
1425 .... 11.5.15 Goodwin v Vietnam Veterans Motor Cycle Club
Gedeon v Commissioner of the New South Australia NSW Chapter Inc (2008) 72
Wales Crime Commission (2008) 236 CLR NSWLR 224 .... 2.5.4
120 .... 13.3.14 Google v Vidal-Hall [2016] QB 1003 .... 20.1.11
General Newspapers Pty Ltd v Telstra Corporation Gould v Magarey (2007) 231 CLR 350....
(1993) 45 FCR 164 .... 2.4.53, 2.5.20 2.5.14C
George v Rockett (1990) 170 CLR 104; 93 ALR Gouriet v Union of Post Office Workers [1978]
483 .... 7.4.12, 8.3.49, 8.3.55, 8.3.56C, 16.3.7 AC 435 .... 14.4.7, 18.2.3C, 18.4.23C, 18.5.4
Gerah Imports Pty Ltd v Minister for Industry, Governor, Goulburn Correctional Centre, Re;
Technology and Commerce (1987) 17 FCR Ex parte Eastman (1999) 200 CLR 322
1; 14 ALD 351 .... 12.1.5, 12.2.21, 12.2.22C, .... 8.5.25
12.2.23C Graham v Minister for Immigration and Border
Gerhardy v Brown (1985) 59 CLR 70 .... 4.4.14, Protection (2017) 347 ALR 350; 91 ALJR
4.4.29 890; [2017] HCA 33 .... 2.2.43, 5.3.17,
Gerlach v Clifton Bricks Pty Ltd (2002) 209 5.3.56, 5.3.58C, 5.3.59, 5.3.61, 17.1.16
CLR 478 .... 2.5.12C Greater Wollongong City Council v Jones [1955]
GG v Australian Crime Commission (2010) 182 1 LGRA 342 .... 17.6.6C
FCR 513 .... 13.4.7 Green v Daniels (1977) 13 ALR 1; 51 ALJR 463
Gibson v Minister for Finance, Natural Resources .... 2.1.1, 2.2.45, 7.2.2, 7.2.4C, 7.2.6, 7.2.25,
and the Arts (2012) 192 LGERA 118 8.5.5C, 10.3.7, 12.1.2, 12.1.3, 12.2.3, 13.3.11
.... 10.4.23 Greenham and Minister for Capital Territory, Re
Giller v Procopets (2008) 24 VR 1; [2008] VSCA (1979) 2 ALD 137 .... 3.3.5, 3.3.6C, 3.3.23,
236 .... 20.1.9 3.3.25, 3.3.38
Giuseppe v Registrar of Aboriginal Corporations Greg Finlayson and Family Court of Australia
(2007) 160 FCR 465 .... 7.5.15 [1998] AATA 744 .... 19.2.20
GJ Coles & Co Ltd v Retail Trade Industrial Greiner v Independent Commission Against
Tribunal (1986) 7 NSWLR 503 .... 8.3.24C, Corruption (1992) 28 NSWLR 125
8.5.18, 8.5.24, 8.5.26C .... 7.4.12, 8.3.55, 8.3.59, 17.2.6
Glasshouse Mountains Gubbi Gubbi People Griffin v Resource Management and Planning
v Native Title Tribunal (2008) 169 FCR 13 Appeal Tribunal and Christie (2010) 19 Tas
.... 2.4.13 R 424; [2010] TASSC 8 .... 6.1.3
GlaxoSmithKline Australia Pty Ltd v Reckitt Griffith University v Tang (2005) 221 CLR 99;
Benckiser Healthcare (UK) Limited [2013] 213 ALR 724; 79 ALJR 627 .... 2.4.11,
FCAFC 150 .... 11.5.17 2.4.47, 2.4.49, 2.4.50C, 2.4.51, 2.4.52,
Glenister v Dillon [1976] VR 550 .... 4.3.24, 4.3.25 2.4.55, 2.4.60, 2.4.61

xxxiii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxxiii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Grimshaw, Re; Ex parte Australian Telephone Harding v University of NSW [2002] NSWCA
and Phonogram Officers’ Association (1986) 325 .... 2.4.51
60 ALJR 588 .... 17.1.14C Harelkin v University of Regina [1979] 2 SCR
Grocon Constructors Pty Ltd v Planit Cocciardi 561 .... 16.1.17C
Joint Venture (No 2) (2009) 26 VR 172 Harris v Bryce (1993) 41 FCR 388 .... 2.3.20
.... 17.2.5 — v Caladine (1991) 172 CLR 84 .... 16.4.1
Grollo v Palmer (1995) 184 CLR 348 .... 5.3.48, — v Repatriation Commission (2000) 62 ALD
5.3.50C 161 .... 7.2.26
Gronow v Gronow (1979) 144 CLR 513 Haritos v Federal Commissioner of Taxation
.... 10.4.13C (2015) 233 FCR 315 .... 13.5.7, 13.5.8C,
Grosse v Purvis (2003) Aust Torts Reports 81- 13.5.9
706; [2003] QDC 151 .... 20.1.9 Harrison v Melhem (2008) 72 NSWLR 380
GTE (Australia) Pty Ltd v Brown (1986) 14 .... 8.3.20
FCR 309 .... 10.4.7, 13.3.3C, 13.3.4, 15.3.15 Haskins v The Commonwealth (2011) 244 CLR
Gutierrez-Brizuela v Lynch, 834 F 3d 1142, 1152 22 .... 12.3.6C
(10th Cir, 2016) .... 7.5.11 Hatfield and Comcare, Re [2010] AATA 848
Gypsy Jokers Motorcycle Club Inc .... 11.3.35
v Commissioner of Police (2008) 234 CLR Hawker Pacific Pty Ltd v Freeland (1983) 52
532 .... 5.3.16C, 5.3.44 ALR 185 .... 18.3.15
Hawke’s Bay Raw Milk Producers Co-operative
H Co Pty Ltd v New Zealand Milk Board
H A Bachrach Pty Ltd v Queensland (1998) 195 [1961] NZLR 218 .... 8.5.16
CLR 547 .... 5.3.18 Hayes v Federal Commissioner of Taxation
Habib v Commonwealth (2010) 183 FCR 62 (1956) 96 CLR 47 .... 13.5.21C
.... 2.3.15 Heatley v Tasmanian Racing and Gaming
— v Commonwealth (No 2) (2009) 175 FCR 350 Commission (1977) 137 CLR 487
.... 9.2.24 .... 2.5.7C, 11.2.16C, 11.3.7
— v Director-General of Security [2009] Hebburn Ltd, Ex parte; Kearsley Shire Council,
FCAFC 48 .... 11.3.37C Re (1947) 47 SR (NSW) 416 .... 7.2.11,
— v Minister for Foreign Affairs and Trade 7.2.19C, 10.1.2, 13.2.8, 16.1.20C
(2010) 192 FCR 148 .... 12.2.19 Hedley Byrne & Co Ltd v Heller & Partners Ltd
Hagedorn v Department of Social Security [1964] AC 465 .... 13.5.20C
(1996) 44 ALD 274 .... 17.7.8 Heerey, Re; Ex parte Heinrich (2001) 185 ALR
Haines and Australian Fisheries Management 106 .... 17.9.9
Authority, Re (1996) 43 ALD 83 Helicopter Utilities Pty Ltd v Australian National
.... 12.5.13 Airlines Commission (1961) 80 WN
Hall v New South Wales Trotting Club Ltd (NSW) 48 .... 18.2.3C
[1977] 1 NSWLR 378 .... 2.5.4, 11.5.14 Hennessy and Secretary to Department of Social
Hamblin v Duffy (1981) 3 ALD 153 .... 2.4.34 Security, Re (1985) 7 ALN N113 .... 3.4.4,
Hamdan v Rumsfeld, 126 S Ct 2749 (2006) 3.4.5C
.... 17.5.9 Herscu v The Queen (1991) 173 CLR 276; 103
Hancock v Executive Director of Public Health ALR 1 .... 8.3.23, 8.3.24C
[2008] WASC 224 .... 21.1.30 HEST Australia Ltd v Sykley (2005) 147 FCR
Haneef v Minister for Immigration and 248 .... 18.4.13
Citizenship (2007) 161 FCR 40 .... 5.2.12, Heyward v Minister for Immigration and
10.2.17, 10.3.25, 10.4.17 Citizenship (2009) 113 ALD 65 .... 11.4.34
Haoucher v Minister for Immigration and Ethnic Hicks v Ruddock (2007) 156 FCR 574; 96 ALD
Affairs (1990) 169 CLR 648; 19 ALD 577; 321 .... 2.3.15, 2.3.18C, 9.3.4, 17.1.2, 17.1.6,
93 ALR 51 .... 11.2.8, 11.3.7, 12.2.23C 17.5.1, 17.5.3, 17.5.5C, 17.5.9
Harburg Investments Pty Ltd v Mackenroth Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd
[2005] 2 Qd R 433 .... 7.5.16, 10.3.15 (2007) 156 FCR 501 .... 5.3.44

xxxiv

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxxiv 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
Hii v Commissioner of Taxation (2015) 230 FCR House v The King (1936) 55 CLR 499; [1936]
385 .... 15.4.13 HCA 40 .... 2.5.15C, 7.2.7C, 15.2.18C
Hill v Green (1999) 48 NSWLR 161 .... 11.3.29, Houssein v Department of Industrial Relations
11.3.30C, 13.3.7 and Technology (1982) 148 CLR 88; 38
Hilton v Wells (1985) 157 CLR 57 .... 5.3.48, ALR 577; 56 ALJR 217; [1981] AC 2
5.3.50C .... 16.3.7, 16.3.13C, 16.3.15C
Hindi v Minister for Immigration and Ethnic Howard and the Treasurer, Re (1985) 7 ALD 626
Affairs (1988) 20 FCR 1; 16 ALD 526; .... 19.2.18
91 ALR 586 .... 10.4.6, 10.4.9, 10.4.22C, Howells v Nagrad Nominees Pty Ltd (1982) 66
10.4.23, 10.4.27 FLR 169; 41 ALR 283 .... 12.2.9, 12.4.4C
Hinton v Alpha Westmead Private Hospital HTV Ltd v Price Commission [1976] ICR 170
(2016) 242 FCR 1 .... 11.5.15 .... 15.3.23C
HK (An Infant), Re [1967] 2 QB 617 Huang v Secretary of State for the Home
.... 11.2.16C Department [2007] 2 AC 167 .... 15.3.27
H Lavender & Son Ltd v Minister of Housing Huddart, Parker & Co Pty Ltd v Moorehead
and Local Government [1970] 3 All ER 871 (1909) 8 CLR 330 .... 5.3.22, 5.3.28C
.... 12.2.18 Hughes Aircraft Systems International
Hneidi v Minister for Immigration and v Airservices Australia (1997) 76 FCR 151
Citizenship (2010) 182 FCR 115; [2010] .... 2.5.23, 12.4.7, 12.6.1
FCAFC 20 .... 12.2.7, 12.5.4, 12.5.8, Humane Society International Inc v Kyodo
12.5.9C, 12.5.10 Senpaku Kaisha Ltd (2006) 154 FCR 425
Hockey v Yelland (1984) 157 CLR 124; 56 ALR .... 2.3.15
215 .... 16.3.4, 16.3.7, 16.3.13C, 17.2.12C Hunter Resources Ltd v Melville (1988) 164
Hocking v Medical Board of Australia [2014] CLR 234 .... 16.2.10C
ACTSC 48 .... 3.3.33 Hunter Valley Developments Pty Ltd v Cohen
Hoffman-La Roche and Co AG v Secretary of (1984) 3 FCR 344 .... 17.1.12
State for Trade and Industry [1975] AC 295 Hunter’s Hill Council v Minister for Local
.... 16.1.12–16.1.14, 16.1.18C Government (2017) 224 LGERA 1
Hood v Secretary, Department of Families, .... 11.4.25
Housing, Community Services and Hurt v Rossall (1982) 43 ALR 252 .... 11.4.34
Indigenous Affairs [2010] FCA 555 Hussain v Minister for Foreign Affairs (2008) 103
.... 3.4.11, 13.2.29 ALD 66; 169 FCR 241 .... 13.5.8C
Hope v Bathurst City Council (1980) 144 Hutchins v DCT (1996) 65 FCR 269
CLR 1; 29 ALR 577 .... 13.5.10, 13.5.15, .... 2.4.31C, 2.4.53
13.5.21C, 13.5.22C, 13.5.27 Huynh v Minister for Immigration and Border
Hospital Benefit Fund of Western Australia Inc, Protection (2015) 232 FCR 497 .... 15.2.10
Re (1992) 28 ALD 25 .... 15.4.1
Hospital Benefit Fund of Western Australia I
Inc v Minister for Health, Housing and Ibeneweka v Egbuna [1964] 1 WLR 219
Community Services (1992) 39 FCR 225 .... 17.7.5C
.... 3.3.30 ICM Agriculture Pty Ltd v Commonwealth
Hossain v Minister for Immigration and Border (2009) 240 CLR 140 .... 10.3.11
Protection [2018] HCA 34 .... 7.2.13, ID, PF and DV v Director-General, Dept of
7.2.21C, 11.4.6, 11.4.7C, 11.4.8, 16.4.2, Juvenile Justice (2008) 73 NSWLR 158
16.4.12, 16.4.16, 16.4.19C .... 12.2.18
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR Immigration & Naturalization Service
149; 134 ALR 469 .... 2.3.20, 17.2.3–17.2.6, v Cardoza-Fonseca (1987) 480 US 421
17.2.13C, 17.2.15 .... 7.5.11
— v — (2002) 210 CLR 438; 70 ALD 314; Income Tax Special Commissioners v Linsleys
93 ALR 90; [2002] HCA 51 .... 1.3.25, (Established 1894) Ltd [1958] AC 569
1.3.28C, 11.3.19, 11.5.19, 11.5.23, 11.5.35C .... 14.4.3C

xxxv

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxxv 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Independent Commission Against Corruption Jebb v Repatriation Commission (1988) 80 ALR
v Cunneen (2015) 318 ALR 391; 89 ALJR 329 .... 3.3.26
475; [2015] HCA 14 .... 4.5.4, 5.2.5, 5.2.8, Jetopay Pty Ltd and Australian Fisheries
5.3.17, 8.2.6, 8.2.10C, 8.3.34, 8.3.37, 10.2.7 Management Authority, Re (1993) 32 ALD
Independent FM Radio Pty Ltd v Australian 209 .... 12.5.4, 12.5.7C, 12.5.8
Broadcasting Tribunal (1989) 17 ALD 529 Jewel Food Stores (1994) 85 LGERA 62; 122
.... 13.3.6, 15.3.17 FLR 269 .... 18.3.16C
Independent Schools’ Staff Association (ACT), JL Holdings Pty Ltd v Queensland [1998] FCA
Re; Ex parte Hubert (1986) 60 ALJR 458 220 .... 12.6.5
.... 16.4.10 John Fairfax & Sons Ltd v Australian
Industrial Equity Ltd v Deputy Commissioner of Telecommunications Commission [1977] 2
Taxation (1990) 170 CLR 649 .... 10.2.9 NSWLR 400 .... 17.4.7, 17.4.15, 17.6.1
Initiative and Referendum Act, Re [1919] AC — v Police Tribunal of NSW (1986) 5 NSWLR
935 .... 5.3.5C 465 .... 18.4.7
Inland Revenue Commissioners v National John Holland Rail Pty Ltd v Comcare (2011) 276
Federation of Self-Employed & Small ALR 221 .... 11.5.13
Businesses Ltd (Fleet Street casuals case) John Holman & Co Pty Ltd and Minister for
[1982] AC 617 .... 14.4.3C, 14.4.4C, Primary Industry, Re (1983) 5 ALN N219
15.3.23C, 17.4.11C, 18.4.3 .... 12.5.11
— v Rossminster Ltd [1980] AC 952 (HL) John v Rees [1969] 2 All ER 274 .... 11.1.8,
.... 8.3.49 11.1.10, 11.1.11C
Institute of Patent Agents v Lockwood [1894] Johns v Australian Securities Commission (1993)
AC 347 .... 10.2.23 178 CLR 408 .... 11.3.36C, 17.8.3
Isbester v Knox City Council (2015) 89 ALJR Johnson Tiles Pty Ltd v Esso Australia Pty Ltd
609; [2015] HCA 20 .... 11.5.14, 11.5.32C (2000) 104 FCR 564 .... 2.2.18
IW v City of Perth (1997) 191 CLR 1; 146 ALR Johnson v Director-General of Social Welfare
696 .... 4.4.24, 10.2.21 (Vic) (1976) 135 CLR 92 .... 8.3.46
— v Director of Consumer Affairs Victoria
J [2011] VSC 595 .... 8.2.13, 8.3.22
Jackson v Goldsmith (1950) 81 CLR 446 .... 16.1.16 — v Federal Commissioner of Taxation (1986) 11
— v Sterling Industries Ltd (1986) 12 FCR 267 FCR 351 .... 7.2.25
.... 2.2.47 — v Johnson (2000) 201 CLR 488 .... 11.5.11,
Jadwan Pty Ltd v Secretary, Department of 11.5.18, 11.5.23, 11.5.24, 11.5.29, 11.5.33C
Health and Aged Care (2003) 145 FCR 1; — v Kent (1975) 132 CLR 164 .... 8.3.27C,
204 ALR 55 .... 16.1.12, 16.1.28C, 16.1.26, 9.2.9
16.1.29, 16.1.31, 16.2.8, 16.4.10 — v Miller (1937) 59 CLR 467 .... 11.4.12
Jaffarie v Director General of Security (2014) 226 — v Veterans’ Review Board [2006] FCAFC 15
FCR 505; 143 ALD 596; 313 ALR 593; .... 8.5.3
[2014] FCAFC 102 .... 11.2.15, 11.3.35, Jomal Pty Ltd v Commercial & Consumer
11.3.37C, 11.4.23 Tribunal [2009] QSC 3 .... 2.4.44
Jago v District Court of New South Wales (1989) Jones v Cunningham (1962) 28 USC 224
168 CLR 23 .... 7.4.13 .... 17.5.1
Jagroop v Minister for Immigration and Border — v Dunkel (1959) 101 CLR 298 .... 3.4.21,
Protection (2016) 241 FCR 461 .... 2.4.35 10.3.26, 10.4.17
Jarratt v Commissioner of Police (NSW) (2005) — v Office of the Australian Information
224 CLR 44; 221 ALR 95; 79 ALJR 1581 Commissioner [2014] FCA 285 .... 8.3.54,
.... 9.2.5, 9.2.15, 9.2.17, 9.2.18C, 11.1.9, 15.2.10
11.1.10, 11.1.20C, 11.2.2, 11.2.6, 11.2.15 — v Swansea City Council [1990] 1 WLR 54
Jayasinghe v Minister for Immigration and .... 2.5.23
Ethnic Affairs (1997) 48 ALD 265 Jonsson and Marine Council (No 2), Re (1990)
.... 16.1.21 12 AAR 323 .... 5.3.33

xxxvi

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxxvi 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
Joyce E Shewcroft and Australian Broadcasting Kentish Council v Wood (2011) 21 Tas R 59
Corporation, Re [1985] AATA 42 .... 2.4.44
.... 19.2.20 Keyu v Secretary of State for Foreign and
JRL, Re; Ex parte CJL (1986) 161 CLR 342 Commonwealth Affairs [2016] AC 1355
.... 11.5.13, 11.5.33C .... 15.3.27, 15.3.29C
Judiciary and Navigation Acts, Re (1921) 29 CLR Khan v The Minister for Immigration and Ethnic
257 .... 2.3.9C, 5.3.5C, 5.3.46, 18.2.8 Affairs (Gummow J, 11 December 1987,
Jumbunna Coal Mine NL v Victorian Coal unreported) .... 10.4.22C, 10.4.25C
Miners’ Assoc (1908) 6 CLR 309 .... 8.3.21 Khera v Law Society of New South Wales (LSD)
Jungarrayi v Olney (1992) 34 FCR 496 .... 8.3.12 [2005] NSWADTAP 29 .... 11.5.14
Jurecek v Director of Transport Safety Victoria Khuu & Lee Pty Ltd v Corporation of the City
[2016] VSC 285 .... 20.3.1 of Adelaide (2011) 110 SASR 235 .... 2.5.13
Jurkovic v Port Adelaide Corporation (1979) 23 Kierath, Minister for Heritage; Ex parte City
SASR 434 .... 8.5.20 of Fremantle, Re (2000) 22 WAR 342
.... 14.2.3
K Kindimindi Investments Pty Ltd v Lane Cove
K & S Lake City Freighters Pty Ltd v Gordon & Council (2006) 143 LGERA 27 .... 13.3.4
Gotch Ltd (1985) 157 CLR 309 .... 8.3.2 King v Carter; Ex parte Kisch (1934) 52 CLR
‘K’ and Department of Immigration and 221 .... 17.5.5C
Citizenship [2012] AICmr 20 .... 19.2.26 — v Director of Housing [2013] TASFC 9
K-Generation Pty Ltd v Liquor Licensing Court .... 2.4.53
(2007) 99 SASR 58 .... 11.3.23 — v Secretary of State for Home Affairs; Ex parte
— v — (2009) 237 CLR 501 .... 3.2.6C, 7.4.2, O’Brien (1923) 2 KB 361 .... 17.5.5C
8.3.28, 11.3.23 King Gee Clothing Pty Ltd v Commonwealth
Kable v Director of Public Prosecutions (NSW) (1945) 71 CLR 184 .... 8.6.7, 8.6.8C, 8.6.9,
(1996) 189 CLR 51 .... 2.2.41, 5.3.2, 5.3.13, 8.6.12
5.3.16C, 5.3.17, 5.3.20, 5.3.21, 16.1.15C King-Brooks v Roberts (1991) 5 WAR 500
Kabourakis v Medical Practitioners Board of .... 14.4.8
Victoria (2006) 25 VAR 449 .... 16.1.21 Kingham v Cole (2002) 118 FCR 289 .... 9.2.9
Kaldas v Barbour [2017] NSWCA 275; 326 FLR Kinsey and Veterans’ Review Board, Re (1992) 29
122 .... 4.3.29, 16.3.12, 16.3.20C, 17.2.6 ALD 109 .... 8.5.15
— v — [2016] NSWSC 1880 .... 4.3.29 Kioa v West (1984) 4 FCR 40 .... 8.3.39, 8.3.40
Kalil v Bray [1977] 1 NSWLR 256 .... 7.5.14 — v — (1985) 159 CLR 550; 62 ALR 321
Kamha v Australian Prudential Regulation .... 2.3.11C, 7.2.9, 7.3.8, 8.3.39, 10.4.3,
Authority (2007) 98 ALD 49 .... 17.7.8 11.1.14, 11.2.3–11.2.5, 11.2.8, 11.2.9,
Kanda v Government of Malaya [1962] AC 322 11.2.15, 11.2.16C, 11.2.19C, 11.3.1, 11.3.2,
.... 11.4.12 11.3.6, 11.3.31C, 11.3.35, 11.3.36C, 11.4.2–
Kannan and Minister for Immigration and 11.4.4, 11.4.15, 11.4.16C, 11.4.19, 11.4.27,
Ethnic Affairs, Re (1978) 1 ALD 489 11.4.28, 11.4.31, 11.5.30C, 11.5.31C
.... 18.4.18 Kirby v Centro Properties Ltd (No 2) (2008) 172
Kaur v Minister for Immigration and Border FCR 376 .... 11.5.5, 11.5.19
Protection (2014) 236 FCR 393 .... 15.2.10 Kirk v Industrial Relations Commission of New
Kavvadias v Commonwealth Ombudsman (1984) South Wales (2010) 239 CLR 531; 262 ALR
1 FCR 80 .... 3.3.31, 4.3.20 569; [2010] HCA 1 .... 2.2.41, 3.2.16E,
Kelleher v Corrective Services Commission of 4.3.29, 5.2.23, 5.3.2, 5.3.14, 5.3.15C, 5.3.20,
NSW (1987) 8 NSWLR 423 .... 17.5.8 7.2.12, 7.2.13, 7.2.20C, 7.2.22E, 7.2.23E,
Kelson v Forward (1995) 60 FCR 39; 39 ALD 7.3.11, 8.3.46, 13.4.2, 13.4.4, 13.4.9, 16.1.11,
303 .... 2.4.15, 2.4.16C, 2.4.21 16.3.5, 16.3.7, 16.3.11, 16.3.12, 16.3.18C,
Kennedy v AAT (2008) 103 ALD 238 .... 3.3.21 16.3.19C, 16.3.20C, 16.4.2, 16.4.4–16.4.6,
Kent v Johnson (1972) 21 FLR 177 .... 8.3.27C, 16.4.11, 16.4.16, 16.4.18C, 17.2.7, 17.2.14C,
18.5.1 17.2.20

xxxvii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxxvii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Klein v Domus Pty Ltd (1963) 109 CLR 467 Lafu v Minister for Immigration and Citizenship
.... 10.3.11, 10.3.27, 15.2.21C (2009) 112 ALD 1 .... 10.4.9
Klewer v Dutch (2000) 99 FCR 217 .... 2.2.19 Lake Macquarie Shire Council v Morgan (1948)
Kline v Official Secretary to the Governor- 17 LGR (NSW) 22 .... 17.6.6C
General (2013) 249 CLR 645; 304 ALR 116; Lamb v Moss & Brown (1983) 5 ALD 446; 49
[2013] HCA 52 .... 19.2.6, 19.3.1, 19.3.2C ALR 533; 76 FLR 296 .... 2.4.8C, 2.4.33
Knight v Victoria [2017] HCA 29 .... 5.3.17 Lane v Morrison (2009) 239 CLR 230 .... 5.3.19
— v Wise [2014] VSC 76 .... 15.3.24 Lansen v Minister for Environment and Heritage
Kolundzik v Quickflex Constructions Pty Ltd (2008) 174 FCR 14 .... 16.1.31
[2014] NSWSC 1523 .... 12.4.7 Laremont v Minister for Immigration and Ethnic
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 Affairs (1985) 9 ALN N13 .... 13.3.3C, 13.3.4
.... 2.3.11C Latitude Fisheries Pty Ltd v Minister for Primary
Koppen v Commissioner for Community Industries and Energy (1992) 110 ALR 209
Relations (1986) 11 FCR 360 .... 11.3.18, .... 12.4.8
11.5.15, 11.5.20 Lawal v Northern Spirit Ltd [2004] 1 All ER 187
Kostas v HIA Insurance Services Pty Ltd (2010) .... 11.5.20
241 CLR 390 .... 3.3.41, 13.2.10 Laws v Australian Broadcasting Tribunal (1990)
Kosteska v Webber [2010] QCA 138 .... 2.4.44 170 CLR 70 .... 11.5.21, 11.5.25, 11.5.28,
Kovalev v Minister for Immigration and 11.5.30C, 11.5.33C
Multicultural Affairs (1999) 100 FCR 323 Le v Minister for Immigration and Border
.... 3.4.29 Protection (2015) 149 ALD 582 .... 10.3.6,
Kretchmer and Repatriation Commission, Re 15.3.37
(1988) 16 ALD 206 .... 8.5.17, 16.1.8 Le and Secretary, Department of Education,
Kruger v Commonwealth of Australia; Bray Science and Training, Re (2006) 90 ALD 83
v Commonwealth of Australia (Stolen .... 20.3.1
Generations case) (1997) 190 CLR 1 Leask v Commonwealth (1996) 187 CLR 579
.... 4.4.34, 5.3.38, 15.2.4, 15.2.18C .... 8.4.31
Kruse v Johnson [1898] 2 QB 91 .... 15.2.18C, Lebanese Moslem Association v Minister for
15.3.2 Immigration and Ethnic Affairs (1986) 11
Ku-ring-gai Council v West, as delegate of FCR 543 .... 10.3.26
Acting Director-General, Office of Local Lee v Crime and Corruption Commission
Government (2017) 95 NSWLR 1 .... 11.4.25 [2016] QCA 145 .... 4.5.4
Ku-ring-gai Municipal Council v Edwards [1957] — v New South Wales Crime Commission
SR (NSW) 379 .... 17.6.6C (2013) 251 CLR 196 .... 4.5.4, 8.3.28
Kuczborski v Queensland (2014) 314 ALR 528 — v The Queen (2014) 308 ALR 252 .... 8.3.34
.... 18.2.2, 18.3.14, 18.4.2 Leerdam v Noori (2009) 227 FLR 210 .... 2.4.59
Kuru v NSW (2008) 236 CLR 1 .... 8.3.34 Leghaei v Director-General of Security (2007) 97
Kuswardana v Minister for Immigration ALD 516 .... 11.2.15, 11.3.5, 11.3.35
and Ethnic Affairs (1981) 35 ALR 186 Lego Australia Pty Ltd v Paraggio (1994) 52
.... 3.3.23, 13.6.2 FCR 542 .... 15.4.7
Kutlu v Director of Professional Services Review Lennell v Repatriation Commission (1982) 4
(2011) 197 FCR 177; 123 ALD 399; [2011] ALN 54 .... 7.5.18
FCAFC 94 .... 8.5.17, 8.5.18, 8.5.19C, Leong Kum, Re (1888) 9 NSWR 250 .... 17.5.4C
8.5.22, 8.5.24, 16.2.6 Leppington Pastoral Co Pty Ltd v Department of
Kuwait Airways Corporation v Iraqi Airways Administrative Services (1990) 23 FCR 148
Company [2002] UKHL 19; [2002] 2 AC .... 12.5.15
883 .... 2.3.18C Leung v Minister for Immigration and
Multicultural Affairs (1997) 79 FCR 400
L .... 15.4.7, 16.1.31
Labour Relations Board of Saskatchewan v John Lever Finance v Westminster (City) London
East Iron Works Ltd [1949] AC 134 Borough Council [1971] 1 QB 222
.... 5.3.23 .... 12.6.7C, 12.6.8C
xxxviii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxxviii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
Levingstone v Shire of Heidelberg [1917] VLR Lyons v Queensland (2016) 90 ALJR 1107
263 .... 8.4.17C .... 4.4.30
Levy v Victoria (1997) 189 CLR 579 .... 18.5.7
Lewisham Borough Council v Roberts [1949] 2 M
KB 608 .... 9.3.10 M v University of Tasmania [1986] Tas R 74
Li v Chief of Army (2013) 250 CLR 328 .... 2.3.17
.... 13.2.9 M238 of 2002 v Ruddock [2003] FCAFC 260
Likiardopoulos v R (2012) 247 CLR 265 .... 10.3.25
.... 17.9.11 McAuliffe v Dept of Social Security (1992) 28
Liversidge v Anderson [1942] AC 206 .... 7.4.12, ALD 609 .... 7.5.20C
8.3.48, 8.3.49, 8.3.56C, 17.5.5C McBain, Re; Ex parte Australian Catholic
Livesey v New South Wales Bar Association Bishops Conference (2002) 209 CLR
(1983) 151 CLR 288 .... 11.5.6, 11.5.18, 372; 188 ALR 1 .... 2.2.14, 2.2.42, 2.2.46,
11.5.33C, 11.5.34C 2.3.5–2.3.7, 2.3.9C, 2.3.19, 2.4.59, 17.1.13,
Lloyd v Costigan (1983) 48 ALR 241 .... 2.4.34 17.2.3, 17.2.18, 17.9.4, 18.1.2, 18.2.2, 18.2.8,
Lo Pak, Ex parte (1888) 9 LR (NSWR) L 221 18.4.5, 18.4.6C, 18.4.7, 18.5.1
.... 17.5.4C, 17.5.7 MacCarron v Coles Supermarkets Australia Pty
Lo v Chief Commissioner of State Revenue Ltd (2001) 23 WAR 355 .... 8.5.24
(2013) 85 NSWLR 86 .... 10.3.3 McCarthy & Stone (Developments) Ltd
Lobo and Department of Immigration and v London Borough of Richmond on Thames
Citizenship, Re [2011] AATA 705 [1992] 2 AC 48 .... 8.3.45
.... 19.3.6C MacDonald v Hamence (1984) 1 FCR 45 .... 9.2.9
Local Government Board v Arlidge [1915] AC McDonald v Director-General of Social Security
120 .... 11.4.28 (1984) 1 FCR 354; 6 ALD 6 .... 3.2.16E,
Lombardo v Federal Commissioner of Taxation 3.4.12, 3.4.15, 3.4.16C, 3.4.18C, 3.4.19
(1979) 28 ALR 574 .... 13.5.12 McEldowney v Forde [1971] AC 632 .... 8.4.3,
London County Council v Attorney-General 10.2.13C
[1902] AC 165 .... 8.2.2 McGovern v Ku-ring-gai Council (2008) 72
Lonrho plc v Secretary of State for Trade and NSWLR 504; 161 LGERA 170 .... 10.2.21,
Industry [1989] 2 All ER 609 .... 10.3.26 11.5.21, 11.5.32C, 11.5.33C, 16.2.4
Lordsvale Finance Ltd and Department of the McGuiness v Attorney-General (Vic) (1940) 83
Treasury, Re [1985] AATA 174 .... 19.2.3 CLR 73 .... 9.2.21C
Loschiavo and Secretary, Department of Housing McGuinness v State of New South Wales (2009)
and Construction, Re (1980) 2 ALD 757 73 NSWLR 104 .... 11.2.10
.... 18.4.18 McHattan and Collector of Customs, Re (NSW)
Love v AFL Canberra Limited and the Members (1977) 1 ALD 67 .... 18.3.16C, 18.4.16,
of the Disputes Tribunal of AFL Canberra 18.4.17C
Limited [2009] ACTSC 135 .... 11.4.11 McInnes v Onslow-Fane [1978] 1 WLR 1520
LS v Director-General of Family and .... 2.3.11C, 11.1.14, 11.2.17C
Community Services (1989) 18 NSWLR McKinnon v Secretary, Department of Treasury
481 .... 8.6.4 (2006) 228 CLR 423; 91 ALD 516; 229
Lu v Minister for Immigration and Multicultural ALR 187; 80 ALJR 1549 .... 3.3.8, 8.3.55,
and Indigenous Affairs (2004) 141 FCR 346 8.3.57C, 10.3.15
.... 10.3.7, 10.3.28, 10.4.7 Macksville and District Hospital v Mayze (1987)
Luck v University of Southern Queensland 10 NSWLR 708 .... 16.1.12, 16.1.17C
(2014) 145 ALD 1 .... 2.4.59 McLean Bros & Rigg Ltd v Grice (1906) 4 CLR
Lundbeck A/S v Commissioner of Patents (2017) 835 .... 8.2.12
154 ALD 471 .... 2.3.20 MacLeod v Australian Securities and
Luu v Renevier (1989) 91 ALR 39 .... 13.2.26C Investments Commission (2002) 211 CLR
LVR (WA) Pty Ltd v Administrative Appeals 287 .... 8.2.4
Tribunal (2012) 203 FCR 166; 289 ALR McManus v Scott-Charlton (1996) 70 FCR 16
244 .... 4.7.5, 11.5.25, 21.2.16 .... 9.2.9
xxxix

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xxxix 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

Macrae v Attorney-General (NSW) (1987) 9 Masu Financial Management P/L v Financial
NSWLR 268 .... 7.2.5C Industry Complaints Service (2005) 23
Macteldir v Dimovski (2005) 226 ALR 773 ACLC 215 .... 2.5.10
.... 2.2.17 Mathieson v Burton (1971) 124 CLR 1 .... 3.3.32C
MacTiernan and Secretary, Re; Department of Mauro v Hooper [2008] SASC 159 .... 21.1.32
Infrastructure and Regional Development Maxwell v Minister for Immigration and Border
(2016) 154 ALD 168 .... 19.3.4 Protection (2016) 249 FCR 275 .... 10.4.8
MacTiernan, Re; Ex parte Coogee Coastal May v Ferndale Institution [2005] 3 SCR 80
Action Coalition Inc (2005) 30 WAR 138 .... 17.5.8
.... 17.2.15, 18.3.12 — v Military Rehabilitation and Compensation
Magno v Minister for Foreign Affairs and Trade Commission [2015] FCAFC 93 .... 13.5.7,
(1992) 35 FCR 235 .... 2.4.37 13.5.23C, 13.5.24
Maher v Adult Guardian [2011] QCA 225 MBA Land Holdings Pty Ltd v Gungahlin
.... 11.5.16 Development Authority (2000) 206 FLR
Mahon v Air New Zealand [1984] AC 808 120 .... 2.5.21
.... 11.3.17, 13.2.32 Media, Entertainment and Arts Alliance, Re; Ex
Mahony v Industrial Registrar of New South parte Hoyts Corporation Pty Ltd (1993) 178
Wales (1987) 8 NSWLR 1 .... 13.5.28 CLR 379 .... 17.4.16
Maitland City Council v Anambah Homes Pty Melbourne Corporation v Barry (1923) 31 CLR
Ltd (2005) 64 NSWLR 695 .... 16.3.10 174 .... 8.3.34
Majar v Northern Land Council (1991) 37 FCR Melville v Craig Nowlan & Associates Pty Ltd
117 .... 14.3.5 (2002) 54 NSWLR 82 .... 18.4.24
Makucha v Sydney Water Corporation [2011] Mercantile Mutual Life Insurance Co Ltd
NSWCA 234 .... 17.2.3 v Australian Securities Commission (1993)
Malika Holdings Pty Ltd v Stretton (2001) 204 40 FCR 409; 29 ALD 616; 112 ALR 463
CLR 290 .... 8.3.10, 8.3.20, 8.3.32C, 8.3.36 .... 8.6.1, 8.6.2C, 8.6.3
Manolakis v District Registrar, South Australian Mercantile Mutual v Federal Commissioner of
District Registry, Federal Court of Australia Taxation (1985) 8 FCR 519 .... 17.7.8
(2008) 170 FCR 426 .... 2.4.44 Mercury Energy Ltd v Electricity Corporation
Marbury v Madison (1803) 5 US 137; 1 Cranch of New Zealand Ltd [1994] 2 NZLR 385
137 .... 5.2.22, 7.2.5C, 7.3.12, 7.5.8, 7.5.10C .... 2.5.20, 2.5.21
Marine Hull & Liability Insurance Co Ltd Metropolitan Gas Co v Federal Commissioner of
v Hurford (1985) 10 FCR 234; 62 ALR 253 Taxation (1932) 47 CLR 621 .... 8.3.50C
.... 11.3.21, 11.3.24, 11.3.27C, 11.3.36C Metropolitan Properties Co (FGC) Ltd v Lannon
— v — (1986) 10 FCR 476 .... 11.3.28 [1969] 1 QB 577 .... 11.5.2
Maritime Union of Australia v Minister for Michael and Secretary, Department of
Immigration and Border Protection (2016) Employment, Science and Training, Re
259 CLR 431 .... 8.4.2 (2006) 90 ALD 457 .... 16.1.26, 16.1.27C
Marks v The Commonwealth (1964) 111 CLR Michael, Re; Ex parte Epic Energy (WA)
549 .... 9.2.18C Nominees Pty Ltd (2002) 25 WAR 511
Marquess of Clanricarde v Congested Districts .... 10.2.23
Board (1914) 79 JP 481 .... 10.2.12C Michael Wilson & Partners Limited v Nicholls
Marrickville Metro Shopping Centre Pty Ltd (2011) 244 CLR 427 .... 11.5.17
v Marrickville Council (2010) 174 LGERA Mickelberg v R (1989) 167 CLR 259 .... 3.3.43C
67 .... 15.2.9 Mickovski v Financial Ombudsman Service Ltd
Marsh v Shire of Serpentine-Jarrahdale (1966) (2012) 36 VR 456 .... 2.5.6, 2.5.13, 2.5.14C
120 CLR 572 .... 8.3.45 Middleton and Building Services Authority
Martin v Nalder [2016] WASC 138 .... 17.4.2 [2010] QICmr 39 .... 19.2.20
Master Retailers’ Assn of NSW v Shop Military Rehabilitation and Compensation
Assistants Union of NSW (1904) 2 CLR 94 Commission v May (2016) 257 CLR 468
.... 18.4.5 .... 8.3.5

xl

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xl 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
— v SRGGGG (2005) 215 ALR 459 .... 21.2.4 — v Khadgi (2010) 190 FCR 248 .... 10.4.21
Millar v Wildish (1863) 2 W & W (E) 37 — v Kumar (2009) 238 CLR 448 .... 11.4.2
.... 9.2.7C — v Le (2007) 164 FCR 151 .... 15.3.19
Mills v Meeking (1990) 169 CLR 214 .... 8.3.5 — v Li (2013) 249 CLR 332; 139 ALD 181;
Mineralogy Pty Ltd v Secretary, Department of 297 ALR 225; [2013] HCA 18 .... 2.5.15C,
Infrastructure and Regional Development 3.3.17, 3.3.19, 3.4.7, 3.4.9C, 3.4.10, 3.4.14,
(2014) 225 FCR 178 .... 13.2.17, 13.2.19, 3.4.22C, 4.2.14, 7.2.2, 7.2.6, 7.2.7C, 7.2.8,
13.2.20, 13.3.4 7.4.4, 7.5.21, 7.5.29, 8.3.54, 8.4.24, 8.4.30,
Minister Administering the Mineral Resources 10.3.11, 12.2.17C, 13.2.5, 13.2.7, 13.2.29,
Development Act 1995 v Tarkine National 13.2.32, 13.2.34, 13.3.4, 13.3.7, 13.3.8,
Coalition Inc (2016) 24 Tas R 357 13.4.11, 13.5.12, 13.5.28, 15.1.1, 15.2.1,
.... 18.4.10 15.2.4, 15.2.7–15.2.10, 15.2.13, 15.2.16,
Minister for Aboriginal Affairs v Peko-Wallsend 15.2.18C, 15.2.19–15.2.21C, 15.3.2, 15.3.6,
Ltd (1986) 162 CLR 24; 66 ALR 299 15.3.15, 15.3.37, 15.3.38C, 21.2.3, 21.3.4
.... 7.2.1, 7.2.7C, 7.2.21C, 8.5.8, 10.3.4, — v Maman (2012) 200 FCR 30 .... 11.4.24
10.3.28, 10.4.4, 10.4.5, 10.4.7, 10.4.11, — v Obele (2010) 119 ALD 358 .... 12.4.9
10.4.13C, 10.4.15, 10.4.18, 10.4.25C, — v SZGUR (2011) 241 CLR 594 .... 3.2.27,
12.2.23C, 13.3.3C, 13.3.4, 15.2.18C, 3.3.17, 3.4.9C, 15.3.21, 21.1.12
15.3.13, 16.1.9, 17.2.13C — v SZIAI (2009) 111 ALD 15; 83 ALJR
Minister for Aboriginal and Torres Strait Islander 1123 .... 3.4.27, 11.4.35, 15.3.18, 15.3.19,
Affairs v Western Australia (1996) 67 FCR 15.3.20C, 15.3.21
40 .... 10.4.17 — v SZIQB [2008] FCAFC 20 .... 17.9.2
Minister for Arts, Heritage and Environment — v SZIZO (2009) 238 CLR 627 .... 11.4.2, 11.4.9
v Peko-Wallsend Ltd (1987) 15 FCR 274; — v SZJSS (2010) 243 CLR 164; 273 ALR 122;
14 ALD 307; 75 ALR 218 .... 2.3.4E, 85 ALJR 306 .... 10.3.28, 10.4.9, 10.4.24,
2.3.6–2.3.8, 2.3.11C, 2.3.12–2.3.15, 5.2.17, 10.4.25C, 10.4.29, 13.2.9, 13.2.11
8.3.15, 9.2.4, 9.2.37, 9.3.4, 11.2.10, 11.2.15 — v SZKTI (2009) 238 CLR 489 .... 11.4.2
Minister for Families and Children v Certain — v SZLIX (2008) 100 ALD 443 .... 15.4.4
Children by their Litigation Guardian Sister — v SZLSP (2010) 187 FCR 362 .... 15.3.15
Marie Brigid Arthur (2016) 51 VR 597; — v SZMDS (2010) 240 CLR 611; 266 ALR
[2016] VSCA 343 .... 6.5.1, 10.3.7 367; [2010] HCA 16 .... 7.2.6, 7.5.21,
Minister for Health v Thompson (1985) 8 FCR 7.5.25, 10.3.6, 10.4.9, 13.2.5, 13.2.7,
213 .... 11.4.19, 11.5.20 13.2.11, 13.2.34, 13.3.7, 13.3.8, 13.4.11,
Minister for Home Affairs of the Commonwealth 13.5.12, 13.5.22C, 13.5.28, 15.2.15, 15.2.16,
v Zentai (2012) 246 CLR 213 .... 10.4.15 15.2.17C, 15.3.17, 21.3.3
Minister for Immigration and Border Protection — v SZMTR (2009) 180 FCR 586 .... 11.4.2
v Eden (2016) 240 FCR 158 .... 8.4.23, — v SZQHH (2012) 200 FCR 223 .... 11.5.25,
15.3.37, 15.3.38C 21.2.16
— v MZYTS (2013) 136 ALD 547 .... 10.4.15, — v SZQOY (2012) 206 FCR 25 .... 16.1.21
15.2.10, 21.2.9 — v SZRKT (2013) 212 FCR 99 .... 13.3.4
— v Singh (2014) 139 ALD 50 .... 13.2.9, 15.1.1, — v SZRMA (2013) 219 FCR 287 .... 10.4.15
15.2.10, 15.2.19, 15.3.38C — v SZRNY (2013) 214 FCR 374 .... 16.1.21
— v Stretton (2016) 237 FCR 1 .... 8.4.23, 13.2.6, — v SZSNW (2014) 229 FCR 197 .... 15.2.10,
15.2.10, 15.2.22, 15.3.2, 15.3.38C 15.3.15
— v SZSRS (2014) 309 ALR 67 .... 13.3.4 — v Yucesan (2008) 169 FCR 202 .... 7.5.8, 8.3.4
— v SZSSJ (2016) 259 CLR 180 .... 11.2.9, Minister for Immigration and Ethnic Affairs
11.3.1, 11.4.17 v Conyngham (1986) 11 FCR 528; 68 ALR
—SZVFW [2018] HCA 30 .... 7.5.3, 7.5.26, 441 .... 12.2.22C, 17.4.11C, 17.8.3, 17.8.4,
13.2.7, 15.2.20, 15.2.21C 17.8.5C
Minister for Immigration and Citizenship — v Guo (1997) 191 CLR 559; 144 ALR 567
v Haneef (2007) 163 FCR 414 .... 8.3.32C .... 17.5.4C, 17.7.3, 17.7.7C

xli

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xli 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

— v Mayer (1985) 157 CLR 290 .... 2.4.49 16.1.20C, 16.1.21, 16.1.22, 16.1.24–16.1.26,
— v Naumovska (1983) 88 ALR 589 .... 13.3.14 16.1.27C, 16.1.28C, 16.3.17C, 16.4.5
— v Petrovski (1997) 73 FCR 303 .... 12.6.11 — v Eshetu (1999) 197 CLR 611; 54 ALD 289;
— v Pochi (1980) 31 ALR 666; 44 FLR 41 162 ALR 577 .... 3.4.7, 3.4.8C, 3.4.9C,
.... 3.4.12, 13.2.32, 13.2.33, 21.1.2 8.3.51, 13.2.7, 15.2.17C, 15.2.18C, 15.3.7C
— v Tagle (1983) 48 ALR 566; 67 FLR 164 — v Indatissa (2001) 64 ALD 1 .... 13.2.24
.... 10.4.28 — v Jia (2001) 205 CLR 507; 65 ALD 1; 178
— v Taveli (1990) 23 FCR 162 .... 21.3.3, 21.3.6, ALR 421 .... 5.2.20, 7.5.16, 8.3.15, 10.3.23,
21.3.8 10.4.17, 11.5.8, 11.5.22, 11.5.31C, 11.5.32C
— v Teo (1995) 57 FCR 194 .... 8.3.13 — v Lay Lat (2006) 151 FCR 214; 231 ALR 412
— v Wu Shan Liang (1996) 185 CLR 259 .... 11.2.19C, 11.3.31C
.... 3.4.18C, 7.2.6, 7.5.19, 7.5.20C, 7.5.21, — v Ozmanian (1996) 71 FCR 1 .... 2.4.10
8.3.51, 10.4.9, 10.4.29, 13.2.30, 21.2.16, — v Rajamanikkam (2002) 210 CLR 222;
21.3.3 69 ALD 257; 190 ALR 402 .... 13.2.17,
Minister for Immigration and Multicultural 13.2.23, 13.2.24, 13.2.27C
Affairs, Re; Ex parte Applicant S20/2002 — v SBAN [2002] FCAFC 431
(2003) 73 ALD 1; 198 ALR 59 .... 7.2.7C, .... 15.4.11–15.4.13
13.2.7, 13.3.7, 13.4.11, 13.5.4, 15.2.14, — v Singh (2000) 98 FCR 469 .... 21.2.11–21.2.12
15.2.17C, 15.3.1 — v Vadarlis (2001) 110 FCR 491; 183 ALR 1
Minister for Immigration and Multicultural .... 2.2.23, 2.2.28, 2.2.29, 2.3.13, 2.3.15,
Affairs, Re; Ex parte Cohen (2001) 177 8.2.3, 9.2.5, 9.2.13–9.2.15, 9.2.20, 9.2.21C,
ALR 473 .... 13.3.8 9.2.22, 17.1.2, 17.1.6, 17.5.1, 17.5.3,
Minister for Immigration and Multicultural 17.5.4C, 17.5.7, 17.5.8, 17.9.3
Affairs, Re; Ex parte Durairajasingham — v Yusuf (2001) 206 CLR 323 .... 7.5.21,
(2000) 58 ALD 609; 168 ALR 407 10.3.28, 10.4.9, 10.4.25C, 16.2.8, 16.4.11,
.... 2.2.27, 2.2.46, 17.1.13, 21.2.11 16.4.13, 16.4.16, 21.2.8, 21.2.10, 21.2.12
Minister for Immigration and Multicultural Minister for Immigration and Multicultural and
Affairs, Re; Ex parte Epeabaka (2001) 206 Indigenous Affairs, Re; Ex parte Applicants
CLR 128 .... 3.4.18C S134/2002 (2003) 211 CLR 441 .... 13.4.11,
Minister for Immigration and Multicultural 17.4.5
Affairs, Re; Ex parte Lam (2003) 214 Minister for Immigration and Multicultural and
CLR 1; 195 ALR 502 .... 5.2.12, 5.3.45, Indigenous Affairs, Re; Ex parte Palme
7.3.7, 7.3.12, 11.1.8, 11.1.14, 11.3.10, (2003) 216 CLR 212 .... 16.4.10, 21.1.4
11.3.13, 11.3.14C, 11.3.15, 11.3.16C, 11.4.6 Minister for Immigration and Multicultural and
Minister for Immigration and Multicultural Indigenous Affairs v Al Masri (2003) 126
Affairs, Re; Ex parte Miah (2001) 206 CLR FCR 54 .... 17.5.6
57; 179 ALR 238 .... 2.2.27, 5.3.54, 8.3.34, — v Huynh (2004) 139 FCR 505 .... 10.4.5
11.1.1, 11.1.9, 11.2.6, 11.2.13–11.2.15, — v NAOS of 2002 [2003] FCAFC 142
11.2.19C, 11.3.23–11.3.25, 11.3.30C, .... 15.4.12
11.3.31C, 11.4.2, 11.4.4, 11.4.5, 11.4.15, — v NBDS (2006) 90 ALD 614 .... 15.3.17
11.4.22, 16.4.8 — v Nystrom (2006) 228 CLR 556 .... 10.4.5,
Minister for Immigration and Multicultural 10.4.6
Affairs v Al Miahi (2001) 65 ALD 141 — v SGLB (2004) 78 ALD 224; [2004] HCA 32
.... 13.2.16 .... 13.2.29, 13.3.7, 15.2.17C
— v Ali (2000) 106 FCR 313; 62 ALD 673 — v Watson (2005) 145 FCR 542 .... 16.1.24
.... 13.6.2 Minister for Immigration, Local Government
— v Anthonypillai (2001) 106 FCR 426 and Ethnic Affairs v Gray (1994) 50 FCR
.... 10.4.7 189 .... 12.2.9, 12.2.17C, 12.2.21, 12.2.24C,
— v Bhardwaj (2002) 209 CLR 597; 67 ALD 12.2.25
615; 187ALR 117 .... 3.3.22, 7.2.21C, — v Kurtovic (1990) 21 FCR 193; 92ALR 93
13.4.11, 16.1.6, 16.1.8, 16.1.16, 16.1.19, .... 8.2.13, 12.6.4, 12.6.5, 12.6.7C, 12.6.8C

xlii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xlii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
— v Mok (1994) 55 FCR 375 .... 11.5.21 Momcilovic v The Queen (2011) 245 CLR 1;
— v Pashmforoosh (1989) 18 ALD 77 .... 10.3.6, 280 ALR 221; 85 ALJR 957; [2011] HCA
15.3.15 34 .... 4.4.5, 4.4.15, 4.4.20, 4.4.21, 5.3.46,
Minister for Industry and Commerce v East West 8.3.20, 8.3.30, 8.3.33C, 8.3.34, 10.3.15,
Trading Co Pty Ltd (1986) 10 FCR 264 13.5.23C, 15.3.40
.... 12.2.22C Montreal Street Railway Co v Normandin [1917]
— v Tooheys Ltd (1982) 4 ALD 661; 42 ALR AC 170 .... 16.2.6, 16.2.10C
260 .... 2.4.40C, 2.4.43, 2.4.47, 6.1.15 Morgan v Commissioner of Police [2011]
Minister for Mental Health v A [2017] NSWCA NSWCA 134 .... 16.5.2
288 .... 2.1.2.22 Morrison v Minister for Immigration [2008]
Minister for Natural Resources v New South FCA 54 .... 10.3.28
Wales Aboriginal Land Council (1987) 9 Morton v Ruiz (1974) 415 US 199 .... 7.5.9C
NSWLR 154 .... 8.2.12 — v Transport Appeal Boards [2007] NSWSC
Minister for Primary Industries and Energy 888 .... 11.5.19
v Austral Fisheries Pty Ltd (1993) 40 FCR — v Union Steamship Co of New Zealand Ltd
381 .... 8.4.24, 8.4.28C, 15.3.15 (1951) 83 CLR 402; [1951] ALR 655
Minister for Public Works v Duggan (1951) 83 .... 8.4.12, 8.4.14C, 10.2.13C
CLR 424 .... 10.2.15C Mosley v News Group Newspapers [2008]
Minister for Resources, Re; Ex parte Cazaly Iron EWHC 1777 .... 20.1.11
Pty Ltd (2007) 34 WAR 403 .... 10.3.25 Mowday v WA [2007] 176 A Crim R 85
Minister for Resources v Dover Fisheries Pty Ltd .... 8.2.12
(1993) 43 FCR 565 .... 8.4.28C, 8.4.29C, Mudginberri Station Pty Ltd v Langhorne (1985)
8.4.30, 8.4.31, 15.3.32 7 FCR 482; 68 ALR 613 .... 14.1.3, 14.3.1,
Minister of State for Immigration and Ethnic 14.3.2C, 17.4.7
Affairs v Teoh (1995) 183 CLR 273; 39 Muggeridge v Minister for Immigration and
ALD 206; 128 ALR 353 .... 1.2.1, 2.2.26, Border Protection (2017) 351 ALR 153
4.4.13, 5.2.17, 8.3.40, 10.3.6, 11.3.7, 11.3.11– .... 15.2.10, 15.2.19
11.3.13, 11.3.14C, 11.3.15, 16.2.10C Muin v Refugee Review Tribunal (2002) 68 ALD
Minogue v Human Rights and Equal 257 .... 7.2.24, 13.4.11
Opportunity Commission (1999) 84 FCR Municipal Council of Sydney v Campbell [1925]
438 .... 11.4.33, 17.4.7 AC 338 .... 10.2.3, 10.2.9, 10.2.12C
— v Williams (2000) 60 ALD 366; [2000] FCA Murphyores Inc Pty Ltd v Commonwealth
125 .... 4.4.13 (1976) 136 CLR 1; 9 ALR 199 .... 7.4.13,
Mirror Newspapers Ltd v Waller (1985) 1 7.5.16, 8.3.15, 10.2.13C, 10.2.16C, 10.3.4,
NSWLR 1 .... 18.4.3 10.3.16C, 10.3.23, 10.4.13C, 12.5.5C,
Mississippi Power & Light Co v Mississippi 14.2.1
(1998) 487 US 354 .... 7.5.10C Murrumbidgee Groundwater Preservation
Mistretta v United States (1989) 488 US 361 Association Inc v Minister for Natural
.... 5.3.48 Resources (2005) 138 LGERA 11 .... 8.4.25,
Mitchell v Royal New South Wales Canine 15.2.12, 15.3.12
Council Ltd (2001) 52 NSWLR 242 Musgrove v Toy [1891] AC 272 .... 17.5.4C
.... 2.5.15C Mutasa v Attorney-General [1980] QB 114
MLC Investment v Federal Commissioner of .... 2.3.15
Taxation (2003) 137 FCR 288 .... 13.2.24 MYVZ v Director-General of Security (2014)
Mobil Oil Australia Pty Ltd v Federal 148 ALD 489 .... 13.5.6
Commissioner of Taxation (1963) 113 CLR MZXOT v Minister for Immigration and
475 .... 11.2.16C, 11.3.36C Citizenship (2008) 233 CLR 601 .... 2.2.28,
Mokbel v Attorney-General (2007) 162 FCR 296 2.2.29
.... 9.2.9 MZZZW v Minister for Immigration and Border
Molomby v Whitehead (1985) 7 FCR 541 Protection (2015) 234 FCR 154 .... 3.4.15,
.... 13.4.7 11.5.25, 21.2.16

xliii

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xliii 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

 Control of Government Action

N — v Cannellis (1994) 181 CLR 309 .... 11.4.32
NAAV v Minister for Immigration and — v Commonwealth (2006) 229 CLR 1 .... 5.2.1
Multicultural and Indigenous Affairs (2002) New South Wales Aboriginal Land Council
123 FCR 298 .... 5.2.11 v Minister Administering Crown Lands
NABE v Minister for Immigration and (Consolidation) Act and Western Lands Act
Multicultural and Indigenous Affairs (2004) (1988) 14 NSWLR 685 .... 3.3.32C
144 FCR 1 .... 3.3.24, 7.2.24, 13.3.8, 13.4.11 New South Wales Farmers’ Association
NAIS v Minister for Immigration and v Minister for Primary Industries and
Multicultural and Indigenous Affairs (2005) Energy (1990) 21 FCR 332; 94 ALR 207
228 CLR 470; [2005] HCA 77 .... 7.2.6, .... 12.4.2, 12.4.3C
10.4.9, 17.4.1 New South Wales Trotting Club Ltd v Glebe
NAJT v Minister for Immigration (2005) 147 Municipal Council (1937) 37 SR (NSW)
FCR 51 .... 10.4.20 288 .... 12.6.7C
NBMZ v Minister for Immigration and Border Newcastle City Council v GIO General Ltd
Protection (2014) 220 FCR 1 .... 10.4.9 (1997) 191 CLR 85 .... 8.3.2
Nakkuda Ali v Jayaratne [1951] AC 66 (PC) Newfoundland and Labrador Nurses’ Union
.... 8.3.49 v Newfoundland and Labrador (Treasury
Namah v Pato [2016] PGSC .... 2.2.30 Board) [2011] 3 SCR 708 .... 21.1.22
National Companies and Securities Commission News Corporation Ltd v National Companies
v News Corporation Ltd (1984) 156 CLR and Securities Commission (1984) 1 FCR
296 .... 11.2.16C 64 .... 19.2.11
NAUV v Minister for Immigration and News Ltd v South Sydney District Rugby League
Multicultural and Indigenous Affairs (2004) Football Club Ltd (2003) 215 CLR 563
82 ALD 784 .... 17.9.10 .... 10.2.19
NBMZ v Minister for Immigration and Border NIB Health Funds Ltd v Private Health
Protection (2014) 220 FCR 1; 307 ALR 49 Insurance Administration Council (2002)
.... 10.4.6 115 FCR 561 .... 10.2.21, 11.4.16C
NBNB v Minister for Immigration and Border Nicholson-Brown v Jennings (2007) 162 FCR
Protection (2014) 220 FCR 44; 307 ALR 90 337 .... 10.3.25
.... 10.4.23 Nikac v Minister for Immigration, Local
NCSC v News Corp Ltd (1984) 156 CLR 296 Government and Ethnic Affairs (1988)
.... 11.4.34 20 FCR 65; 16 ALD 611; 92 ALR 167
Neal v Secretary, Department of Transport (1980) .... 12.2.21, 12.2.23C
3 ALD 97 .... 13.5.24 Ningkan v Government of Malaysia [1970] AC
NEAT Domestic Trading Pty Ltd v AWB Ltd 379 .... 10.2.13C
(2001) 114 FCR 1 .... 2.5.2, 2.5.11, 2.5.12C, Nisselle v Brouwer (2007) 16 VR 296 .... 4.3.27
2.5.23 Nobarani v Mariconte [2018] HCA 36 .... 11.4.8,
— v — (2003) 216 CLR 277 .... 2.4.53, 2.5.11, 11.4.33
2.5.12C, 2.5.14C, 12.2.4 Nomad Industries of Australia Pty Ltd v Federal
Nesbitt Fruit Products Inc v Wallace (1936) 17 F Commissioner of Taxation [1983] 2
Supp 141 .... 8.3.24C NSWLR 56 .... 2.2.38
Neviskia Pty Ltd, Saitta Pty Ltd and Department Nona v Barnes [2013] 2 Qd R 528 .... 2.4.19,
of Health and Aged Care, Re (2000) 32 2.4.55
AAR 129 .... 5.3.33 Norbis v Norbis (1986) 161 CLR 513 .... 7.4.13
Nevistic v Minister for Immigration and Ethnic North Australian Aboriginal Justice Agency
Affairs (1981) 34 ALR 639 .... 12.2.17C, Limited v Northern Territory (2015) 256
12.5.3 CLR 569 .... 5.3.17, 11.5.1
New South Wales v Amery (2006) 230 CLR 174 North Coast Environment Council Inc v Minister
.... 4.4.28 for Resources (1994) 55 FCR 492; 127 ALR
— v Bardolph (1934) 52 CLR 455 .... 9.2.9, 617; 36 ALD 533 .... 18.1.2, 18.2.4, 18.3.8,
9.2.32, 9.3.10 , 18.3.12, 18.3.13, 18.4.7, 18.4.25

xliv

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xliv 26/09/2018   10:13:10
204279
 TRIM SIZE: 176 x 242mm

Cases 
Northside Developments Pty Ltd v Registrar- Osland v Secretary, Department of Justice (No 2)
General (1990) 170 CLR 146 .... 8.2.12 (2010) 241 CLR 320 .... 3.3.38, 7.2.27,
NSW Associated Blue-Metal Quarries Ltd 8.3.53, 10.3.11, 10.3.15, 13.5.8C
v Federal Commissioner of Taxation (1956) O’Sullivan v Farrer (1989) 168 CLR 210
94 CLR 509 .... 13.5.21C .... 10.3.11, 10.3.12, 10.3.13
NSW Breeding & Racing Stables Pty Ltd Othman v Minister for Immigration, Local
v Administrative Appeals Tribunal (2001) 53 Government and Ethnic Affairs (1991) 24
NSWLR 559 .... 17.9.5, 17.9.7C ALD 707 .... 15.3.14
NSW Thoroughbred Racing Board v Waterhouse Otter Gold Mines Ltd v Forrest (1997) 47 ALD
(2003) 56 NSWLR 691 .... 3.3.47 89 .... 2.4.23
Our Town FM Pty Ltd v Australian Broadcasting
O Tribunal (No 1) (1987) 16 FCR 465; 13
Oakley v South Cambridgeshire District Council ALD 740 .... 16.2.8, 21.2.11
[2017] 1 WLR 3756 .... 21.2.21 Owen v Menzies [2013] 2 Qd R 327; (2012) 293
O’Brien v Northern Territory (2002) 139 NTR 1 ALR 571 .... 3.2.4, 5.3.19
.... 16.4.10 Owners of Shin Kobe Maru v Empire Shipping
O’Connell v Nixon (2007) 16 VR 440 .... 8.4.2, Company Inc (1994) 181 CLR 404
8.4.15, 8.4.19 .... 13.5.8C
O’Connor and Australia Postal Corp, Re (2010)
116 ALD 417 .... 21.1.14 P
O’Connor v Adamas (2013) 210 FCR 364 Padfield v Minister of Agriculture, Fisheries and
.... 10.3.7 Food [1968] AC 997 .... 7.4.11, 10.2.4,
— v Zentai (2011) 195 FCR 515 .... 10.4.15 10.2.13C, 10.3.5, 10.3.17C, 10.3.26,
Office of the Premier v Herald and Weekly Times 10.4.13C, 14.2.1, 17.4.11C
(2013) 38 VR 684 .... 19.2.7 Palavi v Minister for Immigration, Local
Ogle v Strickland (1987) 13 FCR 306 .... 18.1.2, Government and Ethnic Affairs (1992) 28
18.2.4, 18.4.6C, 18.4.10 ALD 214 .... 10.3.22
O’Keefe v City of Caulfield [1945] VLR 227 Palmer v Ayres; Ferguson v Ayres [2017] HCA 5
.... 6.5.3 .... 5.3.43
Olmstead v United States 277 US 438 (1928) — v Chief Executive, Qld Corrective Services
.... 2.5.23 [2010] QCA 316 .... 2.2.51
O’Malley v Keelty, Australian Federal Police Palmer and Defence Force Retirement and
Commissioner [2004] FCA 1688 Benefit Authority, Re (2004) 85 ALD 148
.... 14.4.6 .... 16.1.25
Ombudsman Act, Re (1970) 72 WWR 176 Palmer and Minister for the Capital Territory, Re
.... 4.2.21E (1978) 1 ALD 183 .... 21.2.12
O’Meara v R [2006] NSWCCA 127 .... 2.2.38 Pancontinental Mining Ltd v Burns (1994) 52
Onesteel Manufacturing P/L v Whyalla Red FCR 454 .... 2.4.23, 2.4.34
Dust Action Group Inc (2006) 94 SASR Pape v Commissioner of Taxation (2009) 238
357 .... 18.3.12 CLR 1 .... 9.2.26, 9.2.30C
Onus v Alcoa of Australia Ltd (1981) 149 CLR Parisienne Basket Shoes Pty Ltd v Whyte (1938)
27; 36 ALR 425 .... 18.1.2, 18.3.3, 18.3.5C, 59 CLR 369 .... 13.3.19, 16.4.6, 16.4.9,
18.3.6C, 18.3.10C, 18.4.2 16.4.10
O’Reilly v Commissioners of State Bank of Park Oh Ho v Minister for Immigration
Victoria (1983) 153 CLR 1 .... 8.5.3, 8.5.6C, and Ethnic Affairs (1988) 20 FCR 104
8.5.7, 8.5.9C, 8.5.21 .... 10.2.17
Osmond v Public Service Board of New South — v — (1989) 167 CLR 637; 18 ALD 673; 88
Wales [1984] 3 NSWLR 447 .... 16.3.4, ALR 517 .... 16.1.6, 16.1.16, 16.1.29, 17.8.3,
16.3.7, 16.3.14C 17.8.4, 17.8.6C, 17.8.8, 17.8.9
Oshlack v Richmond River Council (1998) 193 Parnell and Department of the Prime Minister
CLR 72 .... 10.3.15 and Cabinet [2012] AICmr 31 .... 19.2.7

xlv

Spi-Creyke et al - Control of Government Action - Text Cases and Commentary 5th ed Ch.FM.indd xlv 26/09/2018   10:13:10
204279
Other documents randomly have
different content
Children improvised a number of games in the same manner as our
own children do today in copying their parents. They played house
with limbless but dressed dolls, made and used toy bows and
arrows, and made sling shots, too. They commonly tried juggling
two stones in one hand, spun acorn tops by hand, and in some
instances noise makers such as wooden buzzers and bull roarers
were used. In play, loud noise was not condoned, however.

Small feasts might occur at any time and were perhaps the most
important social gatherings of Atsugewi. They were usually sparked
by a temporary abundance of food. Dancing was not included.

Child’s acorn top

Mr. Garth describes the Atsugewi “... grand occasion ... held only
when a large supply of food had been accumulated, was the bagapi
or ‘big time’.... The chief called a meeting to decide on the date and
then sent his people to various places for deer and other foods.
Knotted strings (rokuki) with a knot tied for each intervening day
before the festival were sent to other villages. By untying a knot
each day other chieftains knew when to start for the host’s village.
The host chief stood on the roof of his earth lodge and welcomed
the visitor, calling each chief by name: ‘Don’t fall down. Step 128
carefully. I’m glad you have come to see me. Don’t be in a
hurry.’... Toward evening the visitors might give a dance, after which
the host chief called everyone to eat. Large baskets containing acorn
mush, meat, sunflower seeds, and other foods were placed on the
ground. The host proffered baskets of food to each visiting chief who
in turn then distributed the food to his people. In winter two tribal
groups on opposite sides of the sweat house might have a
competitive sweat dance, vying to see which could endure the heat
longest. In summer the sweating was usually omitted, and games of
chance were begun. In the several days that followed, foot racing,
archery, weight lifting, and other contests were indulged in. Large
bets were made by opposing sides on the outcome of each contest,
and the losing side at the end of the week’s festivities often had little
property left. Surplus food was divided among the guests before
they departed.”

129
 Chapter XXII
DANCES
Mountain Maidu had more dances and more types of dances than
other tribes of the Lassen area. Tribes of the Sacramento Valley had
many more and more complicated dance ceremonies than ours did.

Mountain Maidu had formalized sweat dances which were performed

inside large dwelling lodges at night and were participated in by both
sexes. As in the case of Yana, only one man, the leader, sang and hit
the central pole rhythmically with a split stick rattle. The dancers
performed simultaneously but in one spot until they were exhausted
and took a cold swim afterwards.

Of the less ceremonial Atsugewi sweat dance, Garth states:

“... Men danced naked except for circlets ... of twisted grass
around the waist, head and upper arm, and occasionally from one
shoulder diagonally across the chest.... Three or four lines of black
or white paint might be drawn across the chest and upper arm.
Women wore a skirt and only a small amount of paint. The
dancing took place in the combination sweat, dance, and dwelling
house of the chief or head man.... The fire was built high with dry
mountain mahogany ..., pine ..., and sometimes with willow ..., all
woods which burned without much smoke; the ventilator door was
closed and the dance began. The one singer sat in a corner and
beat time with a split stick rattle.... Each of ten or twelve dancers
might approach close to the fire to show his ability to endure heat,
pick up burning brands, one in each hand, and alternately hit one
upper arm and then the other with the brands. The heat often
became so intense that water had to be thrown on the center post
to prevent its catching fire. There was rivalry to see who could
stay inside longest, and after a time one man after another
 emerged and dived into the icy water nearby or rolled in the snow.
There might be sweating three or four nights in succession on the
occasion of a communal hunt.”

Mountain Maidu held a dance gathering each spring for Black Bear
and Grizzly Bear. They believed that this dance had been done by
animals in mythical “before Indian times”. This gathering lasted three
days and nights, but the actual dance was in progress only one day
and night. Only women danced but men participated in the
ceremony dressed in bear robes. There was much feasting 130
too.

The pre- and post-war dances are discussed under the chapter on
war.

131
 Chapter XXIII
POLITICAL ORGANIZATION OF TRIBES
Tribes, as we think of them, were non-existent as political units, and
hence there were no tribal chiefs, but there were village chiefs, in
the California province.

The self governing unit was always a village or a group of small

closely adjacent villages. This is the political unit which was
governed by the chief. Villages might consist of from four to about
twenty-five earth lodges and bark huts with populations of from
twenty-five to a hundred or more persons. Influential leaders,
usually of much wealth—but not necessarily so—were recognized as
head-men, exercising considerable authority over the smaller villages
or separated groups of houses near villages. However the head-
man’s authority was subservient to that of the chief.

Chieftainship was inherited through the father’s lineage, the oldest

son being the first in succession. However, if the son were too young
to take over, the deceased chief’s brother was temporarily in charge.
The qualities of good character and knowledge were also important
qualifications for chieftainship, and a chief could be deposed if he
were not a good one. Tenure was normally for life, dependent upon
satisfactory behavior and performance of his responsibilities.

The chief’s relatives hunted and fished for him, but he fed visitors
and provided most of the food for feasts. The chief always directed
community economic activities such as group fishing, deer hunting,
and root digging expeditions. For this reason chiefs had to know
much about game, fish runs, ripening seasons, et cetera, and had to
possess good judgement to insure success of group undertakings.
Chiefs also spoke to their people mornings and evenings, and at
ceremonies and the like. Chiefs furthermore declared days of rest
when chores were done about home. Another function was to
arbitrate quarrels among the people.

Mountain Maidu villages had assistant chiefs besides, who were sons
or brothers of the chiefs. This assistant advised the chief and
substituted for him as the occasion demanded. A specific duty of his
was the division of food at ceremonies.

Some chiefs had secondary female chiefs who in the case of the
Maidu were daughters, among Atsugewi the chiefs’ wives. A woman
in this capacity supervised preparation of food for feasts and in
Atsugewi villages might give orders to men.

Atsugewi chiefs appointed clowns at ceremonies who were paid.

Appointed messengers were a part of every chief’s staff. They 132
were selected on the basis of both willingness to serve and
ability. Maidu had about six messengers per village while the number
varied among Atsugewi. Messengers were good speakers, reliable
men, and were discharged if they failed in their duties. These
included not only message running, but among Atsugewi, tending
fires at ceremonies. For Maidu chiefs, messengers welcomed guests
and traveled about gathering news and scouting. Special fire tenders
were appointed in this tribe.

Atsugewi chiefs seem to have possessed greater prestige and

authority than those of the mountain Maidu, the Yana, and the Yahi.
The decisions of Atsugewi chiefs were final, but these had to be
diplomatic if the chief were to remain popular. If a chief were
unpopular some of his people would move to another village leaving
the first chief’s community numerically weaker. Chiefs were generally
well obeyed by rich and poor alike. In return, chiefs unfailingly had
the interests of their people at heart. Atsugewi chiefs, specifically,
set examples of industry, behavior, and judgement for their people.
No doubt this was generally true of the chiefs of units in other local
tribes too.
Because of the greater popularity, prestige, and consequently larger
following of some individual chiefs, they were considerably more
powerful than other chiefs in the same tribe. Such men were
influential to some extent beyond the boundaries of their own
territories.

133
 Chapter XXIV
WAR AND PEACE
Wars were commonly small scale encounters and might be either
within tribes or between tribes. Atsugewi were not often aggressive.
Most tribes at one time or another had differences with neighboring
tribes, but friendly relations were usually re-established soon.
Certain tribes, however, were repeatedly or traditionally enemies, as
for instance, Klamath, Paiute, or Modoc against Atsugewi; Washoe
against mountain Maidu; Achomawi or Wintun against the Yana
tribes; and mountain Maidu or Wintun against Yahi. Tribes
sometimes helped each other in wars, and either payment or
reciprocal aid was usually forthcoming.

Causes of hostilities in the Lassen area were usually revenge for

murders (if uncompensated), abduction of women and children, or
insults to chiefs. Mountain Maidu, Yana, and Yahi also waged wars
on account of poaching, rape, alleged witchcraft, and the like. All
able bodied men normally went to war, but mountain Maidu left
some at home to protect the women.

Chiefs generally did not participate in the fighting although they

often went along on the war expedition. Instead of leading the
battles themselves, chiefs appointed special warrior leaders who
were principal targets of the opposition. Such battle leaders were
often head-men, but always were men competent to lead the fight
and who had good arrow dodging power.

Shamans habitually went to war, but did not fight actively except on
occasion. They were busy singing during battle and urging the
warriors on or exhorting supernatural help. The Atsugewi shaman
reportedly “stayed behind a tree all the time giving out his power”.
Preparation for war consisted of practicing dodging arrows, shooting
arrows, in some cases at effigies, and in dancing. The main purpose
of the preparation was to incite enthusiasm for the fight. This was so
successful that quite a commotion developed in the community, to
the extent that such incidents occurred as warriors with knives
chasing women and a man shooting his own dog with an arrow!
Preparatory war dances were held outside near the villages. Both
men and women participated and shamans sang. Mountain Maidu
sustained their dances for several days. Warriors spoke to their
arrows addressing them as persons. Atsugewi men painted
themselves with white and black stripes on faces, limbs, and bodies.
Yana used red and white war paint. Mountain Maidu wore 134
head nets and bands. Dried untanned skins of bear, elk, and
such were worn at dances as well as in battle, as were waistcoat
armors of strong vertical sticks lashed together. Leather helmets
were worn by some warriors.

The enemy was usually attacked just at dawn using the element of
surprise to the fullest extent possible. Some battles were pre-
arranged in which a number of participants faced each other in well
formed lines. Such conflicts were subject to “calling off” if too many
men were injured or killed. Serious raids, however, did not give
quarter and men, women, and children were killed. Booty was taken
and scalps, too, were stripped from fallen victims. Scalps were later
burned by Atsugewi, but mountain Maidu dried human scalps on
frames. This tribe also took entire heads from bodies on occasion.
Prisoners were taken too: Atsugewi not infrequently adopted
captured children. Captive women might be mistreated and raped,
then killed. Adult prisoners might escape with relative ease because
there was no suitable way to confine them permanently, and some
were returned voluntarily.

While the war party was away on its expedition, the women at home
danced individually in the manner of the war dance. They sang and
prayed to help the men at war. Atsugewi women dancers carried
feathers, bows, and arrows, but rattles were not used in these
morale dances.

Upon return of the war party a victory dance was held in or near the
village in the open air. Men and women danced independently, but
together at the same time. Atsugewi men painted themselves red
and white instead of the black and white used for the pre-war
dance. They wore headdresses of all sorts and the warriors carried
their bows, arrows, armor, and other fighting gear while dancing.
The victory dance took place around a fire. Next to the fire Atsugewi
planted a short pole on which the new scalps were displayed while
mountain Maidu danced with the scalps secured to hand-carried
sticks. It is worth noting that while some readers may consider this
gloating over human scalps to be a primitive morbidity, it is true that
often white men—the very pioneers we eulogize—took and coveted
human scalps themselves.

Warriors, particularly those who had killed adversaries, purified

themselves by swimming, rubbing aromatic plants on their bodies,
praying for luck. They did not eat meat for from a few to many days,
depending on the tribe. Among Atsugewi they also sweated with the
same end in view, and women brushed the men’s bodies with plant
materials to aid the purification process.

Surprisingly, the eating of hot foods and any form of meat 135
was taboo to wounded warriors. This seems strange, since
these are the very foods which we consider beneficial to injured
persons.

When an attack appeared likely upon an Atsugewi village, the whole

population retired to high ground which was easily defended. Such
sites were prepared in advance and might be considered crude forts
as they were surrounded by rock walls and provided with shelters for
the non-combatants.
In intertribal wars there was usually no compensation as such made
where the encounter had been motivated by the satisfaction of
securing revenge. In the case of feuds or murders within the tribe
payment was made to relatives of the slain. If persons on both sides
were slain compensation was made for all the dead. The chief or
head-man supervised the peace negotiations. Payment was usually
in beads or money, but Atsugewi sometimes paid off in women or in
the amount of the usual price of a bride. In this tribe too, the
amount of compensation was made according to the wealth of the
victim. A poor man’s life was not considered to be worth as much as
a rich man’s. Atsugewi had a settlement dance meeting in which
both sides were present and wore fighting regalia. These dancers
disarmed themselves after the payment had been made.
136
 Chapter XXV
BIRTH AND BABIES
The natural function of birth obviously varied only in details of
handling the situation, delivery assistance, disposition of the
afterbirth, and methods of cutting and treating the child’s umbilical
cord. The baby was born in a separate hut which contained a trench
heated with coals. These were covered with grass and pine needles
or fir boughs. On this warm green bed the woman lay at least a part
of the time during labor and also after delivery.

Children were desired and a barren woman was looked down on

socially. Inability to produce children was grounds for divorce. The
behavior of both parents during pregnancy was believed to closely
affect personality and health of the child.

After giving birth, the mother remained in isolation for from nearly a
week to a month or more. Many taboos were imposed upon her.
Bathing in streams and sweat baths, eating fresh or dried meat or
fish, grease, and often salt were forbidden to her. Most tribes of the
Lassen area also prohibited combing of the mother’s hair by herself
during the period of isolation. Also taboo was scratching herself with
her hands, making baskets, preparing food, or traveling.
Front and side views of Atsugewi cradle basket for a very young
baby. (tseh-nay-gow)

137
Atsugewi young baby carrying basket or teseh-nay-gow

There were restrictions on the father of the newly born child too.
Among Atsugewi and Yana he stayed with the mother, but mountain
Maidu fathers stayed away for periods of a week or less.
Immediately after the birth had taken place, the father ran to the
woods to break up and bring home quantities of fire-wood. Hunting
and fishing of all kinds and traveling were taboo for several weeks in
most cases. Atsugewi and mountain Maidu new fathers were also
forbidden to smoke and gamble, and like their wives, were denied
eating fresh or dried fish, meat, and grease for varying periods up to
a month. Release from taboos occurred with sweating and bathing
among Atsugewi and mountain Maidu. Fathers in these tribes also
gave away the first kill when they resumed hunting.

The mother generally massaged the infant to improve the shape and
proportion of nose, face, limbs, and torso. Shedding of the baby’s
umbilical cord was an important event which the Indians wished to
occur as soon as possible. A variety of odd practices to this end were
employed. The occurrence of the event relieved the parents of
some, or in other cases of all, the post birth taboos. Among most of
our tribes the dried cord was saved until the child reached manhood
or womanhood. It was customarily secured to the cradle basket, but
frequently was subsequently lost. Earlobes might be pierced 138
in early infancy especially if the child were prone to cry
much.
Atsugewi older baby carrying basket or yah-birr-dee. Note the
rounded bottom on A, a modernization. Partial illustration B shows
old style construction with a pointed bottom for thrusting into the
ground.

Two cradle baskets were used. Mountain Maidu made two of similar
oval shape, but the first and smaller one was without a hood.
Atsugewi and Yana tribes made two different types, but both with
rounded carrying handles and sunshades on top. These were
constructed of willow ribs, pine root, and buckskin. The first small
basket was called tseh-nay-gow by Atsugewi and was used for
several months. It was short and with a distinctly rounded basketry
shelf or lip at its lower end. The larger baby basket was called yah-
bih-dee and was practically identical to that of the mountain Maidu.
This was made of the usual twined basketry materials, but was of
different construction. Willow ribs were lashed onto a sturdy one-
piece forked branch frame, the joint being at the bottom. The base
or stem of this Y-piece stuck out below for several inches being
sharpened so that it could be stuck into the ground near the 139
mother in camp or when she was out digging roots in the
fields. Boo-noo-koo-ee-menorra tells of an interesting modification of
the yah-bih-dee today. Its frame is now simply rounded at the
bottom instead of having the pointed end described above. “Most
people have cars now a days” she says, “and that point poked a hole
through the seat of the car. So now we make the round kind.” Our
visitors to Lassen Volcanic National Park are always interested in
names of the “papoose basket”. This term and the words moccasin,
wampum, and so on are no doubt of Indian origin being the actual
words or reasonable facsimiles thereof used by some eastern tribe
for the objects concerned. English speaking Americans have adopted
these names as meaning those particular articles for all Indian
tribes. It may be recalled that earlier in this book, it was pointed out
that each tribe had its own distinct language and so, obviously, each
tribe would have had its own distinct names for these objects. Hence
there is no all inclusive “Indian name” for the cradle basket or
anything else.
Maidu baby carrying basket about thirty five inches long.

The baby was wrapped in tanned buckskin or soft furs, normally

wildcat by the Atsugewi. A pad of grass or padded bark was placed
on the cradle board or basket and then the child was lashed into the
tshe-nay-gow with buckskin straps in a sitting position on the sill
with its feet hanging down. Most tribes used dry grass, pounded
until soft, for diapers, but mountain Maidu used skin material for the
purpose. Babies were kept in the cradle baskets until they were able
to walk. The cradle frame was carried on the mother’s back with a
tump-line passing over her forehead or chest. A series of larger
cradle baskets were made as the child grew, usually three before the
child was allowed to crawl or walk.

The newborn infant was never fed the colostrum from its 140
mother. The baby was either let go without food or given a
cooked meat gruel for nourishment for the first two days or so until
bonafide milk was produced in the mother’s breasts. Children were
nursed as often as they wished and until they were quite large: even
three or four years old.

Names were given to children usually at the age of about a year.

Yana waited even longer, however, until ages of four to six years
before giving real names which for this tribe were habitually of a
hereditary nature. In the meantime, temporary descriptive
nicknames were given. Many real Atsugewi names had meanings,
while those of mountain Maidu and Yana normally did not.
Nevertheless, Yana and to a certain extent other Indians too, might
acquire additional nicknames and descriptive names later in life,
even in adulthood.

Twins were unwanted among all local tribes, probably because of the
double care and feeding responsibilities involved. Mountain Maidu
thought that twins were bad luck and actually feared them. It was
generally believed that twins were caused by the mother having
eaten twinned nutmeats. These, therefore, were carefully avoided.

Killing newborn babies whether illegitimate, twins, crippled, or when

the mother died in childbirth, was practiced only on very rare
occasions. Certainly infanticide was not the rule among any of the
local tribes, but of course was practiced in certain other areas.
Yana baby cradle basket for young baby.

141
 Chapter XXVI
ADULTHOOD RITES
A girl’s attainment of puberty or womanhood was an event of
obvious importance and it was recognized as such by all tribes of the
Lassen region with extensive formal ritual and ceremony for each
individual girl. Only the more important and generally employed
taboos and rites are noted below. There was considerable variation
in details of such matters even among the four tribes with which we
are dealing.

The girl was secluded in a separate hut for from three to six days
and sometimes during the nights too. The taboos she observed
during this time were much like those imposed on a mother giving
birth, but were even more extensive. The young lady must eat from
her own special baskets, not cross streams, avoid contacting men—
especially hunters, refrain from gazing at the sun or moon, et cetera.
Among things she must do were to wear a basketry cap, or special
head bands among some tribes, and have her hair put up in two
knobs wrapped over her shoulders. This had to be done for her as
she was not allowed to touch her own hair. Carrying the deer-hoof
rattle she must run races with other girls, and dance much also,
scratch her head only with a special scratcher, have her earlobes
pierced if this had not already been done, and frequently her nose
septum was punctured too, being kept open by insertion of a round
stick. Among Wintun tribes of the Sacramento Valley some taboos
lasted for from one to three years!

For several nights public dances were held which lasted all night.
Since there was no special ritual for anyone but the girl for whom
the dances were held, these ceremonies were of a joyous nature and
were popular and well attended. In the middle of the night food
provided by the girl’s family was served to all present. Singing with
deer-hoof rattle accompaniment was carried on all night. Intimate
affairs between couples were not unusual during such dances.
During the daytime as well dances were held, but these were of
short duration and participated in chiefly by the women of the
village. At the end of the ordeal the girl bathed and was given new
clothes, ending her taboos.

There was no formal ceremony when boys attained manhood except

that the youths were generally sent alone into the neighboring
mountains for several days to seek special “powers” to give them
skill and luck in certain pursuits such as deer hunting, archery,
fighting, shamanism, and the like.

During menstruation all women had to observe many taboos 142

too. These included eating alone and living in seclusion. They
could eat no meat or fish, fat, or salt, and must not cook. They must
avoid sick persons and hunters, and could not scratch themselves
except with the scratching stick. At the end of the taboo periods of
four or five days, they usually bathed in streams for purification.

Curiously, wives’ menstruations had to be observed by their

husbands in a number of ways. Most common was prohibition of
smoking, and they must eat lightly. Among mountain Maidu the
husband could hunt and fish, but could not eat any flesh; among
Atsugewi the reverse was true.

143
 Chapter XXVII
MARRIAGE AND DIVORCE
Marriage itself was not formalized with any ceremony. It was
common practice for parents to arrange marriages when children
were young and these arrangements, which involved some exchange
of gifts or payment, were usually honored later. Most other
marriages were arranged by parents later when the children had
reached maturity and generally these recognized the children’s
wishes. Both of these types of marriages were the basis for
extensive exchange of presents and visits, details of which differed
among the several tribes. In addition there was almost universal
payment for the girl—about ten strings of clamshell disks was
standard. The boy and girl became husband and wife simply upon
starting to live together, but the new status was usually marked by a
feast participated in by the families concerned. Generally there
followed a period of residence of the couple with one or both of the
in-laws. On occasion marriages grew from intimacies with no
parental negotiations, but such matches were not well regarded by
the community.

Indian men frequently married women from other villages and

occasionally even women from other tribes.

If a wife died her sister was generally obliged to marry the widower.
Likewise, if the husband died it was customary that his brother
would marry the widow. A wise institution was the relationship of the
husband and wife with their in-laws. Neither could speak to nor hand
things directly to the in-law of opposite sex, or in some cases even
to the brothers and sisters of the in-laws; such things had to be
done by a third party. In some instances the mother-in-law even
avoided looking at her son-in-law even though she might like him.
Such arrangements no doubt prevented many arguments and
quarrels, but as far as their own evaluation of these customs were
concerned, the basis lay in the belief that a bear might eat either or
both of the violators of the in-law taboos.

The practice of having more than one wife at a time was common.
One man might have three or four wives, but rarely had more than
two at a time. Rich men or head-men and chiefs were most apt to
have more than two wives.

Divorce was simple indeed. The man just sent the girl back home if
she were barren, lazy, promiscuous, or the like. If he had good
reasons for wanting to get rid of his wife, her purchase price might
be refunded by her family, or else the ex-wife’s sister might 144
be sent to him in exchange, or, sometimes, in addition with
no additional payment. On the other hand, the wife might leave her
husband if she had been badly mistreated, or if the husband did not
provide enough meat and clothing for the family or if he were
unfaithful. In divorce the children were divided. Usually, but not
always, the girls remained with their mother and the boys with their
father. However, divorce was not common among Indians of this
region.

On the whole, morals were high and sexual deviations were

infrequent, although the whole range of such practices were known
to the aborigines. It appears beyond argument that divorces, moral
laxity, and sexual aberrations increased with the coming of white
man.

145
 Chapter XXVIII
DEATH AND BURIAL
Atsugewi and mountain Maidu left the corpse in the house for one
day. They prepared it for burial by dressing it well and adding bead
necklaces, then wrapping it in a hide. Yana did the same, washing
the body first, and although also adorning the corpse with jewelry,
they always removed decorative nose ornaments, replacing these
with simple sticks. According to Voegelin, Atsugewi removed the
body for burial prone and feet first through the wall of the house,
but Garth states that the body was removed through the southern
ventilator passage or through the regular entrance way in the roof.

The mountain Maidu, Yana, Yahi, and usually the Atsugewi bent the
body into a position called flexed. The arms were folded across the
chest and the knees were drawn up against the stomach before
wrapping the corpse in a robe which was then sewn shut. The
mountain Maidu sometimes put the wrapped cadaver into a large
basket. Voegelin was of the opinion that Atsugewi buried their dead
lying flat on their backs, and if so, always with the head toward the
east. It is thought that this prone burial might be a recent innovation
learned from white man.

Mourners among all of our local tribes wailed aloud and brought gifts
for the dead. Women, especially the older ones, mourned vigorously.
To quote Garth again on Atsugewi, of their mourning he states:

“The deceased’s close relatives mourned the hardest, but friends

might also mourn——‘to make them feel better.’ Mourners cried
and rolled on the ground, throwing dirt and hot ashes in their
faces and hair. Some, in their grief, tried to commit suicide, and a
close watch had to be kept over them to prevent their doing so.
Favorite methods were to swallow small bits of (obsidian) or to eat
 a certain kind of spider. Mourners were warned not to cry around
the house near the body but to go to the hills to cry, and also not
to look down when crying or to cry too much. Otherwise they
were subject to bad dreams in which spirits would plague them
and possibly kill them. A mourner might acquire power at this
time. A widow, with possibly a sister to help her, would wail for a
time at daybreak and again in the evening. This lasted for two or
three months, sometimes longer. A widower seldom cried more
than two or three weeks. The widow visited places at 146
which she had camped with her husband, broke up utensils
left there, burned down the brush where he was accustomed to
cut wood, and piled up rocks where they had slept together. A
widower behaved in similar fashion.... If death occurred in a
village, no entertainments could be held for a time; otherwise
relatives of the deceased had the right to break things up and
throw them around. A man would not sing or attend a ‘big time’
gathering until at least a year after death of a close relative.”

If the lodge were to be lived in again, after a person had died in it,
Atsugewi brought in juniper boughs, and these were burned to
purify the house. Bark huts, however, were always burned down
after an occupant had died.

Mountain Maidu children were kept away from the dead and from
the funeral proceedings. In that tribe and probably among all local
tribes, if the deceased were rich the funeral would be much larger
and more pretentious than if the person had been poor. In the
former case the ceremony was followed by a feast. Other tribes
buried the dead in the evening generally within twenty-four hours
after death, but Yana waited three or four days. Mountain Maidu
grave diggers put grass in their mouths. Small shallow graves
sufficed for poor people, in fact, among Atsugewi, at least, poor
people were often buried in small depressions in lava flows and
covered over with convenient rocks.
Enroute to Atsugewi burials no one was permitted to look back, and
water was sprinkled along the path to prevent the dead person’s
spirit from returning to the village. At the grave the dead were asked
aloud please not to look back, for if they did other members of their
families would die soon.

Cremation, that is, burning of corpses was rare among tribes of the
Lassen area. At the battlefield and in other instances of death far
from home, especially in the case of mountain Maidu, burning was
done occasionally. After this the bones were collected, wrapped in
buckskin, and then buried.

The flexed bodies of the dead were always placed in graves facing
eastward. Widows customarily attempted to throw themselves into
the graves, but were restrained from doing so. A basket of water
was invariably placed next to the body, and most personal property
of the deceased was broken and also placed in the grave. The
amount of property so disposed of varied with the tribe. Mountain
Maidu and especially the Yana tribes put practically everything in the
grave. The latter even went so far as to include many gifts of 147
a nature not normally associated with the sex. Aprons and
baskets, for instance, might be placed in a man’s burial. Among
Atsugewi the relatives retained some of the property of the
deceased. Atsugewi might place some food on the grave and mark it
with a vertical stick, but it was not tended later, and the site was
generally soon lost.

In winter a person might be buried shallowly in the floor of a living

house. Next spring the house would be torn down and the dirt walls
caved in. There was variation not only between, but within tribes as
to the final disposition of houses of the deceased. They might be
burned down, a common practice, or they were torn down,
abandoned, temporarily deserted, or torn down and rebuilt. If to be
lived in again, purification of some sort was always practiced, either
by burning juniper boughs in the house, smoking tobacco, bringing
in aromatic plants, or treating the main beams. Among Yana tribes
the family seems to have habitually abandoned the house right after
the funeral and to have burned the whole thing including property
and food of all the inmates, retaining only the barest necessities of
life such as sleeping robes.

Among Atsugewi all mourners had to deny themselves meat and

fresh fish for one day; then they sweated and swam after the
funeral. Mountain Maidu mourners, including all persons who had
had any part in the funeral, had to undergo four or five days taboo
on eating all flesh. They also had to eat alone and from separate
dishes, do head scratching with special sticks only, were allowed no
hunting, gambling, intercourse, or smoking. Purification of those
persons contaminated by participation in burial included swimming
and washing every day that the taboos were in effect.

Only Atsugewi, of all local tribes, are said to have practiced suicide,
though unquestionably it did occur on occasion among all California
Indians.

Mentioning the name of the deceased in the presence of his relatives

was considered very poor taste, and was actually forbidden in some
cases.

It was forbidden that the widow touch the corpse, so that relatives
had to prepare the body for burial. After the funeral, the widow
always cut her hair off closely. If an Atsugewi, she made a belt out
of it, and the hair belt was then often decorated with shells. In all
local tribes the widow traditionally covered her whole head and face
with pitch and covered this with white diatomaceous earth or black
charcoal. Touching her head or face (the whole body for mountain
Maidu) with fingers was taboo; she could do this only with 148
the scratching stick which mountain Maidu widows wore
around the neck. Raggedy, ill-looking clothes were worn by the
survivor, and Atsugewi widows put pitch on old basketry caps to be
worn. A mourning necklace was worn at all times, made of lumps of
hard pitch strung onto a fiber string. This was worn until remarriage,
which was usually two or three years for Atsugewi and one to three
years for mountain Maidu. Pitch on the face and head was normally
left on until it wore off of its own accord.

The mourning conduct of grieving men who had lost their wives in
death was not nearly so lengthy or as rigorous as was that of
widows. Widowers cut their hair too, but among Atsugewi the only
other observance required was abstinence of flesh eating for a day.
Mountain Maidu widowers spent one sleepless night out in the
mountains. Widowers did not generally sing at dances and at “big
times” for about a year, but this was not compulsory. The Yana are
said to have stayed away from dances for two or three years.

Parents mourning the loss of children cut their hair slightly and
placed some pitch on hair or faces. The Atsugewi mother observed a
three day meat taboo and the Maidu father went to the hills to seek
power. However, loss of a baby in birth or before its navel cord
dropped off was considered a more serious situation. Such bereaved
parents gave all of their belongings away in order to make a fresh
start.

Anniversary mourning rites were not conducted in the Lassen region.

An exception was the rare instance among Atsugewi when a child
was sick at a time just three years after the death of its parent.
Under such circumstances a shaman sang over the child and the
whole remaining family and relatives mourned, later washing
themselves. With respect to the general lack of mourning
anniversaries it is of interest that the foothill (northeast) Maidu held
elaborate annual burnings for several years after death of relatives.
At these great mourning dance ceremonies large quantities of
valuable possessions were burned as sacrifices to honor the dead.

149
Welcome to our website – the ideal destination for book lovers and
knowledge seekers. With a mission to inspire endlessly, we offer a
vast collection of books, ranging from classic literary works to
specialized publications, self-development books, and children's
literature. Each book is a new journey of discovery, expanding
knowledge and enriching the soul of the reade

Our website is not just a platform for buying books, but a bridge
connecting readers to the timeless values of culture and wisdom. With
an elegant, user-friendly interface and an intelligent search system,
we are committed to providing a quick and convenient shopping
experience. Additionally, our special promotions and home delivery
services ensure that you save time and fully enjoy the joy of reading.

Let us accompany you on the journey of exploring knowledge and

personal growth!

ebookultra.com