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Published online by Cambridge University Press: 01 January 2025
In the recent Fortescue decision, the High Court made some interesting observations regarding interpretation of the word ‘discrimination’ in the context of the Federal Government's power with respect to taxation in s 51(2) of the Australian Constitution. Coincidentally, the Federal Government has commenced consideration of options for the development of northern regions of Australia. Of course, one option would be to introduce a variable taxation system to encourage businesses and individuals to be based, and/or invest, in northern Australia. This article considers possible constitutional issues associated with variable taxation schemes overtly favouring businesses and individuals based in the ‘north’, given the recent High Court decision.
Thanks to the anonymous referees and the editing team.
1 [2013] HCA 34 (‘Fortescue’).
2 ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to taxation, but so as not to discriminate between States, or parts of States.’
3 The Coalition's 2030 Vision for Developing Northern Australia (June 2013). The Green Paper suggests in relation to northern Australia that ‘the efficacy and targeting of current relocation incentives and personal and business tax incentives could be reviewed’ in the White Paper currently being prepared by the Government, due for release by September 2014. No further detail appears in the Green Paper.
4 This announcement, made in 14 August 2013, suggested a concessional 20% tax rate for companies based in the Northern Territory, compared with a current company tax rate of 30%:Ben Packham and Lauren Wilson, ‘Labor Pledges Lower Company Tax in New Northern Territory Economic Zone’, Ben Packham and Lauren Wilson, The Australian (online), 15 August 2013 <http://www.theaustralian.com.au/national-affairs/election-2013/labor-pledges-lower-company-tax-in-new-northern-territory-economic-zone/story-fn9qr68y-1226697739374>
5 There is some literature on the concept of ‘discrimination’ in the Constitution more generally: see, eg, Amelia, Simpson, ‘The High Court's Conception of Discrimination: Origins, Applications and Implications’ (2007) 29(2) Sydney Law Review 263; Leslie Zines, ‘Form and Substance: Discrimination in Modern Constitutional Law’ (1993) 21 Federal Law Review 136Google Scholar; Glenn, Patmore, ‘Moving Towards a More Substantive Conception of the Anti-Discrimination Principle: Waters v Public Transport Corporation of Victoria Reconsidered’ (1999) 23(1) Melbourne University Law Review 121Google Scholar.
6 Minerals Resource Rent Tax Act 2012 (Cth) s 1.10.
7 Ibid s 10.5.
8 See Part 3.1 of the Minerals Resource Rent Tax Act 2012 (Cth)..
9 See Minerals Resource Rent Tax Act 2012 (Cth) s 30.15(1).
10 Ibid s 25.5. See s 35.10 for what counts as ‘mining expenditure'. It can include both capital and revenue costs. Some examples appear in s 35.20. Some items are excluded, including borrowing costs (s 35.50), royalties (s 35.40) and some acquisition costs (s 35.35).
11 Section 15.5 of the Minerals Resource Rent Tax Act 2012 (Cth) defines this as an interest in a mining venture, including a right to extract taxable resources from an area covered by production rights, and to produce a product that is a taxable resource.
12 Ibid s 20.5.
13 Relevantly here, this principle would prohibit a Commonwealth law that threatened the continued existence of the States, by singling States (or a State) out for special burdens or disabilities to which others were not subject: Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
14 Fortescue [2013] HCA 34 [3].
15 Ibid [3].
16 Ibid [18].
17 Ibid [21].
18 Ibid [32].
19 Ibid [22].
20 Crennan J also referred to the American authorities as being of use: Ibid [164].
21 Ibid [34], [49]. See also Crennan J at [155] and [164] and Kiefel J at [211] and [225]. This is consistent with the earlier High Court decision of Conroy v Carter (1968) 118 CLR 90, 101 (Taylor J, with whom Kitto and Windeyer JJ agreed) and the earlier Privy Council decision in Colonial Sugar Refinery Co v Irving [1906] AC 360, 367:
the rule laid down by the Act is a general one, applicable to all the States alike, and the fact that it operates unequally in the several States arises not from anything done by the Parliament, but from the inequality of the duties imposed by the States themselves.
22 Fortescue [2013] HCA 34 [117].
23 Ibid [104].
24 Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004) 220 CLR 388, 425 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) (‘Permanent Trustee’). Cf McHugh J at 447 and Kirby J at 462.
25 Fortescue [2013] HCA 34 [115–16]. The joint reasons also re-asserted Engineers principles, thereby dismissing ‘reserved powers’ type arguments that the scope of the Commonwealth's taxation power should be read down having regard to existing state laws (at [120–21]), and also rejected an argument that the Commonwealth law offended the Melbourne Corporation principle (at [137]), as did Kiefel J at [229].
26 Elliott v Commonwealth (1936) 54 CLR 657 (‘Elliott’); R v Barger (1908) 6 CLR 41 (‘Barger’).
27 Permanent Trustee (2004) 220 CLR 388, 425 (Gleeson CJ Gummow Hayne Crennan and Heydon JJ); cf McHugh J (447) and Kirby J (462).
28 Hayne Bell and Keane JJ (casting doubt); the others not considering.
29 The Coalition's 2030 Vision for Developing Northern Australia (June 2013); Growing the North: A Plan for Northern Australia (August 2013). The current status of this latter paper is unknown, having been released by the former Prime Minister during the election campaign.
30 The Coalition's 2030 Vision for Developing Northern Australia (June 2013) 19; Sustainable Development for Northern Australia: A Comprehensive Science Review (CSIRO, 2010); Australia in the Asian Century (White Paper, Federal Government, 2012).
31 Australia in the Asian Century (White Paper, Federal Government, 2012).
32 See John Schuring, ‘Detroit's Renaissance Zones: The Economics of Tax Incentives in Metropolitan Location Decisions, the Results of the Zones to Date, and Thoughts on the Future’ (2006) 83 University of Detroit Mercy Law Review 329; Peter Enrich, ‘Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business’ (1996) 110 Harvard Law Review 377; Center for Economic and Business Analysis, Luke Middleton and Steven Maynard-Moody, Literature Review: Tax Abatements and Economic Development Incentives (2001).
33 As indicated, one of these parties announced the policy during the election but subsequently lost the election, and their current view is not known. The other party which won the election is now preparing, in government, a White Paper which will set out proposals more fully.
34 That section provides: The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
35 Leslie, Zines, ‘'Laws for the Government of any Territory’: Section 122 of the Constitution’ (1966) 2 Federal Law Review 72, 73–4Google Scholar.
36 A-G (Cth) v The Queen (1957) 95 CLR 529, 545.
37 ‘The power conferred by s 122 is a plenary power': Berwick Ltd v Gray (1976) 133 CLR 603, 607 (Mason J, with whom Barwick CJ, McTiernan and Murphy JJ agreed).
38 (1969) 119 CLR 564 (‘Teori Tau’).
39 Ibid 570. Interestingly, the Court appeared to create an exception with respect to the s 116 freedom of religion provision, finding that this may constrain Parliament's power under s 122 (at 570). It was not explained why s 122 would be subject to the s 116 limit, but not other express constitutional limits. This view of s 122, ie that it was not constrained by limitations appearing elsewhere in the Constitution, was affirmed and applied in Buchanan v Commonwealth (1913) 16 CLR 315 (s 122 not limited by s 55), R v Bernasconi (1915) 19 CLR 629 (s 122 not limited by s 80), and Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 (s 122 not affected by the distinction between overseas and interstate commerce, on the one hand, and intrastate trade and commerce, on the other, made in s 51(1)). More recently, it has been affirmed and applied by Brennan CJ, Dawson and McHugh JJ in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 538 (Brennan CJ), 550 (Dawson J), and 583 (McHugh J), and by Brennan CJ and Dawson J in Kruger v Commonwealth (1997) 190 CLR 1, 43 (Brennan CJ) and 55 (Dawson J). See, for discussion of the case law, Christopher Horan, ‘Section 122 of the Constitution: A “Disparate and Non-Federal” Power?’ (1997) 25 Federal Law Review 97.
40 Examples include Lamshed v Lake (1958) 99 CLR 132, 142–143 where Dixon CJ claimed that the territories power was subject at least to s118 of the Constitution (the full faith and credit provision) and s 116 (freedom of religion)(with whom Webb and Taylor JJ agreed). Kitto J claimed in the case that s 122 must be interpreted such that the Constitution was one coherent instrument, not as two constitutions, one for the states and one for the territories at 154). See also Spratt v Hermes (1965) 114 CLR 226: ‘this does not mean that (s 122) is not controlled in any respect by others parts of the Constitution’ (242, Barwick CJ), ‘it is an error to compartmentalize the Constitution’ (246, Barwick CJ); 's 122 is not independent of and uncontrolled by other provisions of the Constitution’ (277, Windeyer J); Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, 85 (Dixon J).
41 Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, 85.
42 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 (‘Capital Duplicators’). Section 90 states: ‘On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive'.
43 Capital Duplicators (1992) 177 CLR 248.
44 Ibid 274 (Brennan, Deane and Toohey JJ).
45 Ibid 275 (Brennan, Deane and Toohey JJ).
46 Ibid 274 (Brennan, Deane and Toohey JJ).
47 Ibid 278 (Brennan Deane and Toohey JJ).
48 Ibid 288.
49 (1997) 190 CLR 513, 538 (Brennan CJ), 550 (Dawson J) and 583 (McHugh J). Toohey J declined to overrule Teori Tau (at 560) without expressing great support for the decision.
50 Ibid 565 (Gaudron J), 614 (Gummow J), 647 (Kirby J).
51 (2009) 237 CLR 309 (‘Wurridjal’).
52 French CJ, Gummow, Kirby and Hayne JJ, Heydon, Crennan and Kiefel JJ not deciding.
53 Ibid 386. Their Honours were aware of some arguable inconsistency between this finding and the High Court decision in New South Wales v Commonwealth (2006) 229 CLR 1 (‘WorkChoices’), where the majority held that limits in s 51(35) did not constrain the Commonwealth in the exercise of its s 51(20) power. Gummow and Hayne JJ resolved the conflict by stating that some constitutional restrictions on legislative power are of general application, while other constitutional restrictions on legislative power are confined to that particular head (at 384). The requirement of just terms (Wurridjal) was an example of the former category, the mention of ‘conciliation and arbitration’ in s 51(35) was an example of the latter category. There was precedent for this. In Bourke v State Bank of New South Wales (1990) 170 CLR 276, the High Court found that the restriction in s 51(13) with respect to Commonwealth banking ‘other than state banking’ applied generally, and was not confined to use of that subsection. Their Honours were making the same point as Dixon CJ made in Attorney-General (Cth) v Schmidt (1961) 105 CLR 361, 371–372:
when you have, as you do in [s 51(31)], an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect, it is in accordance with the soundest principles of interpretation to treat that as inconsistent with any construction of other powers conferred in the context which would mean that they included the same subject matter, or produced the same effect and so authorised the same kind of legislation but without the safeguard, restriction or qualification.
(with whom Fullagar, Kitto, Taylor and Windeyer JJ agreed). In an analogous American example, the Supreme Court found in Railway Labor Executives’ Association v Gibbons 455 US 457, 469 (Rehnquist J) (1982) that Congress could not circumvent the uniformity requirement mandated by the Constitution with respect to bankruptcy laws, by asserting that the law in question, ostensibly a bankruptcy law, was supported by Congress’ commerce power, which did not contain an express uniformity requirement.
54 Wurridjal (2009) 237 CLR 309, 419.
55 Another possible head of power that might support the proposed concessional company tax regime for the Northern Territory would be the s 51(20) corporations power. However, the same arguments would apply here as apply to the use of s 122 to implement such a scheme—ie that their exercise in this context should be conditioned on compatibility with the non-discrimination principle found in s 51(2). In the interests of brevity I do not discuss the specific context of s 51(20) any further here.
56 Matthews v Chicory Marketing Board (1938) 60 CLR 263.
57 In turn, this raises the issue of the extent to which the intention of the founding fathers is relevant when interpreting the Constitution today. On this there are obviously a range of views. The High Court dismissed the use of evidence of the founding fathers’ intention in WorkChoices (2006) 229 CLR 1, 97: ‘to pursue the identification of what is said to be “the framers’ intention, much more often than not, is to pursue a mirage’ (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). To be fair, the High Court does not take a consistent position on this issue, with some decisions denouncing the relevance of the founding fathers’ intention, and others purporting to apply it (see, eg, Cole v Whitfield (1988) 165 CLR 360, 385 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).
58 (1908) 6 CLR 41.
59 Ibid, 78.
60 (1992) 177 CLR 248.
61 [2013] HCA 34.
62 In Fortescue, French CJ spoke of the purpose of the section being to create an economic union.
63 Ibid 277 (Brennan, Deane and Toohey JJ), an outcome with which Gaudron J agreed (at 289); Mason CJ, Dawson and McHugh JJ dissented). It should be noted that the meaning of excise and purpose of the provision to which Toohey and Gaudron JJ (along with Dawson J) subscribed in the later case of Ha v New South Wales (1997) 189 CLR 465 was a dissenting view.
64 In an early case, Griffith CJ held that the words ‘States or parts of States’ in s 51(2) should be read to mean ‘or different localities within the Commonwealth': R v Barger (1908) 6 CLR 41, 78. This would solve the problem in the current context with respect to a territory.
65 I claim no economic expertise, but an explanation of locational neutrality in the context of tax discrimination appears in Ruth Mason and Michael Knoll, ‘What is Tax Discrimination?’ (2012) 121 Yale Law Journal 1014, 1041–7. On efficiency of taxation, more generally see Eric Zolt, ‘The Uneasy Case for Uniform Taxation’ (1996) 16 Virginia Tax Review 39, 63–4. The founding fathers feared that the smaller states would be at the mercy of the larger states, so it is sensible to surmise that another reason for the inclusion of s 51(2) and s 99 was to prevent the Commonwealth from favouring New South Wales and Victoria with their taxation policies: Leslie Zines, ‘Form and Substance: Discrimination in Modern Constitutional Law’ (1992) 21 Federal Law Review 136, 137.
66 Again, it is conceded that this was probably not how the founding fathers had intended the section to operate. They were, perhaps, concerned with a federal law that treated one state differently from another state, or one part of a state differently from another part of a given state, rather than discrimination in favour of a territory and against the states.
67 Cameron v Deputy Federal Commissioner of Taxation (1923) 32 CLR 68, involving prescribed rates of livestock to be taken into account in assessing income. In this case, the prescribed rates differed among states and the High Court found a breach of s 51(2).
68 In Commissioner of Taxation of the Commonwealth of Australia v Clyne (1958) 100 CLR 246 (Dixon CJ with whom McTiernan Williams Kitto and Taylor JJ agreed, Webb J disagreeing) (‘Clyne’) found that a Commonwealth zonal taxation system, providing a concessional taxation treatment for taxpayers living in two zones because of the uncongenial conditions and higher cost of living in those zones, would offend s 51(2).
69 Cole v Whitfield (1988) 165 CLR 360, 399 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ); Simpson, above n 5, 277.
70 An example of the High Court's adoption of this approach occurs with respect to the concept of ‘trade and commerce’ in s 51(1) and s 99: Permanent Trustee (2004) 220 CLR 388, 422 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). Amelia Simpson talks of a ‘universal conception of discrimination': Simpson, above n 5.
71 (1989) 168 CLR 461; Cole v Whitfield (1988) 165 CLR 360 (reflecting different contexts of s 117 and s 92 respectively, but both embracing a concept of discrimination involving comparing how the law applies to a ‘local’ and/or intrastate trade and commerce, on the one hand, with how it applies to an interstate trader and/or interstate trade and commerce, on the other).
72 Street v Queensland Bar Association (1989) 168 CLR 461.
73 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436.
74 Ibid 478 (Gaudron and McHugh).See also Austin v Commonwealth (2003) 215 CLR 185, 247:
the essence of the notion of discrimination is said to lie in the unequal treatment of equals or the equal treatment of those who are not equals, where the differential treatment and unequal outcome is not the product of a distinction which is appropriate and adapted to the attainment of a proper objective
(Gaudron, Gummow and Hayne JJ); Street v Queensland Bar Association (1989) 168 CLR 461, 571, explaining that discrimination is treatment that is ‘not appropriate to a real or relevant difference’ (Gaudron J)
75 Permanent Trustee (2004) 220 CLR 388, 425.
76 Ibid 447 (McHugh J), 463 (Kirby J).
77 Fortescue [2013] HCA 34, [115] (Hayne, Bell and Keane JJ).
78 Ibid.
79 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
80 For example, the s 92 guarantee of freedom of interstate trade and commerce: Betfair Pty Ltd v Western Australia (2008) 234 CLR 318. Sir Owen Dixon noted the Australian drafters ‘followed with remarkable fidelity the model of the American instrument of government', and referred to differences as ‘intangible': Jesting Pilate (Law Book Co, 1965) 102, 104. Other
contexts include judicial review (Marbury v Madison 5 US 137 (1803), adopted in Australian Communist Party v Commonwealth (1951) 83 CLR 1, 263 (Fullagar J)), the test of constitutional validity (McCulloch v Maryland 17 US (4 Wheat) 316, 421 (1819) (reasonably appropriate and adapted) (Marshall CJ) (applied in many cases, eg, Commonwealth v Tasmania (1983) 158 CLR 1). See also Winterton, Lee, Glass and Thomson, Australian Constitutional Law: Commentary and Materials (Law Book Co, 2nd ed, 2007) 172; Anthony Gray, ‘Reinterpreting the Trade and Commerce Power’ (2008) 36 Australian Business Law Review 29; Anthony Gray, ‘State-Based Business Licensing and Section 92 of the Constitution’ (2009) 14(2) Deakin Law Review 165; Anthony Gray, ‘Applying Provisions of the Australian Constitution to Protect Rights from Intrusion by State Parliaments’ (2011) 18 Australian Journal of Administrative Law 229, 235–7.
81 Fortescue [2013] HCA 34, [18].
82 The Annotated Constitution of the Australian Commonwealth (1901) 550.
83 Ibid [104] (Hayne, Bell and Keane JJ stating that non-discrimination (in the Australian context) may not be the same as uniformity (in the United States context)).
84 In an early case, the Supreme Court found that the uniformity clause contemplated geographical uniformity of taxation, not necessarily a tax that was inherently uniform in its operation on individuals: Knowlton v Moore 178 US 41, 84–85 (1900). See also the Head Money Cases 112 US 580 (1884). These findings can be hard to reconcile with the validation of the oil tax in United States v Ptasynski 462 US 74 (1983).
85 462 US 74 (1983); Laurence Claus, ‘“Uniform Throughout the United States“: Limits on Taxing as Limits on Spending’ (2001) 18 Constitutional Commentary 517, 532–5; Nelson Lund, ‘The Uniformity Clause’ (1984) 51 University of Chicago Law Review 1193; Gale Norton, ‘The Limitless Federal Taxing Power’ (1985) 8 Harvard Journal of Law and Public Policy 591.
86 So, for instance, with respect to the bankruptcy power, which is stated to require uniformity, the Supreme Court validated a federal law that applied only to one region of the United States, on the basis that the evil to be remedied existed only in that region: Regional Railroad Reorganisation Act Cases 419 US 102 (1974). It later invalidated a bankruptcy law that applied to only one railway company, despite the fact that others were in the same situation: Railway Labor Executives’ Association v Gibbons 455 US 457 (1982). See Dan Schulman, ‘The Constitution, Interest Groups, and the Requirement of Uniformity: The United States Trustee and the Bankruptcy Administrator Programs’ (1995) 74 Nebraska Law Review 91.
87 This is a section that positively contemplates discrimination: Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735. It is accepted that s 96 refers to grants to states, but if s 90 is interpreted to apply to territory laws although it refers to states (Capital Duplicators), there is no reason why s 96 could not apply to a grant to a territory, and again, it is considered contrary to the objects of federation to deny the Commonwealth the right to provide money to a territory government to the same extent that it has power to provide money to a state government. The author is not aware of a High Court decision confirming that a s 96 grant could be made to a territory. The author suggests this issue may not have arisen for decision, because the Commonwealth has in any event the power to make an appropriation to a territory government pursuant to s 81 of the Constitution.
88 This is subject to the High Court's recent s 81 jurisprudence (Pape v Commissioner of Taxation (2009) 238 CLR 1; Williams v Commonwealth (2012) 248 CLR 156, but since the Commonwealth has legislative power over the territories pursuant to s 122, an appropriation would still be possible.
89 Some support for this assertion is taken from Davis v Commonwealth (1988) 166 CLR 79, 100 (Mason CJ Deane and Gaudron JJ).On proportionality, generally, see Nationwide News v Wills (1992) 177 CLR 1, 29 (Mason CJ); Justice Susan Kiefel, ‘Proportionality: A Rule of Reason’ (2012) 23 Public Law Review 85.
90 Thomas Colby, ‘Revitalizing the Forgotten Uniformity Constraint on the Commerce Power’ (2005) 91 Virginia Law Review 249, 339. Lund says that taxes with geographically discriminatory effects must be shown to serve a significant purpose other than the promotion of discrimination: Nelson Lund, ‘The Uniformity Clause’ (1984) 51 University of Chicago Law Review 1193, 1209.
91 Fortescue [2013] HCA 34, [104] (Hayne Bell and Keane JJ).
92 Barger (1908) 6 CLR 41, 78 (Griffith CJ, with whom Barton and O'Connor JJ agreed).
93 Ibid 108. Some care must be taken with the use of this case, tainted as it was by reserved powers reasoning and overruled in that light in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. However, there is no suggestion that these comments of Isaacs J with respect to s 51(2) were tainted by reserved powers reasoning.
94 (1935) 54 CLR 657.
95 Conroy v Carter (1968) 118 CLR 90, 99 (Taylor J, with whom Kitto and Windeyer JJ agreed); 103 (Menzies J, with whom Barwick CJ and McTiernan J agreed) (‘Conroy’); Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32, 39 (Dixon CJ).
96 Elliott (1935) 54 CLR 657, 675.
97 Ibid 674.
98 Ibid 675.
99 Ibid 678.
100 Ibid 704.
101 Ibid 680.
102 He dissented because he was not satisfied that such evidence had been provided. Evatt J also dissented, with six justices deciding the case.
103 As Latham CJ said in Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735, 764: ‘a wise differentiation based upon relevant circumstances is a necessary element in national policy’ (in the context of s 96).
104 Leslie Zines, ‘Form and Substance: Discrimination in Modern Constitutional Law’ (1992) 21 Federal Law Review 136, 137. Later (148), Zines questioned whether giving substantive operation to s 51(2) and s 99 would defeat the ability of the Commonwealth to assist the States which those prohibitions were meant to assist (in other words, parts of Australia other than New South Wales and Victoria).
105 Permanent Trustee (2004) 220 CLR 388, 425 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). Their Honours did not cite references to previous case law such as Barger, Elliott or Conroy in relation to these comments.
106 Fortescue [2013] HCA 34, [115] (Hayne, Bell and Keane JJ).
107 Permanent Trustee (2004) 220 CLR 388, 425 (Gleeson CJ Gummow Hayne Crennan and Heydon JJ); Street v Queensland Bar Association (1989) 189 CLR 461.
108 Hayne, Bell and Keane JJ, [115–116].
109 Williams v Commonwealth (2012) 248 CLR 156.