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Self-Employed and Small
Businesses Ltd [1982] AC 617 R v Ministry of Defence; Ex parte Walker
[2000] UKHL 22 290
372
R v Morley (1976) 2 Burr 1040 353
R v Inland Revenue Commissioners; Ex
parte Unilever plc [1996] STC 681 R v Murray; Ex parte Proctor (1949) 77
CLR 387 28
285
R v IRC; Ex parte Preston [1985] AC 835 R v Nat Bell Liquors Ltd [1922] 2 AC 128
284, 287 236, 237, 339
xxx TABLE OF CASES


R v Shayler [2002] UKHL 11 54
R v North and East Devon Health
R v Sussex; Ex parte McCarthy [1924] 1
Authority; Ex parte Coughlan [2001]
KB 256 318
QB 213 48, 280, 287, 311, 342, 372
R v Toohey; Ex parte Northern Land
R v Northumberland Compensation
Council (1981) 151 CLR 170 151,
Commission Appeal Tribunal; Ex parte
Shaw [1952] 1 KB 338 370 198, 199“201, 202, 206, 209, 231,
338
R v Optical Board; Ex parte Qurban
[1933] SASR 1 328 R v War Pensions Entitlement Appeal
Tribunal Ex parte Bott (1933) 50 CLR
R v Panel on Take-overs and Mergers; Ex
228 90, 370
parte Datafin [1987] 1 QB 815 34,
44, 57 R (Bancoult) v Secretary of State for
Foreign and Commonwealth Affairs
R v Press Complaints Commission; Ex
[2001] 2 WLR 1219 150
parte Stewart Brady (1997) 9
AdminLR 274 37 R (Collins) v Lincolnshire Health
Authority [2001] EWCA Civ 1779
R v Quinn; Ex parte Consolidated Foods
Corporation (1977) 138 CLR 1 16 287
R (Core) v Brent, Kensington and Chelsea
R v Refugee Review Tribunal; Ex parte
Aala (2000) 204 CLR 82 339 and Westminster Mental Health NHS
R v Ross-Jones; Ex parte Green (1984) Trust [2001] EWHC Admin 479
156 CLR 185 360 288
R v Secretary for the Home Department; R (Daly) v Secretary of State for the Home
Ex parte Hargreaves [1997] 1 WLR Department [2001] 2 AC 532 320,
906 285 426
R v Secretary of State for Education and R (Mahmood) v Secretary of State for the
Employment; Ex parte Begbie [2000] 1 Home Department [2001] 1 WLR 840
WLR 1115 342, 372 229
R v Secretary of State for Foreign and R (Mugisha) v Secretary of State for the
Home Department [2005] EWHC
Commonwealth Affairs; Ex parte
Bancoult [2006] EWHC 1038 151 2720 292
R v Secretary of State for the Home R on Application of ˜H™ v Ashworth
Hospital Authority [2002] EWCA Civ
Department; Ex parte Al Mehdawi
[1990] 1 AC 876 33 923 182
R v Secretary of State for the Home R (on the application of C, M, P and HM)
Department; Ex parte Bentley [1993] 4 v Brent, Kensington and Chelsea and
All ER 442 150 Westminster Mental Health NHS
Trust [2002] EWHC Admin 181
R v Secretary of State for the Home
Department; Ex parte Daly [2001] 3 288
All ER 433 54 R (on the application of Hopley) v
Liverpool Health Authority [2002]
R v Secretary of State for the Home
Department; Ex parte Hindley [2000] EWHC 1723 34
UKHL 21 290 R (on the application of Isle Lodge
R v Secretary of State for the Home Amenity Committee) v Kettering
Borough Council [2002] EWHC 1132
Department; Ex parte Northumbria
Police Authority [1988] 1 All ER 556 34
148 R (on the application of Mullen) v
R v Secretary of State for the Home Secretary of State for the Home
Department; Ex parte Simms [2002] 2 Department [2002] EWHC Admin
AC 115 26, 61 230 290
xxxi
TABLE OF CASES


Re Coldham; Ex parte Brideson (1989)
R (on the application of Nurse Prescribers
166 CLR 338 85, 353
Limited) v Secretary of State for Health
[2004] EWHC 403 34 Re Connelly and Department of Finance
(1994) 34 ALD 655 123
R (Vary) v Secretary of State for the Home
Department [2004] EWHC 2251 Re Dennis and Secretary, Department of
Transport (1979) 2 ALD 255 94
290
R (Wooder) v Feggetter [2002] EWCA Civ Re Ditfort; Ex parte Deputy Commissioner
of Taxation (NSW) (1988) 83 ALR 365
554 181
Radio 2UE Sydney Pty Ltd v Burns [2005] 153
Re Downie (1985) 8 ALD 496 124
NSWADTAP 69 340
Ramah v Government of Ghana [1968] Re Drake and Minister for Immigration
and Ethnic Affairs (No 2) (1979) 2
AC 192 235
ALD 634 97, 227, 259
Rayjon Properties Pty Ltd v
Re Fewster and Department of Prime
Director-General, Department of
Minister and Cabinet (No 2) (1987) 13
Housing, Local Government and
ALD 139 126
Planning [1995] 2 Qd R 559 167
Re Gee and Director-General of Social
Re Adams and The Tax Agents™ Board
(1976) 1 ALD 251 82 Services (1981) 3 ALD 132 90
Re Advocacy for the Aged Association Inc Re Greenham and Minister for Capital
Territory (1979) 2 ALD 137 85, 86
and Secretary, Department of Social
Security (1991) 25 ALD 535 94 Re Hanbury-Sparrow and Department of
Foreign Affairs (1997) 47 ALD 779
Re Anderson and Department of the
Special Minister of State (No 2) (1986) 120
4 AAR 414 124 Re Heaney and Public Service Board
(1984) 6 ALD 310 124
Re Ascic and Australian Federal Police
(1986) 11 ALN N184 127 Re Howard and the Treasurer (1985) 7
ALD 645 125
Re Australian Stevedoring Industry
Re Jarman; Ex parte Cook (1997) 188
Board; Ex parte Melbourne Stevedoring
Co Pty Ltd (1953) 88 CLR 100 CLR 595 378
Re JRL; Ex parte CJL (1986) 161 CLR 342
349
318, 325
Re Bartlett and Department of Prime
Minister and Cabinet (1987) 12 ALD Re Kamminga and Australian National
659 126 University (1992) 26 ALD 585 126
Re Bienstein and Commonwealth Re Kearsley Shire Council; Ex parte
Ombudsman (2003) 38 AAR 270 Hebburn Ltd (1947) 47 SR (NSW) 416
94 338
Re Birrell and Department of Premier and Re Lawless and Secretary, Law
Cabinet (Nos 1 and 2) (1986) 1 VAR Department (1985) 1 VAR 42 124
230 124 Re Lianos and Secretary, Department of
Re Bolton; Ex parte Beane (1987) 162 Social Security (1985)7 ALD 473
CLR 514 62 124
Re Brennan and Law Society of the Re Lianos and Secretary, Department of
Social Security (No 2) (1985) 9 ALD
Australian Capital Territory (No 2)
(1985) 8 ALD 10 127 43 124
Re Macks; Ex parte Saint (2000) 204
Re Brennan and the Law Society of the
ACT (1984) 6 ALD 428 118 CLR 158 334
Re Chandra and Minister for Immigration Re Mann and Capital Territory Health
and Ethnic Affairs (1984) 6 ALN N257 Commission (No 2) (1983) 5 ALN
N368 118
127
xxxii TABLE OF CASES


271, 275, 330, 335, 338, 341,
Re McBain; Ex parte Catholic Bishops
Conference (2002) 209 CLR 372 366
159, 164, 169, 331, 334, 335, 337, Re Minister for Immigration and
338 Multicultural and Indigenous Affairs;
Ex parte Applicant S190/2002 [2002]
Re McJannet; Ex parte Minister for
HCA 39 179
Employment, Training and Industrial
Relations (Qld) (1995) 184 CLR 620 Re Minister for Immigration and
377 Multicultural and Indigenous Affairs;
Ex parte Palme (2003) 216 CLR 212
Re McKinnon (Cth AAT, 12 December
1995, unreported) 122 174, 180
Re Municipal Council of Randwick; Ex
Re McLindin and Acting Commissioner for
parte SF Bowser and Co (1927) 27 SR
Superannuation (1979) 2 ALD 261
(NSW) 209 211
94
Re Northumberland Compensation
Re Medicaments and Related Classes of
Goods (No 2) [2001] 1 WLR 700 323 Appeal Tribunal, Ex parte Shaw
[1951] 1 KB 711 237
Re Millis and National Archives of
Australia [2000] AATA 565 125 Re O™Grady and Australian Federal Police
(1983) 5 ALN N420 118
Re Minister for Immigration and
Re Page v Metropolitan Transit Authority
Multicultural Affairs; Ex parte
(1988) 2 VAR 243 127
Applicant S20/2002 (2003) 198 ALR
Re Patterson; Ex parte Taylor (2001) 182
59 3, 11, 12, 13, 31, 186, 188, 193,
ALR 657 3, 192, 254, 338
218, 220, 221“222, 223, 224, 225,
230, 233, 242, 252, 331, 335, 338, Re Pinder and Medical Practitioners
Board (1996) 10 VAR 75 127
341
Re Pochi v Minister for Immigration and
Re Minister for Immigration and
Ethnic Affairs (1979) 2 ALD 33 91,
Multicultural Affairs; Ex parte
Applicants S134/2002 (2003) 211 235, 241, 247
CLR 411 251, 343 Re Prodan and Secretary, Department of
Family and Community Services
Re Minister for Immigration and
(2002) 71 ALD 700 94
Multicultural Affairs; Ex parte Cohen
(2001) 177 ALR 473 233 Re Public Interest Advocacy Centre and
Department of Community Services
Re Minister for Immigration and
(No 2) 14 AAR 180 127
Multicultural Affairs; Ex parte
Durairajasingham (2000) 168 ALR Re PW Adams Pty Ltd and Australian
407 378 Fisheries Management Authority (No
2) (1995) 38 ALD 435 305
Re Minister for Immigration and
Re Racal Communications Ltd [1981] AC
Multicultural Affairs; Ex parte
Epeabaka (2001) 206 CLR 128 322, 374 238
327 Re Rae and Department of Prime Minister
and Cabinet (1986) 122 ALD 589 124
Re Minister for Immigration and
Multicultural Affairs; Ex parte Lam Re Redfern and University of Canberra
(2003) 214 CLR 1 11, 32, 65, 234, (1995) 38 ALD 457 127
267, 277, 296, 299, 301, 304, 306, Re Refugee Review Tribunal; Ex parte
Aala (2000) 204 CLR 82 11, 31, 241,
307, 309, 311, 312, 313, 320, 341,
342, 379 268, 275, 277, 278, 334, 336, 337,
340, 377
Re Minister for Immigration and
Multicultural Affairs; Ex parte Miah Re Refugee Review Tribunal; Ex parte H
(2001) 206 CLR 57 26, 91, 269, (2001) 179 ALR 425 322
xxxiii
TABLE OF CASES


Health (1994) 125 ALR 337 164,
Re Reynolds and Defence Force Retirement
and Death Benefits Authority (2000) 166, 167, 168, 170
58 ALD 539 94 Riverside Nursing Care v Hon Bronwyn
Bishop (2000) 100 FCR 519 91
Re Sime and Minister for Immigration
Roads Corp v Dacakis [1995] 2 VR 508
and Ethnic Affairs (1995) 21 AAR 369
30
130
Roberts v Hopwood [1925] AC 578 189,
Re SRB and Department of Health,
196
Housing, Local Government and
Community Services (1994) 14 AAR Robinson v South East Queensland
178 122 Indigenous Regional Council of the
Re Staffieri and Commonwealth (1986) Aboriginal and Torres Strait Islander
Commission (1996) 70 FCR 212 164
10 ALD N36 83
Robinson v Western Australian Museum
Re Surf Air and Civil Aviation Authority
(1977) 138 CLR 283 158
(1991) 22 ALD 118 94
Rodway v The Queen (1990) 169 CLR
Re Telstra Australia Ltd and Australian
515 89
Competition and Consumer
Commission [2000] AATA 71 127 Rowland v The Environemntal Agency
Re Tully; Ex parte Wurth (1954) 55 SR [2003] EWCA Vic 1885 291
(NSW) 47 351 Royal Women™s Hospital v Medical
Practitioners Board of Victoria [2006]
Re University of Sydney; Ex parte Forster
[1963] SR (NSW) 723 261 VSCA 85 64, 314
Re Waterford and Department of Treasury Ruangrong v Minister for Immigration
(No 2) (1984) 5 ALD 588 125 and Ethnic Affairs (1998) 14 ALF 773
91
Re Wertheim and Department of Health
(1984) 7 ALD 121 118 Ruddock v Vardarlis (2001) 110 FCR 491
19
Re Woolley; Ex parte Applicants
M276/2003 (2004) 210 ALR 369 Ruddock v Vardarlis (No 2) (2001) 115
FCR 229 20
210
Rush v Commissioner of Police [2006]
Re Young and State Insurance Office
(1986) 1 VAR 267 124 FCA 12 297
Russell v Duke of Norfolk [1949] 1 All ER
Reckley v Minister of Public Safety (No 2)
[1996] 1 AC 527 150 109 272, 273
Reg v Collins Ex parte ACTU-Solo SAAP v Minister for Immigration and
Enterprises Pty Ltd (1976) 50 ALJR Multicultural and Indigenous Affairs
471 376 (2005) 215 ALR 162 363
Salemi v Mackellar (1977) 137 CLR 396
Reid v Secretary of State for Scotland
[1999] 2 WLR 28 239 376
Rendell v Release on Licence Board (1987) Salemi v Mackellar (No 2) (1977) 137
10 NSWLR 499 257, 259 CLR 396 32, 376
Residential Assco Group Ltd v Spalvins Samrein Pty Ltd v Metropolitan Water
(2000) 202 CLR 629 334 Sewerage and Drainage Board (1982)
41 ALR 467 207
RG Capital Radio Ltd v Australian
Broadcasting Authority (2001) 185 Sanders v Snell (1998) 196 CLR 329 306
ALR 573 139, 140 Sarancharkh v Minister for Immigration
and Multicultural Affairs [2001] FCA
Riddell v Secretary, Department of Social
Security (1993) 42 FCR 443 257, 258 1461 249, 251
Ridge v Baldwin [1964] AC 40 266, 370 Satheeskumar v Minister for Immigration
and Multicultural Affairs [1999] FCA
Right to Life Association (NSW) Inc v
1285 93
Department of Human Services and
xxxiv TABLE OF CASES


Save Bell Park Group v Kennedy [2002] Seguin Moreau, Australia v Chief
Executive Officer of Customs (1997) 77
QSC 174 169
FCR 410 219
Save our Suburbs (SOS) (NSW)
Sellamuthu v Minister for Immigration
Incorporated v Electoral Commissioner
and Multicultural Affairs [1999] FCA
of New South Wales (2002) 55
249 93
NSWLR 642 259
Selliah v Minister for Immigration and
Save the Ridge Incorporated v Australian
Multicultural Affairs [1999] FCA 615
Capital Territory (2004) 182 FLR 155
273
169
SFGB v Minister for Immigration and
SBS v Minister for Immigration and
Multicultural and Indigenous Affairs
Multicultural and Indigenous Affairs
(2004) 77 ALD 402 219, 220, 221
[2002] FCAFC 361 29
Sharp v Wakefield [1891] AC 173 3
Schlieske v Minister for Immigration and
Shergold v Tanner [2000] FCA 1420
Ethnic Affairs (1988) 84 ALR 719 66,
296
199
Shop Distributive and Allied Employees
Schmidt v Secretary of State for Home
Affairs [1969] 2 Ch D 149 309 Association v Minister for Industrial
Affairs (SA) (1995) 183 CLR 552 378
Scott v National Trust [1998] 2 All ER
Shulver v Sherry (1992) 28 ALD 570
705 35
219
SDAV v Minister for Immigration and
Sidney Harrison Pty Ltd v City of Tea Tree
Multicultural and Indigenous Affairs
Gully (2001) 112 LGERA 320 328
(2003) 199 ALR 43 330, 341
Silveira v Australian Institute of
Sean Investments Pty Ltd v MacKellar
(1981) 38 ALR 363 52, 185, 189, Management (2001) 113 FCR 218
191, 193, 195 350
Simpson v Attorney-General [1994] 3
Searle Australia v Public Interest Advocacy
Centre (1992) 36 FCR 111 128 NZLR 667 53
Simsek v McPhee (1982) 148 CLR 636
Secretary, Department of Workplace
64
Relations and Small Business v Small
Business and Staff Development Sinclair v Mining Warden at
Training Centre Pty Ltd (2001) 114 Maryborough (1975) 132 CLR 473
FCR 301 128 164, 240, 245
Smith v East Eiloe RDC [1956] AC 736
Secretary of State for Education and
209, 350
Science v Tameside Metropolitan
Borough Council [1977] AC 1014 Smith v General Motor Camp Co Ltd
[1911] AC 188 241
239, 243
Secretary of State for the Home Smith and Grady v United Kingdom
(1999) 29 EHRR 493 54
Department; Ex parte Mahommed
Fayed [1996] EWCA Civ 946 173 Smits v Roach [2006] HCA 36 318, 320,
324, 327
Secretary of State for the Home
Department; Ex parte Pierson [1998] Sodeman v R (1936) 5 CLR 192 95
AC 539 26 Solution 6 Holdings Ltd v Industrial
Secretary of State for the Home Relations Commission of New South
Wales (2004) 60 NSWLR 558 359,
Department v R (on the application of
Rashid) [2005] EWCA Civ 744 292 365
Secretary of State for the Home Somaghi v Minister for Immigration,
Department v Zeqiri [2002] UKHL 3 Local Government and Ethnic Affairs
(1991) 102 ALR 339 275
292
xxxv
TABLE OF CASES


(1986) 13 FCR 511 241, 242, 243,
South Australia v O™Shea (1987) 163 CLR
378 151, 267, 268 244, 246, 250
Telstra Corp Ltd v Kendall (1995) 55 FCR
South Australia v Slipper (2004) 136
221 258
FCR 259 205“206, 274
South Australia v Tanner (1989) 166 CLR Thames Valley Electric Power Board v
NZFP Pulp and Paper Ltd [1994] 2
161 54, 230
NZLR 641 75
South East Asia Fire Bricks Sdn Bhd v
The Repatriation Commission v O™Brien
Non-Metallic Products Manufacturing
(1985) 155 CLR 422 180
Employees Union [1981] AC 363 337
Theophanous v Herald and Weekly Times
State of Victoria v Master Builders™
Ltd (1994) 182 CLR 104 25
Association of Victoria [1995] 2 VR
121 41“42, 48 Thoburn v Sunderland City Council
[2003] QB 151 27
Stead v State Government Insurance
Commission (1986) 161 CLR 141 Thompson v Council of the Municipality
of Randwick (1950) 81 CLR 87
278
Stefan v General Medical Council [1999] 206“207
1 WLR 1293 181 Thompson and R (on the application of) v
Stenhouse v Coleman (1944)69 CLR 457 Minister of State for Children [2005]
EWHC Admin 1378 293
230
Stubbings v UK (1996) 23 EHRR 213 Tickner v Bropho (1993) 114 ALR 409
350 193
Tickner v Chapman (1995) 57 FCR 451
Sullivan v Department of Transport
(1978) 20 ALR 323 93 195
Sun v Minister for Immigration and Timbarra Protection Coalition v Ross
Ethnic Affairs (1997) 151 ALR 505 Mining NL (1999) 46 NSWLR 55
317 241
Sun Alliance Insurance Ltd v Massoud Tobacco Institute of Australia Ltd v
[1989] VR 8 180 National Health and Medical Research
Council (1996) 71 FCR 265 195
Sun Zhan Qui v Minister for Immigration
and Ethnic Affairs [1997] FCA 324 Tooheys Ltd v Minister for Business and
Consumer Affairs (1981) 36 ALR 64
94
164, 170
Sunshine Coast Broadcasters Ltd v
Duncan (1988) 83 ALR 121 53, 227, Toonen v Australia, UN Human Rights
Committee, 1994 71
295
Tramways Case (No 1) (1914) 18 CLR 17
Swan Hill Corporation v Bradbury
(1937) 56 CLR 746 52 377
Transurban City Link v Allan (1999) 95
SZBDF v Minister for Immigration and
FCR 553 168
Multicultural and Indigenous Affairs
(2005) 148 FCR 302 270 Transurban City Link v Allan (2001) 208
CLR 167 171
SZCIJ v Minister for Immigration and
Multicultural Affairs [2006] FCAFC Trobridge v Hardy (1955) 94 CLR 147
62 270 62
SZEGT v Minister for Immigration and Truth About Motorways Pty Ltd v
Multicultural and Indigenous Affairs Macquarie Investment Management
[2005] FCA 1514 270, 276 Ltd (2000) 200 CLR 591 169, 170
Tavita v Minister for Immigration [1994] Twist v Randwick Municipal Council
2 NZLR 257 302 (1976) 136 CLR 106 271
Television Capricornia Pty Ltd v Typing Centre of New South Wales v Toose
(Unreported, New South Wales
Australian Broadcasting Tribunal
xxxvi TABLE OF CASES


Supreme Court, 15 December 1998) Warringah Shire Council v Pittwater
Provisional Council (1992) 26 NSWLR
34, 39“41
491 203, 206, 208
Ultra Tune (Aust) Pty Ltd v Swann (1983)
8 IR 122 360 Water Conservation and Irrigation
Commission (NSW) v Browning
United States Tobacco Co v Minister for
(1947) 74 CLR 492 19, 196
Consumer Affairs (1988) 83 ALR 79
Waterford v Commonwealth (1987) 163
164, 170
CLR 54 128, 217
Vaitaiki v Minister for Immigration and
Ethnic Affairs (1998) 50 ALD 690 Waters v Acting Administrator of the
Northern Territory (1994) 119 ALR
305
557 153, 154
Vakauta v Kelly (1989) 167 CLR 568
327 Waterside Workers™ Federation v JW
Alexander (1918) 25 CLR 434 7
van Alpen v Netherlands, UN Human
Rights Committee, 1990 71 Waterside Workers™ Federation of
Velasquez Rodriguez case, IACHR, Ser C, Australia v Gilchrist, Watt and
Sanderson Ltd (1924) 34 CLR 482
No 4 56
Victoria v Commonwealth (1996) 187 362
Watson v Marshall and Cade (1971) 124
CLR 416 65
CLR 621 62
Victorian Stevedoring and General
Webb v R (1994) 181 CLR 41 320, 322,
Contracting Co Pty Ltd v Dignan
(1931) 46 CLR 73 6 324
Werribee Council v Kerr (1928) 42 CLR 1
Von Einem v Griffin (1998) 72 SASR 110
150 209
VWST v Minister for Immigration and Western Fish Products Ltd v Penrith DC
[1981] 2 All ER 204 28
Multicultural and Indigenous Affairs
[2004] FCAFC 286 221 Western Television Ltd v Australian
Broadcasting Tribunal (1986) 12 FCR
VXDC v Minister for Immigration and
414 244, 246
Multicultural and Indigenous Affairs
(2005) 146 FCR 562 270 Westminster Corporation v London and
W375/01 v Minister for Immigration and North Western Railway Company
Multicultural Affairs (2002) 67 ALD [1905] AC 426 28
757 241 Wetzel v District Court of New South
Wales (1998) 43 NSWLR 687 5,
WACO v Minister for Immigration and
Multicultural Affairs (2003) 77 ALD 1 259
Whalley v Commissioner of Police [2003]
313
NSWSC 273 179
WAIJ v Minister for Immigration and
Whittaker v The King (1928) 41 CLR 230
Multicultural and Indigenous Affairs
(2004) 80 ALD 568 221, 222, 224 62
WAJR v Minister for Immigration and Wilkinson v Clerical Administrative and
Multicultural and Indigenous Affairs Related Employees Superannuation Pty
(2002) 204 ALR 624 270 Ltd (1998) 152 ALR 332 86
WAKK v Minister for Immigration and Williams v Melbourne Corporation
(1933) 49 CLR 142 230
Multicultural and Indigenous Affairs
[2005] FCAFC 225 221, 222, 223 Williams v The Queen (1986) 161 CLR
Walker v Scott (No 1) [1825] NSWSupC 278 62
60 336 Wilson v Minister for Aboriginal and
Torres Strait Islander Affairs (1996)
Wallace v Health Commission of Victoria
[1985] VR 403 119 189 CLR 1 6, 9
xxxvii
TABLE OF CASES


Woolworths Ltd v Pallas Newco Pty Ltd Yates Security Services Pty Ltd v Keating
(2004) 61 NSWLR 707 340 (1990) 25 FCR 1 164
Yung v Adams (1997) 159 CLR 436 91,
Wu v Minister for Immigration and
179
Multicultural and Indigenous
Affairs (2003) 133 FCR 221 270 Zaide v Randwick City Council (2001) 51
NSWLR 342 226
Xenophon v State of South Australia
(2000) 78 SASR 25 144 Zayen Nominees Pty Ltd v Minister for
Health (1983) 47 ALR 158
Xiang Sheng Li v Refugee Review Tribunal
(1996) 45 ALD 193 251 257
Table of statutes


Commonwealth of Australia
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 9
Aboriginal Land Rights (Northern Territory) Act 1976 187
s50(3)(b) 187
Acts Interpretation Act 1901 176
s8 89
s15AA 352
s15AB(2)(d) 63
s50 89
Administrative Appeals Tribunal Act 1975 83, 234
s2A 90, 94
s3(3) 87, 88
s25 87
s27(1) 170
s27(2) 170
s28 176
s28(1) 176
s29 85
s33 90, 92
s33(1)(b) 86
s33(1)(c) 92
s43 84, 86
s43(1) 83
s44(1) 95
s44(7)“(10) 96
Administrative Decisions (Effect of International Instruments) Bill 1995 304
Administrative Decisions (Effect of International Instruments) Bill 1997 304
Administrative Decisions (Judicial Review) Act 1977 13, 140, 144, 164, 175, 176,
219, 233, 234, 242, 332, 360, 361, 373, 379
s2 34
s3 35, 242
s3(1) 34, 57
s5 24, 242, 245, 374
s5(1) 167
s5(1)(c) 260
s5(1)(d) 258, 260
s5(1)(e) 198, 255, 258
s5(1)(f) 244“245, 248
s5(1)(g) 243


xxxix
xl TABLE OF STATUTES


s5(1)(h) 223, 242, 243“245, 248, 250“251
s5(1)(j) 242, 245
s5(2) 185
s5(2)(a) 196
s5(2)(c) 198
s5(2)(e) 255
s5(2)(f) 258
s5(3) 223,243,245,248,250“251
s5(3)(a) 245“247, 250
s5(3)(b) 247“250
s6 242, 245
s6(1)(c) 260
s6(1)(d) 260
s6(1)(e) 198, 255, 258
s6(1)(j) 242, 245
s6(2)(c) 198
s6(2)(e) 255
s6(2)(f) 258
s7 263
s7(1) 263
s13 176
s13(1) 176
s13(11) 176
s13(2) 176
s13(8) 176
s13A(1) 177
s14(1) 177
s16(1)(c) 375
s16(1)(d) 375
s16(2)(a) 375
s16(2)(b) 375
s16(3)(b) 375
s16(3)(c) 375
Aged Care Act 1997
s85.1 87
Archives Act 1983 116, 118
Auditor-General Act 1997 113
Australian Bill of Rights Bill 1985 75
Australian Bill of Rights Bill 2001 75
Australian Securities and Investment Commission Act 2001
s12 257
Broadcasting and Television Act 1942
s83(9) 246
Broadcasting Services Act 1992
s26(1) 140
Civil Aviation Act 1988
s31(1) 87
Constitution
Ch III 210, 211
xli
TABLE OF STATUTES


s2 47
s51(xxix) 210, 307
s61 19, 47, 65, 302, 334
s64 4,47
s66 47
s71 10
s73 360
s75 356, 365, 376
s75(iii) 376
s75(v) 11, 18, 35, 57, 91, 169, 232, 242, 252, 269, 331, 351, 352, 358, 362,
365, 375, 376, 377“378, 379
ss75“76 11
s77 318, 377
s106 18
s109 19, 159
Constitution Alteration (Rights and Freedoms) Bill 1988 75
Corporations Act 2001 35, 136
Customs (Prohibited Imports) Regulations 255, 256
Customs Act 1901 314
s269TACA 314
Environment Protection and Biodiversity Conservation Act 1999
s3(1) 202
s77 176
s487 170
Evidence Act 1995
s138(3)(f) 76
Export Control (Unprocessed Wood) Regulations
r16 170
Federal Court of Australia Act 1976
s19(2) 95
s20(2) 95
s64 57
Freedom of Information (Fees and Charges) Regulations 1987 120
Freedom of Information (Open Government) Bill 2003 117
Freedom of Information Act 1982 106, 116
Part IV 123
Part V 118,129
Part VI 130
s3 117
s4 57
s4(1) 118, 124, 127
s4(5) 124
s8 119
s9 119
s11 119
s11(2) 119
s12 118
s14 119
s15 120
xlii TABLE OF STATUTES


s15(5) 120
s15(6) 120
s15A 120
s16 120
s23 120
s24(1) 122
s24(5) 122
s24A 122
s26(2) 121
s26A 121
s27A 121
s29 120
s30A 120
s32 123
s33 124
s33A 124, 125
s33A(5) 125
s34 124
s34(4) 121
s34A 129
s35 124
s35(4) 121
s36 124,125
s36(1) 125,126
s36(3) 132
s37 126
s38 126
s38(1A) 126
s39(1) 126
s39(2) 126
s40(1) 126
s40(2) 126
s41 127
s41(3) 127
s42 127
s43 128
s44 129
s45 129
s45(1) 129
s45(2) 129
s46 129
s47 129
s47A 129
s54 130
s55“66 131
s57 131
s58(2) 131
s58(3) 132
s58(6) 131
xliii
TABLE OF STATUTES


s58A 132
s58B(2) 132
s63 131
s64 132
s66 132
s91 122
sch 2 118
Freedom of Information Amendment Act 1986 117
Freedom of Information Amendment Act 1996 117
Hazardous Waste (Regulation of Exports and Imports) Act 1989
s58A 170
Human Rights and Equal Opportunity Commission Act 1986 302, 303
s11(1)(f) 73
Human Rights Bill 1973 75
Income Tax Assessment Act 1936 136
s177 29
Judiciary Act 1903 361,378
s31 376
s31“32 57
s33(1)(c) 376
s39B 11, 91, 144
s39B(1) 375
s39B(1) 57
s39B(1A) 376
s39B(1A)(c) 57
s78A 158
Lands Acquisition Act 1989
s24(1) 206
s41 205
s41(1) 205
s42 205
Legislative Instruments Act 2003 135
s5 137,139
s16 138
s16(2) 138
s16(3) 138
s42 139
s42(2) 139
Migration Act 1958 22, 62, 92, 199, 248, 300, 317, 366
div 4B 303
Part 2 div 3 subdiv AB 269, 270
Part 5 92
Part 7 92
Part 7 Div 4 24
Part 8 91, 361, 363
Part VIII 22
s6A(1)(e) 189
s36(2) 249
s51A 270
xliv TABLE OF STATUTES


s54 269
s57 269
s189 253
s353 92
s353(1) 94
s357A 270
s359 92
s420 90
s421(1) 94
s422B 270
s474 29, 300, 331, 354, 355, 362, 364, 376
s474(1) 352
s474(2) 362, 363
s474(3) 363
s476(1) 245
s476(1)(c) 245
s476(4) 245
s486 74
s486A 300
s499 257
s501(2) 301
Migration Amendment (Judicial Review) Bill 2004 364
Migration Legislation Amendment (Judicial Review) Act 2001 376
Migration Legislation Amendment (Procedural Fairness) Act 2002 273
Migration Legislation Amendment (Strengthening of Provisions relating to Character
and Conduct) Act 1998 301
Migration Litigation Reform Act 2005 331
Migration Reform Act 1992 273
Ombudsman Act 1976 101, 103, 104
s5 57
s15 105
s15(1) 72
s15(1)(a)-(v) 71
s15(1)(b) 71
s15(1)(c)(i)-(ii) 71
Parliamentary Charter of Rights and Freedoms Bill 2001 75
Post and Telegraph Act 1901 141
Privacy Act 1988 116, 127
sch 3 57
Public Service Act 1999
s10 342
Racial Discrimination Act 1975 9
Radiocommunications Act 1992
s100(1) 253
Lands Acquisition Act 1989 205
Safety, Rehabilitation and Compensation Act 1988
s60(1) 87
s64 87
xlv
TABLE OF STATUTES


Social Security (Administration) Act 1999
s179 87
sch 3 98
Social Security Act 1947
s107 259
Social Security Act 1991 21
s1246 94
s1270 92
Taxation Administration Act 1953 261
Telecommunications (Interception and Access) Act 1979 106
s20 8
Therapeutic Goods Act 1989 167
Trade Practices Act 1974 170
Veterans™ Entitlements Act 1986
s5Q(1) 88
s34 176
s138 92
s175 87
Wheat Marketing Act 1989 43
Workplace Relations Act 1996 136

Australian Capital Territory
Administrative Appeals Tribunal Act 1989
s28(1) 176
s32 90
s44 84
s46(1) 87
Administrative Decisions (Judicial Review) Act 1989 169, 234, 242
s5(1)(c) 260
s5(1)(d) 260
s5(1)(e) 255,258
s5(2)(c) 198
s5(2)(e) 255
s6(1)(c) 260
s6(1)(d) 260
s6(1)(e) 258
s6(1)(f) 258
s7 263
s13 176
s13(1) 176
s13(2) 176
s17 374
Freedom of Information Act 1989 133
Health Records (Privacy and Access) Act 1997 116
Human Rights Act 2004 51
s30 61
s37 69
s38(1) 68
s39 69
xlvi TABLE OF STATUTES


Legislation Act 2001
s8 138
Public Access to Government Contracts Act 2000 116
Subordinate Legislation Act 2001
s9 138
Territory Records Act 2002 116


New South Wales
Administrative Decisions Tribunal Act 1997
s6 87
s49 176
s49(2) 176
s49(3) 176
s50 176
s63 84
s64 98
s73(3) 90
s73(4)(a) 275
s73(5) 92
s73(5)(b) 92
ss113“115 80
Community Protection Act 1994
s5(1) 10
Constitution Act 1902 47
Freedom of Information Act 1989 125, 133
Health Records and Information Privacy Act 2002 116
Industrial Relations Act 1996
s179 348, 358, 359, 367
Industrial Relations Amendment Act 1996 331
Industrial Relations Amendment Act 2005 331
Law Enforcement Legislation Amendment (Public Safety) Act 2005
s87 71
Legislative Review Amendment Act 2002 69
Occupational Health and Safety Act 2000 359
Privacy and Personal Information Protection Act 1998 116
Public Service Act 1979
s116 177
State Records Act 1998 116
Subordinate Legislation Act 1989
s3 138
Supreme Court Act 1970
s16(1) 373
s16(2) 373
s65 373
s69(3) 373
s69(4) 373
s75 373
xlvii
TABLE OF STATUTES


Northern Territory
Information Act 2002 133
Part 9 116
Interpretation Act
s61 138
Planning Act 1979 199

Queensland
Biological Control Act 1987
s54 176
Freedom of Information Act 1992 133
Judicial Review Act 1991 164, 170
Pt 3 234, 242
s3 176
s4(a) 34
s4(b)(ii) 34
s20(2)(c) 260
s20(2)(d) 260
s20(2)(e) 255, 258
s21(2)(c) 260
s21(2)(d) 260
s21(2)(e) 255,258
s22 263
s23(c) 198
s23(e) 255,258
s30 374
s31(b) 176
s33 176
s33(1) 176
s34 176
Legislative Standards Act 1992
s4 69
Parliamentary Committee Act 1994
s22 69
Public Records Act 2002 116
Statutory Instruments Act 1992
s7 138
s8 138
s9 138

South Australia
Constitution Act 1934
Part 3 47
District Court Act 1991
s42B(2) 87
s42F 84, 90
Freedom of Information Act 1991 133
Gene Technology Act 2001
s180(1) 180
xlviii TABLE OF STATUTES


Legislation Act 2001
sch 1 78
Racing (Proprietary Business) Licensing Act 2000
s47 176
State Records Act 1997 116
Subordinate Legislation Act 1978
s4 138

Tasmania
Archives Act 1983 116
Electricity Supply Industry Act 1995
s95 176
Fisheries Act 1959
s18 170
s23C 170
Freedom of Information Act 1991 133
Judicial Review Act 2000 234, 242
s3 176
s4(1) 34
s17(2)(c) 260
s17(2)(d) 260
s17(2(e) 255, 258
s18(2)(c) 260
s18(2)(d) 260
s18(2)(e) 255, 258
s19 263
s20(c) 198
s20(e) 255
s20(f) 258
s27 374
s28(b) 176
s29 176
s30 176
s30(1) 176
s31 176
Magistrates Court (Administrative Appeals Division) Act 2001
s13 176
s13(2) 176
s13(3) 176
s14 176
s34 90
Subordinate Legislation Act 1992
s3 138

Victoria
Administrative Law Act 1978 180
s2 78, 176
s8 176
s8(1) 176
xlix
TABLE OF STATUTES


s8(3) 176
s8(4) 176
Archeological and Aboriginal Relics Preservation Act 1972 161
Charter of Human Rights and Responsibilities Act 2006 72
s6(2)(c) 72
s28(1) 69
s28(2) 69
s28(3)(a) 69
s28(3)(b) 69
s29 69
s30 53, 68
s32 61
s39 72
Constitution Act 1975
Part 1 47
Freedom of Information Act 1982 133
Gambling Regulation Act 2003
s10.1.24 176
Health Records Act 2001 116
Information Privacy Act 2002 116
Ombudsman Act 1973
s13(1) 72
Parliamentary Committees Act 1968
s4D(a)(iiia)“(iiib) 69
Public Records Act 1973 116
Subordinate Legislation Act 1994
s3 138
s21 68
Victorian Civil and Administrative Tribunal Act 1998
s4 87
s5 170
s25(3) 98
s43 170
s45 170,176
s46(1) 176
s46(2) 176
s51 84
s98 92
s98(d)(1) 90

Western Australia
Freedom of Information Act 1992 133
Industrial Arbitration Act 1912“1952
s108 357
Interpretation Act 1984
s5 138
Mining Act 1978 29
School Education Act 1999
s54 176
l TABLE OF STATUTES


State Administrative Tribunal Act 2004
s17(3) 87
s21 176
s21(4) 176
s21(5) 176
s29 84
s32(2) 90
State Records Act 2000 116

Canada
Federal Court Act RSC 1970
s28 242

European Union
Charter of Fundamental Rights
art 27(1) 60
European Convention on Human Rights 229
art 6(1) 59

New Zealand
Bill of Rights Act 1990 53

South Africa
Constitution
art 8(2) 56

United Kingdom
Administration of Justice (Miscellaneous Provisions) Act 1933 371
Agricultural Marketing Act 1958 19
Asylum and Immigration (Treatment of Claimants etc.) Bill
cl 10(7) 363
Board of Education Act 1899 (62 and 63 Vict, 33)
s1(2) 272
Human Rights Act 1998 2, 6, 51, 55, 230
art 14 52
art 16 52
Judicature Act 1873 369
Local Government Board Act 1871 (34 and 35 Vict, 70)
s3 272
Mental Health Act 1983 181
Nationality, Immigration and Asylum Act 2002 363
Supreme Court Act 1981 372
Tribunals and Inquiries Act 1958 180

United Nations
Convention on the Protection of Refugees 249
Convention on the Rights of the Child 299, 306, 307, 310, 315
art 3 301, 303, 315
art 3(1) 300, 308
li
TABLE OF STATUTES


Convention Relating to the Status of Refugees 303
International Covenant on Civil and Political Rights 60, 73, 76, 303
art 2 71
art 5 64
art 5(1) 56
art 10 2(a) 305
art 12(3) 64
art 14(1) 59
art 19 59
art 19(3) 64
art 21 64
art 22(2) 64
International Covenant on Economic, Social and Cultural Rights 73
arts 4“5 64
art 5(1) 56
Universal Declaration of Human Rights 305
art 29(1) 56

United States of America
Freedom of Information Act 5 USC
s552 116
1
Australian administrative law: The
constitutional and legal matrix
Matthew Groves and HP Lee




Administrative law is difficult to define, and we will not attempt to do so in an
exact way. For most Australian scholars, administrative law might simply mean
the parts of public law that do not include constitutional law “ but many chap-
ters of this book demonstrate that constitutional law and its consequences can
never be entirely separated from administrative law. That said, administrative
law can still be defined in part by reference to constitutional law. Constitutional
law is largely concerned with the nature and scope of the powers held by each
arm of government within the Constitution. Administrative law is all about what
the agencies of the executive government (ministers, departments, agencies and
the individual officials who work within these bodies) can and cannot do. More
particularly, administrative law encompasses the different mechanisms and prin-
ciples that enable people to question or challenge the decisions of these agencies
of government.
While the courts play a significant role in these processes (principally through
the exercise of their judicial review jurisdiction and, to a lesser extent, through
their appellate jurisdiction over many other administrative decisions), they form
only one part of the picture. A defining feature of administrative law is the
important role played by non-judicial bodies, such as tribunals and Ombudsmen,
who receive many more complaints than the courts. Another defining feature of
administrative law is the different remedies offered by its different institutions.
Some can provide a new decision (tribunals are the notable example), while oth-
ers can quash or set aside a decision but cannot make a new decision (this is a
hallmark of judicial review). Others can do neither (Ombudsmen have a recom-
mendatory power and cannot either set aside or remake a decision no matter
how unfair or unlawful it might be). Other avenues cannot possibly affect a deci-
sion (freedom of information [FOI] legislation facilitates access to information,

1
2 AUSTRALIAN ADMINISTRATIVE LAW


which does not itself affect the decision or action to which the information
relates).
The common theme in these different mechanisms of administrative law is an
emphasis on the control of government power. That desire for control is guided by
a range of values that are often gathered under the heading of ˜administrative jus-
tice™. That term is often treated as a doctrine in its own right,1 but administrative
justice is best understood as the sum total of the values or goals of administrative
law. These values include transparency, accountability, consistency, rationality,
impartiality, participation, procedural fairness and reasonable access to judi-
cial and non-judicial grievance mechanisms.2 These values might sometimes be
vague or all-encompassing, but they are useful to explain the underlying purpose
of administrative law. Administrative law does not exist in a vacuum or operate
according to purely legal principles (if there is such a thing). It is always driven
by a concern for fair and proper treatment, even if that concern is not always
openly discussed.
The influences that have shaped Australian administrative law are as diverse
as the values that have driven this process, but three are of particular importance.
One influence is our English common law heritage, from which fundamental com-
mon law doctrines and interpretive principles are drawn. The Australian model
of judicial review originated from the principles that governed English courts in
their exercise of their supervisory jurisdiction to conduct judicial review. Aus-
tralian and English judicial review have become increasingly different, particu-
larly with the radical effect that the Human Rights Act 1998 (UK) has had on
English public law, but Australian administrative law still cannot be fully under-
stood without reference to its English heritage. The Commonwealth Constitution
is another important influence upon Australian administrative law. The adoption
of a written constitution marked a crucial point of difference between Australia
and England. The Constitution introduced a division or separation of powers that
underpins the role of the courts and many other consequences that flow from that
separation, such as the constitutional limitations on judicial power. A further key
influence is the body of reforms, known as the ˜New Administrative Law™, which
were adopted at the Commonwealth level in the 1970s and replicated in whole
or in part in most states and territories. These reforms signalled the birth of a
uniquely Australian system of administrative law that continues to evolve.


A starting proposition: All power has its limits

Administrative law is mostly about power and discretion. The ˜power™ aspect
of administrative law includes those principles which require public officials to
either establish the source of their authority or force them to remain within the
scope of that authority. Authority and similar concepts, such as jurisdiction, are
central to administrative law because they underpin the focus upon the need for
public officials to explain the exercise of their powers. The ˜discretion™ aspect of
3
THE CONSTITUTIONAL AND LEGAL MATRIX


administrative law comes into play after the ˜power™ issues are satisfied. Discretion
means choice “ namely, that an official who is granted power to act or decide is
also granted the freedom to choose from a range of possible outcomes which an
exercise of that power might allow. But administrative law has long decreed that
this freedom is not absolute. Even the most discretionary powers are not taken to
be arbitrary powers. This is a statement of the obvious in a country in which the
˜rule of law™ is recognised as an ˜assumption™ among the ˜traditional conceptions™
buttressing the Australian Constitution.3 Even as far back as 1891, Lord Halsbury
in Sharp v Wakefield4 asserted this distinction in the following terms:

. . . when it is said that something is to be done within the discretion of the authorities
(then) that something is to be done according to the rules of reason and justice, not
according to private opinion, according to law, and not humour. It is to be, not arbitrary,
vague, and fanciful, but legal and regular. And it must be exercised within the limit to
which an honest man competent to the discharge of his office ought to confine himself.5

The High Court of Australia has repeatedly adopted a similar view.6 The idea
that public powers are subject to implicit or unspoken limits is one example of
the wider influence that fundamental common law principles and rules of inter-
pretation can exert on discretionary powers. These principles and rules provide a
background against which the courts can both interpret and control discretionary
powers. Professor Denis Galligan explained:

Any official exercising power does so within a framework of legal and political prin-
ciples, and that these principles are important in the justification and legitimation of
decisions . . . One principle, of particular importance in democratic systems is that
officials to whom powers have been delegated must account for their actions to the
community. The underlying assumption is that all government powers, whether the
sovereign powers of legislatures or the delegated powers of administrative officials, are
held on behalf of the community and therefore account must be made to it. Because of
the difficulties in large and complex societies of requiring accountability in any direct
or populist sense, a network of principles and practices develop which mediate between
the exercise of powers by officials and the community, and thus provide accountability
in a more indirect way.7

The leading works on judicial review adopt a similar view when they argue that
all public powers have implicit limits.8 This view taps into a deeper and more
important aspect of administrative law, which is the notion that the power of
parliament “ and the officials who act under the authority of laws enacted by
parliament “ is subject to unspoken limits. Many of these limits are political in
nature. These are the rules and conventions by which governments act. They
are usually created and enforced in the political arena but other limits on public
power are created and enforced in the legal arena, and this is the province of
administrative law.
The implicit nature of these limits upon public power can be particularly use-
ful to judicial review. Importantly, it enables the courts to enforce those limits
even when not expressly included within legislation (which is usually the case).
4 AUSTRALIAN ADMINISTRATIVE LAW


It also places the onus squarely upon the legislature to restrict or remove these
underlying assumptions.9 But it would be wrong to conceive of the implicit limits
on public power as a concept for judicial review alone. The notion that public
power is limited in nature and that its exercise should always be able to be jus-
tified according to principles of reason and justice underpins every aspect of
administrative law.10


The Constitutional backdrop

The Australian polity is a federal entity. The primary focus of the framers of the
Commonwealth Constitution was the division of legislative powers between the
Commonwealth and the entities comprising the six states. Legislative powers
are exercised in Australia today by a federal parliament, six state parliaments (all
are bicameral, except for Queensland) and legislative assemblies in the Australian
Capital Territory and the Northern Territory. Within these arrangements lie some
foundational principles that have exerted considerable influence over the form
of Australian administrative law.


The role of responsible government
The Commonwealth Constitution provided for a system of representative gov-
ernment. Members of all parliaments are elected by popular vote. In Australian
Capital Television Pty Ltd v Commonwealth11 Mason CJ said:

The very concept of representative government and representative democracy signifies
government by the people through their representatives. Translated into constitutional
terms, it denotes that the sovereign power which resides in the people is exercised on
their behalf by their representatives . . . The point is that the representatives who are
members of Parliament and Ministers of State are not only chosen by the people but
exercise their legislative and executive powers as representatives of the people. And
in the exercise of those powers the representatives of necessity are accountable to the
people for what they do and have a responsibility to take account of the views of the
people on whose behalf they act.12

At federal level, the executive power is vested in the Queen and is exercisable
by the Governor-General as the Queen™s representative. However, the Governor-
General exercises the executive power on the advice of the Federal Executive
Council which comprises Ministers of State who ˜shall hold office during the plea-
sure of the Governor-General™.13 Ministers of State are drawn from the House
of Representatives and the Senate, thus giving expression to the principle of
responsible government.14 Ministers are collectively responsible to parliament.
A government which ceases to command the confidence of the House of Represen-
tatives would have, as a matter of constitutional convention, to resign. Ministers
of State are also individually responsible to parliament in their administration
of their assigned governmental department. They are answerable to parliament
5
THE CONSTITUTIONAL AND LEGAL MATRIX


for the failings of their departments. The courts have recognised that these basic
elements of responsible government underpin all Australian governments,15 but
they have also accepted that the various Australian constitutions give direct effect
to few if any of the requirements of responsible government.16
Doubt is often expressed about elements of responsible government, par-
ticularly whether ministerial responsibility provides an effective form of
accountability.17 The courts have largely avoided this debate though it is clear
that they do not generally accept the availability of ministerial and other forms
of political accountability as a sufficient reason to refrain from exercising their
supervisory jurisdiction. At the same time, however, it is clear that the scope and
intensity of judicial review can be affected by the possible role of political mech-
anisms of accountability, particularly for decisions with a high political content.
Prisoners A to XX inclusive v NSW18 is an example. That case involved a decision
refusing to give condoms to prisoners. The issue had been hotly argued in par-

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