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Law Society Northern Territory
Issue no. 1
Law Society Northern Territory
N O T I C E B O A R D L A W S O C I E T Y N T In respect of the preconditions of s 10, it was required that the Minister be satisfied the expenditure was urgent, not provided for and unforeseen. The Court held that it was not necessary for the need giving rise to the expenditure to arise from a source external to government. Further, whether expenditure was urgent and unforeseen was a matter for the Ministers satisfaction. The Minister had formed the necessary satisfaction in this case. Urgency and whether the expenditure was unforeseen had been dealt with separately and sufficiently. There was no error of law in the Ministers reasons or conclusion. The Court further held that the direction to the Australian Statistician was valid, as the information to be collected was statistical information, collected in relation to matters prescribed in the Census and Statistics Regulation 2016 (Cth). There was nothing in the Act to prevent the Treasurer specifying from whom information was to be collected. Lastly, the Court held that the AEC was authorised to assist in the plebiscite. The Court did not address arguments on standing as it was unnecessary and inappropriate given that the substance of the matter had been fully argued and the Court had decided the grounds had no substance. Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ jointly. Answers to Special Case given. C O N S T I T U T I O N A L L A W Implied freedom of political communication In Brown v State of Tasmania  HCA 43 (18 October 2017) the High Court held invalid sections of the Workplaces (Protection from Protesters) Act 2014 (Tas). The Act prohibited protesters from engaging in conduct on business premises. Those premises relevantly included forestry land, including land on which forestry operations were being carried out. The conduct was also prohibited in business access areas, being areas reasonably necessary to enter or exit business premises. Under the Act, police officers had power to direct people away from business premises or business access areas. It was an offence to return to the land after being directed away or not to comply with a direction to leave, in certain circumstances. Police had power to arrest or impose criminal penalties on persons who refused to leave such areas or who returned to such areas after being directed away. Former Senator Bob Brown and others were protesting in the Lapoinya Forest in North West Tasmania when forestry operations were underway. They were arrested and charged under the Act, but charges were later dropped. They argued that provisions of the Act impermissibly burdened the freedom of political communication implied by the Constitution. A majority of the High Court upheld that argument. Kiefel CJ, Bell and Keane JJ jointly held that the Act burdened the freedom. It also pursued a legitimate purpose. But the provisions were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government. They were therefore invalid. Gageler J, writing separately, took a different view of the test to be applied, but ultimately agreed in the orders of the majority. Nettle J, also writing separately, also agreed in the orders of the majority, but for separate reasons. Gordon J held that one of the impugned sections was invalid, but dissented in respect of the others found to be invalid by the majority. Edelman J dissented in respect of all the impugned sections. Questions to special case answered. Kiefel CJ, Bell, Gageler, Keane, Nettle, and Edelman JJ jointly. Appeal from the Court of Appeal (Vic) allowed. C R I M I N A L L A W Sentencing Current sentencing practices In Director of Public Prosecutions v Charlie Dalgliesh (a pseudonym)  HCA 41 (11 October 2017) the respondent was charged with incest and sexual penetration of a child under sixteen against complainant A, and incest and indecent assault against complainant B. The respondents act of incest against A also caused her to fall pregnant, which pregnancy was later terminated. In respect of the charge of incest against complainant A, the respondent was sentenced to three and a half years imprisonment. The Director appealed, arguing that the sentence was manifestly inadequate. In the Court of Appeal, at the Courts request, the parties made submissions on the adequacy of sentencing practices, to which the Court is required to have regard under the Sentencing Act 1991 (Vic). The Court reviewed the sentencing information and concluded that current sentencing practice did not reflect the gravity of the offence or moral culpability of the offender. However, the Court held that the sentence in this case, although very lenient, was not outside the permissible range as demonstrated by the current sentencing practices. The High Court held that the Court of Appeal was correct to find that the current sentencing practices were manifestly out of step with the gravity of offending and moral culpability. But having done so, the Court should have corrected the effect of the error of principle it recognised. Further, current sentencing practices are just one of the matters for the Court to take into considerationit is not the controlling factor. Kiefel CJ, Bell and Keane JJ jointly; Gageler and Gordon JJ jointly agreeing. Appeal from the Court of Appeal (Vic) allowed.
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