The Genuine Temporary Entrant (‘GTE’) criterion requires the applicant intends genuinely to stay in Australia temporarily. However, the application of the GTE requirement has been subjective and inconsistent, which significantly affects the integrity of the temporary visa system. In Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (‘Eros’), the practical application and defined scope of the GTE criterion successfully maintained the integrity of the visa system and cohered with the skilled stream of the migration program. This case note canvasses the facts and reasonings of Eros, analyses the lenient and stringent applications in previous cases, and compares the application in Eros with other cases. The holistic approach in Eros reconciles the issues in previous cases and gives rise to a neutral application of the GTE requirement. It can be concluded that the Eros decision is significant in defining and non-subjectively applying the GTE requirements in temporary visa applications.
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Counterfactual causal analysis raises fundamental philosophical questions with far-reaching practical implications for the assessment of compensatory damages. Australian courts frequently skirt around this vexed issue rather than pursuing a coherent, principled approach. The High Court has recently provided much-needed practical guidance on the operation of counterfactuals and the ‘but for’ test. This case note examines Lewis v Australian Capital Territory (‘Lewis’), in which the High Court reaffirmed the centrality of counterfactuals and the ‘but for’ test to the assessment of compensatory damages. This case note canvasses the facts of Lewis, analyses the High Court’s application of counterfactual causal reasoning to give effect to the fundamental compensatory principle, and examines the competing ‘but for’ and ‘material contribution’ causal tests. This case note draws parallels between Lewis (a false imprisonment claim) and Berry v CCL Secure Pty Ltd (a misleading conduct claim), arguing that the two cases (handed down on the same day) are an unambiguous indication from the High Court that Australian courts should apply counterfactual reasoning when calculating loss, subject to certain exceptional circumstances where the ‘but for’ test malfunctions. This case note also addresses the High Court’s sensible rejection in Lewis of the availability of substantial ‘vindicatory damages’ in the absence of loss.
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In the High Court decision of Unions NSW v New South Wales, the main issue was whether the expenditure cap of $500,000 imposed on third-party campaigners pursuant to section 29(10) of the Electoral Funding Act 2018 (NSW) was valid. It was held to be invalid because it impermissibly infringed the implied freedom of political communication. This commentary evaluates the different reasoning taken by the members of the Court. By suggesting a hypothetical example to test the reasoning of the judges, it is submitted that there remains some uncertainty regarding when an expenditure cap is justified. In terms of its precedential value, it will be argued that the plurality’s approach demonstrates that the necessity stage of the structured proportionality analysis is not only a substantive test (ie, focusing on and evaluating the measure itself), but it can also be a procedural test to determine whether Parliament has expressly justified the necessity (ie, evaluating the steps taken to justify the measure). Further, it is argued that the necessity stage may be flexibly reframable as asking whether a limit is ‘minimally impairing’, depending on the situation.
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This case note aims to provide a brief critique of the High Court of Australia’s decision in Alqudsi v The Queen (2016) 258 CLR 203 (‘Alqudsi’), which considered the compatibility of waiver of a jury trial with section 80 of the Constitution. It particularly critiques the joint judgment of Kiefel, Bell and Keane JJ and the joint judgment of Nettle and Gordon JJ for relying heavily on the wording of section 80 and avoiding the broader ambiguities and indeterminacies of the provision. In doing so, this case note argues the decision of Alqudsi would have been better reasoned and more convincing had the Court been more willing to explicitly adopt ‘functionalist’ reasoning in its interpretation of section 80. This highlights the desirability of more wholehearted functionalist reasoning within Australian constitutional interpretation, especially for unsettled provisions such as section 80.
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On 17 August 2017, the High Court delivered a brief judgment in the case of Plaintiff S195/2016 v Minister for Immigration and Border Protection (‘Plaintiff S195/2016’). The Court found against the plaintiff, an Iranian national who sought asylum in Australia. Since 2013, he has been subject to the offshore immigration detention regime and detained on Manus Island at the Manus Regional Processing Centre (‘RPC’) in Papua New Guinea (‘PNG’). The Court unanimously rejected the plaintiff’s claim that the Australian government can only exercise its powers outside Australia for purposes that would be legal under the law of the relevant foreign country. The decision confirmed the Australian government’s power to establish and maintain its offshore immigration detention facility on Manus Island, despite the earlier finding of the PNG Supreme Court that Australia’s arrangement with PNG violated that country’s Constitution.
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