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Now in its third edition, Principles of Administrative Law is a comprehensive and clear

Principles of Administrative Law

account of administrative law in Australia. Drawing upon legal theory and empirical
legal research, the text sets out the essentials of the subject while exploring the law’s
conceptual foundations and underlying principles.

New to this edition

• A new introductory chapter that reframes the book’s approach to Australian
administrative law
• An increased emphasis on the ‘constitutionalisation’ of modern Australian
administrative law
• A thoroughly revised treatment of jurisdictional error and the grounds of review
(administrative law norms)
• Revisions to incorporate legislative changes and important new cases, including:
- the amalgamation of Commonwealth tribunals
- the High Court’s decisions in Li, WZARH and Graham
• A new discussion of the challenges raised by the use of contract as a tool of
governance
• Revised throughout to incorporate recent legislative changes and relevant
materials
Peter Cane is a Senior Research Fellow of Christ’s College at Cambridge, and
Emeritus Distinguished Professor at the Australian National University.
Leighton McDonald is an Associate Professor in the Law School at the Australian
National University.
Kristen Rundle is an Associate Professor in the Melbourne Law School at the
University of Melbourne.
Third
To get the most from this text, read it in conjunction with Cases for Principles of Edition
Administrative Law third edition.

Principles of
McDonald Administrative Law
Rundle

Cane
Cases for
Principles of
Administrative Law
McDonald
Rundle

Cane

Third Edition

Peter Cane
Leighton McDonald

Third Edition
Kristen Rundle

Peter Cane
ISBN 978-0-19-030524-6
Leighton McDonald
Kristen Rundle
9 780190 305246

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 VI CONTENTS

4.6 Administrative law norms and human rights norms........................................................................ 203

4.7 Thinking about administrative law norms ...........................................................................................211

5 ACCESS TO JUDICIAL REVIEW .....................................................................................213

5.1 Two approaches to standing ..................................................................................................................213
5.2 Australian Conservation Foundation and the special interest test ..................................................216
5.3 Standing and specific remedies .............................................................................................................221
5.4 Towards open standing? .........................................................................................................................222

6 RESTRICTING JUDICIAL REVIEW .................................................................................229

6.1 The constitutional foundations of judicial review ............................................................................ 230
6.2 The interpretation of privative clauses: the general approach ...................................................... 233
6.3 Privative clauses and politics ................................................................................................................ 254
6.4 Privative clauses and institutional design ...........................................................................................255

7 TRIBUNALS AND MERITS REVIEW ............................................................................. 258

7.1 Introduction ............................................................................................................................................. 258
7.2 Tribunals ................................................................................................................................................... 260
7.3 The merits review ‘system’ ................................................................................................................... 266
7.4 The Administrative Appeals Tribunal .................................................................................................. 268
7.5 Access to merits review in the AAT ...................................................................................................... 271
7.6 The basis of merits review ......................................................................................................................278
7.7 Outcomes of merits review .................................................................................................................. 288
7.8 Two topics for further reflection.......................................................................................................... 289

8 BEYOND COURTS AND TRIBUNALS.......................................................................... 293

8.1 Introduction ............................................................................................................................................. 294
8.2 Internal processes ....................................................................................................................................297
8.3 Ombudsmen ............................................................................................................................................ 302
8.4 Parliaments ...............................................................................................................................................316

9 FREEDOM OF INFORMATION .....................................................................................327

9.1 What is freedom of information? .........................................................................................................327
9.2 The value of information ....................................................................................................................... 328
9.3 A very short history of FOI in Australia .............................................................................................. 330
9.4 The main functions of FOI regimes ......................................................................................................331
9.5 What is information? ............................................................................................................................. 333
9.6 The federal FOI regime .......................................................................................................................... 333
9.7 The relationship between FOI and cognate bodies of law .............................................................. 340
9.8 Coda: FOI and accountability ............................................................................................................... 342

10 VALUES AND EFFECTS OF ADMINISTRATIVE LAW ................................................. 346

10.1 What is administrative law for? ........................................................................................................... 346
10.2 What does administrative law achieve? ..............................................................................................355

Index ................................................................................................................... 365

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 PREFACE

Law books come in various shapes and sizes. The traditional textbook is very long and sets
out to deal comprehensively with an area of law. A book with ‘introduction’ in its title may be
a sort of short textbook that aims to provide the student with rudimentary rather than detailed
coverage of the subject. A monograph typically has a narrower focus than either a short or
a long text, dealing in depth with one topic or a small set of related topics within an area of
law. Unlike the typical textbook, a monograph will often contain an overarching ‘thesis’ or
‘argument’ that the author wants to explore or defend.
This book does not fall neatly into any of these categories. It is shorter than the typical
textbook but longer than the typical introduction. While we provide no single or unitary
explanation of or argument about administrative law, throughout the book we develop a
number of themes to help the reader find in administrative law a whole that is more than
the sum of its various and often confusing parts. By introducing insights from legal history,
comparative experience, legal theory and empirical legal research, our aim has been to offer
a set of ideas, and to suggest ways of thinking about administrative law that will provide a
path through a dense and confusing mass of detail. In short, we have tried not just to provide
a statement of the law but also to interpret and make some sense of it. This objective has
necessarily required us to leave out a lot of the detail to be found in longer books. However,
we have tried to avoid the trap, into which short books sometimes fall, of making the law
seem more straightforward and clear than it actually is. Not everyone will approve of
our presentation and interpretations of the law or agree with all our arguments; but that
is inevitable and, indeed, desirable. More important by far than simply learning the law is
learning to think critically about the law.
We hope this book will be of interest to readers who already have some knowledge of
the subject in addition to serving its primary objective of facilitating the learning of those
coming to the subject for the first time. To assist with the book’s primary purpose, however, it
is supplemented by a companion volume of cases. Such volumes were originally introduced
(in the United States in the late nineteenth century) to facilitate an interactive, ‘Socratic’ form
of teaching, but more often now they merely provide a sort of portable library of relevant
(and, often, much abridged) readings. Some cases and materials volumes include significant
amounts of connecting ‘text’ as well as questions and comments on the extracts; and such
a volume can be thought of as a sort of ‘illustrated textbook’. Once again, our volume of
cases does not fit this mould. It contains fewer extracts than is typical and those extracts
are generally much longer than is usual. You can read more about how best to use the cases
volume in its preface.

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 VIII PREFACE

In the context of the delivery of university-level administrative law courses, we are

hopeful that the use of this book will free up more class time than might otherwise be
available for intellectually rewarding explorations of the complexities and uncertainties
of the law. By setting out the key principles and essential technical details of the subject,
the book is intended to enable teachers and students to use class time to engage with our
interpretations and arguments, to consider practical applications of the principles we discuss,
and to allow space for critical analysis based on particular cases and other readings that will
also be prescribed. The sort of engagement with administrative law we envisage will enable
students to understand better the limits and promise of administrative law in regulating the
relationship between the ‘governors’ and the ‘governed’ in our society and, thus, the extent
to which administrative law contributes to securing the legitimate exercise of power in an
‘administrative state’.
There have been various significant changes in the law since we wrote the second
edition of this book, and all the chapters have been thoroughly revised. In some instances,
important new developments (such as the High Court’s decision in Minister for Immigration
and Citizenship v Li) have required entire sections of the book to be re-written. More generally,
numerous important cases have been woven into the discussion (including Graham v Minister
for Immigration and Border Protection [2017] HCA 33, which was published just prior to the
completion of the manuscript).
We have also taken the opportunity to make some changes to the structure and content
of the book. Rather than including a standalone chapter devoted to the ‘historical and
constitutional contexts’ of Australian administrative law, in this edition we have preferred
to include historical context in the substantive chapters of the book where it is of particular
assistance in understanding the law’s trajectory. And, as we explain in Chapter 1, this edition
places even greater emphasis than we have previously on the varied manifestations of what
may be described as the ‘constitutionalisation’ of administrative law in Australia.
Another omission from this edition is a chapter on private law in a public context.
We continue to believe that private law plays a significant role in the legal control of the
performance of government functions (and therefore is important to a well-rounded
understanding of administrative law). However, feedback indicated this chapter of the book
was not routinely used in the teaching of administrative law for reasons related to how
curriculum is carved up in Australian law schools. Nevertheless, the role of private law in the
legal regulation of government power continues to receive recognition in the book with the
introduction of a new section (see 2.7) on challenges raised by the use of contract as a tool of
governance. Contract increasingly occupies a central place in the governing of Australia. In
this context, it has the potential, if not the express aim, of excluding judicial review and other
modes of administrative-law accountability. Some treatment of the subject in a book such as
this is, therefore, important.
This edition also includes an entirely re-written introductory chapter that reframes
our presentation of Australian administrative law. We will let that introduction speak for
itself, noting here only that this exercise has resulted not only in a new Chapter 1, but also
in a thoroughly revised and relocated treatment of jurisdictional error (in the discussion of

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 PREFACE IX

remedies in Chapter 3), and significant modifications to Chapter 4 on the grounds of review,
which (we argue) establish what we refer to as ‘administrative law norms’.
Writing this third edition has been a collaborative effort. Kristen and Leighton took the
lead in co-authoring the new Chapter 1; Kristen had primary responsibility for Chapter 5,
the treatment of procedural fairness in Chapter 4, and the section on contract as a tool of
governance (2.7); Peter had responsibility for the revision of Chapters 7–10; and Leighton
had primary responsibility for the remainder. We gratefully thank all the members of the
production team at Oxford University Press for their efficiency and support.
Peter and Leighton are delighted to welcome Kristen to the authorship team. She has
brought invaluable new ideas and fresh perspectives to the writing and editing table (as it
were). Peter thanks the Master and Fellows of Christ’s College, Cambridge, where he now
lives and works. The research facilities and environment of the College are second to none.
Leighton thanks the ANU law school and his colleagues for providing a stimulating
environment for teaching and writing about public law. More particularly, he thanks Will
Bateman, Christos Mantziaris, Dennis Pearce, James Stellios, Daniel Stewart, and Greg Weeks
for continuing to share their deep knowledge of and insights into Australian administrative law.
Some of the ideas in this edition about administrative law norms were originally developed
collaboratively with Will. Marilú Costa also provided important intellectual impetus for re-
thinking Chapter 4. Above all, he thanks Marilú for her constant support and for making even
chilly Canberra days sparkle.
Kristen sincerely thanks her colleagues at Melbourne Law School, in particular Adrienne
Stone, Cheryl Saunders and the larger community of the Centre for Comparative Constitutional
Studies, for making her return to thinking about Australian public law so stimulating and
rewarding. No small credit also goes to her teaching colleagues over the course of 2015–17,
as well as to her superb students. Thanks are also due to Matthew Harper and Stephen
O’Connell, both research assistants with the Centre for Comparative Constitutional Studies,
for their able research assistance. Above all, Kristen would like to thank Leighton and Peter
for inviting her to join such a worthwhile project, and for their consistently collegial and
supportive collaboration.
Peter Cane, Leighton McDonald and Kristen Rundle, October 2017

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 TABLE OF CASES
A v Independent Commission Against Corruption
[2014] NSWCA 414 [6.2.4.1]
Aala’s case see Refugee Review Tribunal; Ex
parte Aala
AB v Western Australia (2011) 281 ALR 694 [4.6]
Abebe v Commonwealth (1999) 197 CLR
510 [1.3]
Aboriginal Legal Service Ltd v Minister for
Aboriginal and Torres Strait Islander Affairs
(1996) 69 FCR 565 [4.3.4]
Acquista Investments Pty Ltd v Urban Renewal
Authority (2015) 123 SASR 147 [2.7]
Adams and Tax Agents Board, Re (1976) 1 ALD
251 [7.5.1.1]
Aerolineas Argentinas (1997) 76 FCR 582 [2.5.1.3]
Aga Khan case see R v Disciplinary Committee of
the Jockey Club, ex parte Aga Khan
Agar v Hyde (2000) 201 CLR 552
Agricultural Societies Council of NSW v
Christie (2016) 340 ALR 560; [2016] NSWCA
331 [2.5.1.4.1], [2.6.1]
Ainsworth v Criminal Justice Commission (1992)
175 CLR 564 [3.5.1.1], [3.5.1.2], [3.5.1.5],
[4.2.2.1], [4.2.2.3]
Aktiebolaget Hassle v Alphapharm Pty Ltd (2002)
212 CLR 411 [4.4.3]
Al-Mehdawi v Secretary of State for the Home
Department [1990] 1 AC 876 [4.2.2.3]
Alphapharm Pty Ltd v SmithKline Beecham
(Australia) Pty Ltd (1994) 49 FC R 250 [4.4.3]
Animal Liberation Ltd v Department of
Environment and Conservation [2007]
NSWSC 221 [5.2]
Animals’ Angels e. V. v Secretary, Department of
Agriculture (2014) 228 FCR 35 [5.2]
Anisminic Ltd v Foreign Compensation
Commission [1969] 2 AC 147 [3.4], [3.7.3],
[6.2.2]
Annetts v McCann (1990) 170 CLR 596 [4.2.2.2]
Ansett Transport Industries (Operations) Pty Ltd v
Commonwealth (1977) 139 CLR 54 [4.3.4]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 10
Antipova v Minister for Immigration and
Multicultural and Indigenous Affairs (2006)
151 FCR 480 [4.2.2.2]
Applicant VEAL of 2002 v Minister for
Immigration and Multicultural and Indigenous
Affairs (2005) 225 CLR 88 [4.2.2.3]
Applied Medical Australia Pty Ltd v Minister for
Health (2016) 246 FCR 555 [2.5.1.3]
Argos Pty Ltd v Corbell (2014) 254 CLR 394 [5.2]
Arnold (on behalf of Australians for Animals)
v State of Queensland (1987) 13 ALD
195 [7.5.2]
Arthur Yates & Company Pty Ltd v Vegetable
Seeds Committee (1945) 72 CLR 37, 81 [1.3]
Associated Provincial Picture Houses Ltd v
Wednesbury Corporation [1948] 1 KB
223 [4.5]
Aston and Department of Primary Industries, Re
(1985) 8 ALD 366 [7.6.3]
Aston Cantlow Parochial Church Council v
Wallbank [2004] 1 AC 546 [2.6.1]
Attorney- General (Cth) v Breckler (1999) 197 CLR
83 [3.7.2]
Attorney- General (NSW) v 2UE Sydney Pty Ltd
(2006) 236 ALR 385 [7.2.1], [7.7]
Attorney- General (NSW) v Quin (1990) 170 CLR
1 [2.2.2], [4.3.3], [4.5], [4.6]
Attorney- General of Hong Kong v Ng Yue Shiu
[1983] 2 AC 629 [4.2.2.1]
Attorney- General v De Keyser’s Royal Hotel [1920]
AC 508 [2.6.2.2.]
Australasian College of Cosmetic Surgery Ltd v
Australian Medical Council Ltd [2015] FCA
468 [2.5.2]
Australian Broadcasting Tribunal v Bond (1990)
170 CLR 321 [2.5.1], [4.2.4], [4.4.1], [4.4.2],
[4.4.2.2], [4.4.3], [7.5.1.1]
Australian Capital Territory Health Authority v
Berkeley Cleaning Group Pty Ltd (1985) 7 FCR
575 [2.5.1.4.1]
Australian Capital Territory Revenue v Alphaone
Pty Ltd (1994) 49 FCR 576 [4.2.2.3]
21/12/2017 11:42 AM

Australian Communications and Media Authority
v Today FM (Sydney) Pty Ltd (2015) 255 CLR
352 [4.6]
Australian Communist Party v Commonwealth
(1951) 83 CLR 1 [2.2.2]
Australian Conservation Foundation Incorporated
v Commonwealth (1980) 146 CLR
493 [5.1], [5.2]
Australian Conservation Foundation Incorporated
v Forestry Commission of Tasmania (1988) 19
FCR 127 [4.3.1]
Australian Education Union v General Manager
of Fair Work Australia (2012) 246 CLR
117 [2.4.1.1]
Australian Fisheries Management Authority v PW
Adams Pty Ltd (1995) 39 ALD 481 [7.6.3]
Australian Heritage Commission v Mount Isa
Mines Ltd (1997) 187 CLR 297 [4.4.2.1.1]
Australian Metal Holdings Pty Ltd and Australian
Securities Commission and Others, Re (1995)
37 ALD 131 [7.6.3]
Australian National University v Burns (1985) 43
ALR 25 [2.5.1.4.1]
Australian National University v Lewins (1996) 68
FCR 87 [2.5.1.3]
Australian Postal Corporation v D’Rozario (2014)
222 FCR 303 [4.4.2.2]
Australian Retailers Association v Reserve Bank of
Australia (2005) 148 FCR 446 [4.4.2.2]
Australian Securities and Investments Commission
v Administrative Appeals Tribunal (2011) 195
FCR 485 [4.4.3]
Australian Securities and Investments Commission
v Edensor Nominees Pty Ltd (2001) 204 CLR
559 [2.4.2]
Automotive, Food Metals, Engineering, Printing
and Kindred Industries Union v ALS
Industrial Australia Pty Ltd (2015) 235 FCR
305 [3.5.1.1]
Avon Downs Pty Ltd v Federal Commissioner of
Taxation (1949) 78 CLR 353 [4.3], [4.5]
Aye v Minister for Immigration and Citizenship
(2010) 187 FCR 449; (2010) 269 ALR
298 [2.5.1.4], [2.6.2.2], [2.6.2.3]
AZAFQ v Minister for Immigration and Border
Protection (2016) 243 FCR 451 [4.3.1]
Azzopardi v Tasman UEB Industries Ltd (1985) 4
NSWLR 139 [4.4.3]
Baba v Parole Board (NSW) (1986) 5 NSWLR
338 [4.2.2.2]
Bank of New South Wales v Commonwealth (1948)
76 CLR 1 [2.4.1.2], [5.1], [6.2.4.1]
Baran and Department of Primary Industries and
Energy, Re (1988) 18 ALD 379 [7.6.4.1]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 11
TABLE OF CASES XI
Bare v Independent Broad-Based Anti- Corruption
Commission [2015] VSCA 197 [4.6]
Barreto v McMullan [2014] WASCA
152 [4.4.2.1.1]
Barton v Commonwealth (1974) 131 CLR
477 [2.6.2.2]
Bass v Permanent Trustees Co Ltd (1999) 198 CLR
334 [3.5.1.5]
Bat Advocacy NSW Inc v Minister for
Environment Protection, Heritage and the
Arts (No 2) (2011) 280 ALR 91 [5.4]
Bateman v Health Insurance Commission (1998)
54 ALD 408 [7.6.3]
Bateman’s Bay Local Aboriginal Land Council v
Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247 [3.5.1.4], [5.1], [5.2], [5.4]
Batterham v QSR Ltd (2006) 225 CLR 237 [6.2.2]
Becker and Minister for Immigration and Ethnic
Affairs, Re (1977) 1 ALD 158 [7.6.3]
Bhardwaj see Minister for Immigration and
Multicultural Affairs v Bhardwaj
Bilborough v Deputy Commissioner of Taxation
(2007) 162 FCR 160 [2.5.1.4.1]
Blewett (1988) 84 ALR 615 [2.5.1.3]
Bodruddaza v Minister for Immigration and
Multicultural Affairs (2007) 228 CLR
651 [2.4.1.1], [3.5.3], [5.1], [6.2.3], [6.2.4.3],
[6.2.4.4]
Boilermakers’ case see R v Kirby; Ex parte
Boilermakers’ Society of Australia
Bond’s case see Australian Broadcasting Tribunal
v Bond
Bondelmonte v Bondelmonte (2017) 341 ALR
179 [4.3.1]
Botany Bay City Council v Minister of State and
Transport and Regional Development (1996)
66 FCR 537 [5.4]
Boyce v Paddington Borough Council [1903] 1 Ch
109 [5.1]
Brandy v Human Rights and Equal Opportunity
Commission (1995) 183 CLR 245 [7.7]
Bread Manufacturers of New South Wales v Evans
(1981) 180 CLR 404 [4.3.4]
Brennan v New South Wales Land and
Housing Corporation [2011] NSWCA
298 [4.4.2.2]
Brian Lawlor Automotive Pty Ltd and Collector
of Customs (NSW), Re (1978) 1 ALD
167 [7.5.1.1], [7.6.1], [7.6.4.2], [7.6.5]
Brian Lawlor Automotive Pty Ltd and Collector
of Customs, Re (NSW) (1978) 1 ALD
167 [7.5.1.1], [7.6.1], [7.6.4.1], [7.6.5]
British Broadcasting Corporation v Johns [1965] 1
Ch 32 [2.6.2.2]
21/12/2017 11:42 AM
 XII TABLE OF CASES
British Imperial Oil Co Ltd v Federal
Commissioner of Taxation (1925) 35 CLR
422 [7.1]
British Oxygen Co Ltd v Minister of Technology
[1971] AC 610 [4.3.3]
Broadbent v Medical Board of Queensland [2011]
FCA 980 [2.4.1.2]
Bruce v Cole (1998) 45 NSWLR 163 [4.4.2.2], [4.6]
Buck v Bavone (1976) 135 CLR 110 [4.4.2.1.2]
Burns v Australian National University (1982) 40
ALR 707 [2.5.1.3]
Byrne v Marles [2008] VR 612 [3.5.1.1]
Cains v Jenkins (1979) 28 ALR 219 [4.2.2.3]
Calvin v Carr [1980] AC 574 [4.2.5.1]
Campbelltown City Council v Vegan (2006) 67
NSWLR 672 [4.2.4]
Carey, Re; Ex parte Exclude Holdings Pty Ltd
(2006) 32 WAR 501 [3.4]
Carltona Ltd v Commissioner of Works [1943] 2 All
ER 560 [4.3.5]
CCSU v Minister for the Civil Service see Council
of Civil Service Unions v Minister for the Civil
Service
Century Metals and Mining NL v Yeomans (1989)
100 ALR 383 [4.2.3]
Century Yuasa Batteries Pty Ltd v Federal
Commissioner of Taxation (1997) 73 FCR
528 [2.5.1.2]
Chapmans v Australian Stock Exchange Ltd (1966)
67 FCR 402 [2.5.1.3]
Chase Oyster Bar Pty Ltd v Hamo Industries Pty
Ltd (2010) 78 NSWLR 393 [2.4.3], [2.6.1],
[3.3], [3.4], [3.5.1.1]
Chen Zhen Zi v Minister for Immigration and
Ethnic Affairs (1994) 48 FCR 591 [4.2.2.3]
Chevron USA, Inc v Natural Resources Defence
Council, Inc, 467 US 837 (1984) [4.4],
[4.4.2.1.1]
Chief Constable of North Wales Police v Evans
[1982] 3 All ER 141 [2.2.1], [2.2.2]
Chittick v Ackland (1984) 1 FCR 254 [2.5.1.4]
Chu Kheng Lim v Minister for Immigration, Local
Government and Ethnic Affairs (1992) 176
CLR 1 [4.6]
Church of Scientology v Woodward (1982) 154
CLR 25 [2.6.2.2], [6.2.4.4]
City of Enfield v Development Assessment
Commission (2000) 199 CLR 135 [2.2.2],
[3.5.1], [4.4], [4.4.2.1.1], [5.4]
City of Port Adelaide Enfield v Bingham (2014) 119
SASR 1 [3.5.1.1]
Civil Aviation Safety Authority v Central Aviation
Pty Ltd (2009) 253 ALR 263, (2009) 179 FCR
554 [4.2.5.2]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 12
Coal and Allied Operations Pty Ltd v Australian
Industrial Relations Commission (2000) 203
CLR 194 [4.4.2.1.2]
Coco v The Queen (1994) 179 CLR 427 [4.1.1],
[4.3], [4.6]
Coffey v Secretary, Department of Social Security
(1999) 56 ALD 338 [7.5.1.1]
Collector of Customs (NSW) v Brian Lawlor
Automotive Pty Ltd (1979) 24 ALR 307, (1979)
2 ALD 1 [3.7], [7.5.1.1]
Collector of Customs v Agfa- Gevaert Ltd (1996)
186 CLR 389 [4.4.1], [4.4.3]
Collector of Customs v Pozzolanic Enterprises Pty
Ltd (1993) 43 FC R 280 [4.4.3]
Colonial Bank of Australiasia v Willan (1874) LR 5
PC 417 [6.1]
Comcare v Eames (2008) 101 ALD 90 [3.3]
Comcare v Etheridge (2006) 149 FC R 522 [4.4.1]
Commissioner for Australian Capital Territory
Revenue v Alphaone Pty Ltd (1994) 49 FCR
576 [4.2.2.3]
Commissioner of Police v Tanos (1958) 98 CLR
383 [4.2.2.2]
Commissioner of State Revenue (Vic) v Royal
Insurance Australia Ltd (1994) 182 CLR
51 [3.5.1.3]
Commissioner of Taxation v Futuris Corp Ltd
(2008) 237 CLR 146 [3.5.3], [6.2.4.1]
Commissioner of Taxation v Primary Health Care
Ltd [2017] 131 [4.3.1]
Committee of Direction of Fruit Marketing v
Delegate of Australian Postal Commission
(1979) 2 ALD 561 [7.6.4.2]
Commonwealth v Mewett (1997) 191 CLR
471 [2.4.3], [2.5.2]
Compensation Appeal Tribunal; Ex parte Shaw
[1952] 1 KB 338 [3.5.1.1]
Construction Forestry Mining and Energy Union
v Director of the Fair Work Building Industry
Inspectorate [2016] HCA 41 [2.4.1.1]
Control Investment Pty Ltd and Australian
Broadcasting Tribunal (No 1), Re (1980) 3 ALD
74 [7.5.1.2], [7.5.2]
Conway v Rimmer [1968] AC 910 [9.7.5]
Cooper v Wandsworth Board of Works (1863) 143
ER 414 [4.6]
Corporation of City of Enfield v Development
Assessment Commission (2000) 199
CLR 135 [2.2.2], [2.6.2], [3.5.1], [4.4],
[4.4.2.1.1], [5.4]
Cotterill v Minister for Immigration and Border
Protection [2016] FCAFC 61 [4.5]
Council of Civil Service Unions v Minister for
the Civil Service [1985] AC 374 [2.6.2.2],
[2.6.2.3], [4.2.2.1]
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Council of the City of Parramatta v Pestell (1972)
128 CLR 305 [4.5]
CPCF v Minister for Immigration and Border
Protection (2015) 255 CLR 514 [3.4], [4.3.4]
Craig v (State of) South Australia (1995) 184
CLR 163; (1995) HCA 58 [3.4], [3.5.1.1],
[4.4.1], [7.7]
Croome v Tasmania (1997) 191 CLR
119 [2.4.1.3], [5.4]
Curragh Queensland Mining Ltd v Davies (1992)
34 FCR 212 [4.4.2.2]
D’Souza v The Royal Australian and New Zealand
College of Psychiatrists (2005) 12 VR 42 [2.6.1]
Darling Casino Ltd v NSW Casino Control
Authority (1997) 191 CLR 602 [6.1], [6.2.1]
Datafin casesee R v Panel on Takeovers and
Mergers, Ex parte Datafin Plc
Davies v Minister for Urban Development and
Planning [2011] SASC 87 [3.5.1.5]
Deputy Commissioner of Taxation v Richard
Walter Pty Ltd (1995) 183 CLR 168 [2.4.1.1],
[2.4.1.2], [2.4.2]
Dimes v Proprietors of the Grand Junction Canal
(1852) 3 HL Cas 759 [4.2.3]
Din v Minister for Immigration and Ethnic Affairs
(1997) 147 ALR 673 [4.3.5]
Director of Public Prosecutions for the Australian
Capital Territory v Martin (2014) 286 FLR
120 [6.1]
Director of Public Prosecutions v Head [1958] 1
QB 132 [3.7.2]
Ditfort, ex parte Deputy Commissioner of
Taxation, Re (1988) 19 FCR 347 [2.6.2.3]
Dorf Industries Pty Ltd v Toose (1994) 127 ALR
654 [2.5.1.4.2]
Drake v Minister for Immigration and Ethnic
Affairs (‘Drake No 1’) (1978) 2 ALD 60 [7.1],
[7.6.1], [7.6.3], [7.6.5]
Drake v Minister for Immigration and Ethnic Affairs
(‘Drake No 2’), Re (1979) 2 ALD 634 [7.6.3]
Dranichnikov v Minister for Immigration
& Multicultural Affairs (2003) 197 ALR
389 [4.2.1], [4.3.1]
Dunghutti Elders Council (Aboriginal Corporation)
RNTBC v Registrar of Aboriginal and Torres
Strait Islander Corporations (2011) 195 FCR
318 [4.2.2.3]
Dyson v Attorney- General [1911] 1 KB
410 [3.5.1.5]
Eastman v Australian Capital Territory (2008) 2
ACTLR 180; (2008) 227 FLR 279 [2.5.1.2]
Eastman v Besanko (2010) 244 FLR
262 [2.5.1.4.1]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 13
TABLE OF CASES XIII
Easwaralingam v Director of Public Prosecutions
(2010) 208 A Crim R 122 [3.5.1.1]
Ebner v Official Trustee in Bankruptcy (2000) 205
CLR 337 [4.2.3]
Edelsten v Health Insurance Commission (1990)
27 FCR 56 [2.5.1.2]
Edelsten v Wilcox (1988) 83 ALR 99 [4.5]
Edwards (Inspector of Taxes) v Bairstow [1956] AC
14 [4.4.3]
Edwards v Santos Ltd (2011) 242 CLR 421 [5.4]
Egglishaw v Australian Crime Commission (No
2) (2010) 186 FCR 393 [4.2.5.2]
Electricity Supply Association of Australia Ltd
v Australian Competition and Consumer
Commission (2001) 111 FCR 230 [2.5.1.2],
[3.5.1.5]
Electrolux Home Pty Ltd v Australian Workers
Union (2004) 221 CLR 309 [4.6]
Enfield see Corporation of the City of Enfield v
Development Assessment Commission
Entick v Carrington (1765) 19 St Tr 1030; 95 ER
807 [4.6]
Evans [1982] 3 All ER 141 [2.2.2]
Evans and Secretary, Department of Primary
Industry, Re (1985) ALD 627 [7.6.3]
Evans v New South Wales (2008) 168 FCR
576 [4.6]
Ex parte Wilkes; Re Minister for Education [1962]
SR (NSW) 220 [3.5.1.3]
F Hoffmann-La Roche and Co AG v Secretary of
State for Trade and Industry [1975] AC 295 [3.7]
FAI Insurances Ltd v Winneke (1982) 151 CLR
342 [4.2.2.1]
Federal Airports Corporation v Aerolineas
Argentinas (1997) 76 FC R 582 [2.5.1.3]
Federal Commissioner of Taxation v Munro (1926)
38 CLR 153 [7.1]
Federal Commissioner of Taxation v Official
Liquidator of EO Farley Ltd (1940) 63 CLR
278 [2.6.2.2]
Flaherty v Secretary, Department of Health and
Ageing (2010) 184 FCR 564 [3.7.1]
Forbes v New South Wales Trotting Club Ltd
(1979) 143 CLR 242 [2.6.1], [3.5.1.1]
Forge v Australian Securities & Investments
Commission (2006) 228 CLR 45; (2006) 229
ALR 223 [6.1], [7.2.1]
Forrest v Wilson [2017] HCA 30 [4.2.5.2]
Foster v Minister for Customs and Justice (2000)
200 CLR 442 [4.3.1]
Fox v Percy (2003) 214 CLR 118 [2.2.1]
Franklin v Minister of Town and Country Planning
[1948] AC 87 [4.2.3]
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 XIV TABLE OF CASES
Franklin v The Queen (No 2) [1974] QB
208 [3.5.1]
Friends of Elliston— Environment & Conservation
Inc v South Australia (2007) 96 SASR 246 [5.2]
FTZK v Minister for Immigration and Border
Protection [2014] HCA 26; (2014) 310 ALR
1 [4.1.2]
Gay Solidarity Group and Minister for Immigration
and Ethnic Affairs, Re (1983) 5 ALD 289 [7.5.2]
Gay Solidarity Group and Minister for Immigration
and Ethnic Affairs, Re (1983) 5 ALD
289 [7.5.1.2]
Gedeon v NSW Crime Commission (2008) 236
CLR 120 [3.7.2], [4.4.2.1]
General Newspapers Pty Ltd v Telstra Corporation
(1993) 45 FCR 164 [2.5.1.4.1]
Ghaidan v Godin-Mendoza [2004] 2 AC 557 [4.6]
Gill v Minister for Immigration and Border
Protection [2017] FCAFC 51 [3.6]
Gillick v West Norfold and Weisbach Area Health
Authority [1986] AC 112 [3.5.1.5]
Glasson v Parkes Rural Distributions Pty Ltd
(1984) 155 CLR 234 [2.5.1.4.2]
Goldie v Commonwealth [2002] FCA 261 [4.3.1]
Goodson and Secretary, Department of
Employment, Education, Training and Youth
Affairs, Re (1996) 42 ALD 651 [7.6.3]
Graham v Minister for Immigration and Border
Protection [2017] HCA 33 [3.5.3], [6.1], [6.2],
[6.2.2], [6.2.3], [6.2.4.3], [6.2.4.4]
Green v Daniels (1977) 13 ALR 1 [3.5.1.5], [4.3.3],
[4.6], [7.6.3]
Greenham and Minister for Capital Territory, Re
(1979) 2 ALD 137 [7.6.1], [7.6.4.2]
Greyhound Racing Authority (NSW) v Bragg
[2003] NSWCA 388 [2.2.2]
Griffith University v Tang (2005) 221 CLR 89 [1.4],
[2.5.1], [2.5.1.3], [2.5.1.4.1], [2.5.1.4.2], [5.4]
Habib v Commonwealth (2010) 183 FCR
62 [2.6.2.3], [4.2.2.3], [4.3.4]
Habib v Director of Security (2009) 175 FC R
411 [4.2.2.3]
Habib v Minister for Foreign Affairs and Trade
(2010) 192 FC R 148 [4.3.4]
Haoucher v Minister for Immigration and Ethnic
Affairs (1990) 169 CLR 648 [4.2.2.1]
Haritos v Federal Commissioner of Taxation (2015)
233 FCR 315 [4.4.1], [4.4.2.1.2], [4.4.3]
Harris v Director General of Social Security (1985)
7 ALD 277 [7.6.4.2]
Herrington Re Election for offices in
Communications Division of the CEPU (2005)
144 IR 143 [3.5.1.3]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 14
Hicks v Minister for Immigration and Multicultural
and Indigenous Affairs (2005) 146 FCR
427 [3.1.1]
Hicks v Ruddock (2007) 156 FC R 574 [2.6.2.3]
Hindi v Minister for Immigration and Ethnic
Affairs (1988) 20 FCR 1 [4.3.1]
Hope v Bathurst City Council (1980) 144 CLR
1 [4.4.3]
Hot Holding Pty Ltd v Creasy (2002) 210 CLR
438 [3.5.1.1], [4.2.2.3], [4.2.3], [4.3.1]
House v Defence Force Retirement and Death
Benefits Authority (2011) 193 FCR 112 [4.4.1]
Howard and the Treasurer, Re (1985) 7 ALD
645 [9.6.5], [9.6.6], [9.8]
Hu v Migrations Agents Registration Authority
[2010] FCA 674 [2.5.1.4.1]
Huddart Parker & Co Pty Ltd v Moorehead (1909)
8 CLR 330 [1.3], [7.1]
Hughes Aircraft Systems International v Airservices
Australia (1997) 76 FCR 151 [2.7], [4.3.4]
Hussain v Minister for Foreign Affairs (2008) 103
ALD 66 [7.1]
Hutchins v Deputy Commissioner of Taxation
(1996) 65 FC R 269 [2.5.1.4.1]
Ilic v City of Adelaide (2010) 107 SASR 139 [4.4.2.1.1]
In re Judiciary and Navigation Acts (1921) 29 CLR
257 [2.4.1.3]
Independent Commission Against Corruption v
Cunneen (2015) 256 CLR 1 [4.6]
Inglis v Commonwealth Trading Bank of Australia
(1969) 199 CLR 33 [2.4.2]
International Finance Trust Co Ltd v New South
Wales Crime Commission (2009) 240 CLR
319 [7.2.1]
Isbester v Knox City Council (2015) 255 CLR
135 [4.2.3]
Italiano v Carbone [2005] NSWCA 177 [4.2.5.2]
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA
126 [4.3.1], [4.3.3], [4.5]
Jadwan Pty Ltd v Secretary, Department of Health
and Aged Care (2003) 145 FCR 1 [3.2],
[3.5.2], [3.7.1]
James v Military Rehabilitation and Compensation
Commission (2010) 186 FCR 134 [4.5]
Jetopay Pty Ltd and Australian Fisheries
Management Authority, Re (1993) 32 ALD
209 [7.6.3]
JJ Richards & Sons Pty Ltd v Fair Work Australia
(2012) 201 FCR 297 [3.6]
John Fairfax & Sons Ltd v Australian
Telecommunications Commission [1977] 2
NSWLR 400 [3.5.1.3]
John v Rees [1970] 1 Ch 345 [4.2.1]
21/12/2017 11:42 AM

Kable v Director of Public Prosecutions (NSW)
(1996) 189 CLR 51 [4.6], [7.2.1]
Kavvadias v Commonwealth Ombudsman (1984)
54 ALR 285 [9.2]
Kelson v Forward (1995) 60 FC R 39 [2.5.1.2]
Khan v Minister for Immigration and Ethnic Affairs
(1987) 14 ALD 291 [4.3.1]
Khuu & Lee Pty Ltd v Corporation of the City of
Adelaide (2011) SASR 235 [2.5.1.4.1], [2.6.1]
Kindimindi Investments Pty Ltd v Lane Cove
Council (2006) 143 LGERA 277 [4.3.1]
King v Director of Housing (2013) 23 Tas R
353 [2.5.1.4.1]
Kioa v West (1985) 159 CLR 550 [4.1.2], [4.2.2.3],
[4.2], [4.2.2]
Kirk v Industrial Court of New South Wales
(2010) 239 CLR 531 [1.3], [2.1], [2.3.1], [2.4.1],
[2.4.1.1], [2.4.2], [2.4.3], [2.6], [3.4], [3.5.1.1],
[4.4.2.1], [6.1], [6.2], [6.2.2]
Kostas v HIA Insurance Services Pty Limited
(2010) 241 CLR 390 [2.2.1], [4.4.1], [4.4.2.2]
Kowalski v Military Rehabilitation and
Compensation Commission (2010) 114 ALD
8 [7.4]
Ku-ring- gai Council v West [2017] NSWCA
54 [4.3.1]
Kutlu v Director of Professional Services Review
(2011) 197 FCR 177 [3.3], [4.2.5.2]
L & B Linings Pty Ltd v WorkCover Authority of
New South Wales [2012] NSWCA 15 [4.2.4],
[4.4.2.2]
Lam v Minister for Immigration and Multicultural
Affairs (2006) 157 FCR 215 [4.2.2.4]
Lamb v Moss (1983) 49 ALR 533 [2.5.1.2]
Lanham and Secretary, Department of Family
and Community Services, Re (2002) 67 ALD
173 [7.6.3]
Lansen v Minister for Environment and Heritage
(2008) 174 FCR 14 [3.2], [3.3], [3.6], [4.3.1], [4.3.1]
Laws v Australian Broadcasting Tribunal (1990)
170 CLR 70 [4.2.3]
Lee v New South Wales Crime Commission (2013)
251 CLR 196 [4.6]
Leppington Pastoral Co Pty Ltd v Department
of Administrative Services (1990) 20 ALD
607 [7.6.3]
Levy v Victoria (1997) 189 CLR 579 [5.4]
Li (2013) 249 CLR 332 [4.5]
Littlejohn and Department of Social Security, Re
(1989) 17 ALD 482 [7.6.3]
M v Home Office [1994] AC 377 [2.6.2.2]
MacCormick v Federal Commissioner of Taxation
(1984) 158 CLR 622 [6.2.4.1]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 15
TABLE OF CASES XV
Macksville & District Hospital v Mayze (1987) 10
NSWLR 708 [4.2.5.1]
Macoun v Commissioner of Taxation (2015) 257
CLR 519 [4.4.3]
Malincevski and Minister for Immigration, Local
Government and Ethnic Affairs, Re (1991) 24
ALD 331 [7.6.3]
Malone v Metropolitan Police Commissioner
[1979] Ch 344 [2.6.2.2]
Mandalia v Secretary of State for the Home
Department [2015] UKSC 59; [2015] 1 WLR
4546 [4.3.3]
Marine Hull and Liability Insurance Co Ltd v
Hurford (1985) 10 FCR 234 [4.2.2.3]
Marrickville Metro Shopping Centre Pty Ltd
v Marrickville Council (2010) 174 LGERA
67 [4.2.5.2]
May v Military rehabilitation and Compensation
Commission (2015) 233 FCR 397 [4.4.1],
[4.4.3]
Mayor and Aldermen of the City of London v
Richard Henry Cox (1867) LR 2 HL 239 [2.2]
McBain, Re; Ex parte Australian Catholic Bishops
Conference (2001) 209 CLR 372 [2.4.1.1],
[2.4.1.2], [2.4.1.3], [3.1.1], [3.5.1.1], [3.5.3], [5.1],
[5.2], [5.4]
McCloy v New South Wales (2015) 257 CLR
178 [4.6]
McDonald v Director- General of Social Security
(1984) 6 ALD 6 [7.4]
McGovern v Ku-ring- gai Council (2008) 72
NSWLR 504 [4.2.3]
McGowan v Migration Agents Registration
Authority (2003) 129 FCR 118 [2.5.2]
McKinnon v Secretary, Department of Treasury
(2006) 228 CLR 423 [7.6.1]
Mellifont v Attorney- General (Qld) (1991) 173 CLR
289 [2.4.1.3]
Miah see Minister for Immigration and
Multicultural Affairs; Ex parte Miah, Re
Michael v Secretary, Department of Employment,
Science and Training (2006) 42 AAR
488 [3.7.1]
Mickovski v Financial Ombudsman Service Ltd
(2012) 36 VR 456 [2.6.1]
Mika Engineering Holdings Pty Ltd and
Commissioner of Taxation, Re (2006) 92 ALD
688 [7.6.4.1], [7.6.5.1]
Minister for Aboriginal Affairs v Peko-Wallsend
Ltd (1986) 162 CLR 24 [2.5.1], [4.1.2], [4.3.1],
[4.3.5], [4.5], [4.6]
Minister for Arts, Heritage and Environment v
Peko-Wallsend (1987) 15 FCR 274 [2.6.2.3]
Minister for Foreign Affairs v Lee (2014) 227 FCR
279 [4.3.3]
21/12/2017 11:42 AM
 XVI TABLE OF CASES
Minister for Health and Family Services v Jadwan
Pty Ltd (1998) 89 FCR 478 [3.2]
Minister for Health v Nicholl Holdings Pty Ltd
(2015) 231 FCR 539 [2.5.1.2]
Minister for Human Services and Health v Haddad
(1995) 38 ALD 204 [7.6.3]
Minister for Immigration and Border Protection v
AMA16 [2017] FCAFC 136 [4.2.3]
Minister for Immigration and Border Protection v
Eden (2016) 240 FCR 158 [4.5]
Minister for Immigration and Border Protection v
Hossain [2017] FCAFC 82 [3.4], [3.7.1]
Minister for Immigration and Border Protection v
Stretton (2016) 237 FCR 1 [4.5]
Minister for Immigration and Border Protection v
SZSRS (2014) 309 ALR 67 [4.3.1]
Minister for Immigration and Border Protection v
SZSSJ (2016) 334 ALR 653 [4.2.2.3], [4.2.2.4]
Minister for Immigration and Border Protection v
SZVFW [2017] FCAFC 33 [4.5]
Minister for Immigration and Border Protection v
SZVFW [2017] HCA 191 [4.5]
Minister for Immigration and Border Protection v
WZARH (2015) 256 CLR 326 [4.2.2.4], [4.3.3]
Minister for Immigration and Citizenship v Khadgi
(2010) 190 FCR 248 [4.3], [4.3.1]
Minister for Immigration and Citizenship v Kumar
(2009) 238 CLR 448 [4.2.2.3]
Minister for Immigration and Citizenship
v Li (2013) 249 CLR 332 [4.1.1], [4.3],
[4.4.2.1.2], [4.5]
Minister for Immigration and Citizenship v Maman
(2012) 200 FCR 30 [3.7.1], [4.2.2.3]
Minister for Immigration and Citizenship v SZGUR
(2011) 241 CLR 594 [4.2.4]
Minister for Immigration and Citizenship v SZIAI
(2009) 259 ALR 429 [4.2.4]
Minister for Immigration and Citizenship v SZIZO
(2009) 238 CLR 627 [3.5.3], [4.2.5.2], [6.2.2]
Minister for Immigration and Citizenship v SZJSS
(2010) 243 CLR 164 [2.2.2], [4.3.1]
Minister for Immigration and Citizenship v SZLSP
(2010) 187 FCR 362 [4.2.5.2], [4.4.2.2],
[4.4.2.1.2]
Minister for Immigration and Citizenship v SZMDS
(2010) 240 CLR 611 [4.4.2.1.2], [4.4.2.2]
Minister for Immigration and Citizenship v
SZQHH (2012) 200 FCR 223 [4.2.3]
Minister for Immigration and Citizenship v SZRKT
(2013) 212 FCR 99 [4.1.2], [4.3.1], [4.4.2.1]
Minister for Immigration and Ethnic Affairs v
Conyngham (1986) 11 FCR 528 [3.5.3]
Minister for Immigration and Ethnic Affairs v Guo
(1997) 191 CLR 559 [2.2.1]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 16
Minister for Immigration and Ethnic Affairs v
Mayer (1985) 157 CLR 290 [2.5.1.3]
Minister for Immigration and Ethnic Affairs v
Pochi (1980) 4 ALD 139 [7.6.1]
Minister for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR 273 [4.2.2.1], [4.2.2.4], [4.6]
Minister for Immigration and Ethnic Affairs v Wu
Shan Liang (1996) 185 CLR 259 [4.3], [4.3.1],
[4.4.2.1.2]
Minister for Immigration and Multicultural Affairs
v Bhardwaj (2002) 209 CLR 597 [2.4.1.3],
[6.2.2], [8.2.1]
Minister for Immigration and Multicultural Affairs
v Jia Legeng (2001) 205 CLR 507 [1.2.1],
[4.2.1], [4.2.3]
Minister for Immigration and Multicultural Affairs
v Lay Lat (2006) 151 FCR 214 [4.2.2.2]
Minister for Immigration and Multicultural
Affairs v Ozamanian (1996) 71 FCR 1 [2.5.1],
[2.5.1.2]
Minister for Immigration and Multicultural
Affairs v Rajamanikkam (2002) 210 CLR
222 [4.4.2.2], [4.4.3]
Minister for Immigration and Multicultural Affairs
v Yusuf (2001) 206 CLR 323 [3.2], [3.4],
[4.2.5.2], [4.3.1]
Minister for Immigration and Multicultural Affairs,
Re; Ex parte Applicant S20/2002 (2003) 198
ALR 59 [4.2.4], [4.3.1], [4.4.2.1.2], [4.4.2.2]
Minister for Immigration and Multicultural
Affairs, Re; Ex parte Cohen (2001) 177 ALR
473 [2.4.1.2], [4.4.2]
Minister for Immigration and Multicultural Affairs,
Re; Ex parte Durairajasingham (2000) 168
ALR 407 [2.4.1.1]
Minister for Immigration and Multicultural Affairs,
Re; Ex parte Miah (2001) 206 CLR 57 [3.4],
[3.5.3], [3.6], [4.2.2.2], [4.2.2.3]
Minister for Immigration and Multicultural Affairs,
Re; Ex parte S20/2002 (2003) 198 ALR
59 [3.5.3], [4.1.4], [4.2.4], [4.3.1], [4.4.2.1.2]
Minister for Immigration and Multicultural and
Indigenous Affairs v Huynh (2004) 139 FCR
505 [4.3.1]
Minister for Immigration and Multicultural and
Indigenous Affairs v SGLB (2004) 207 ALR
12 [4.4.2.2], [6.2.2]
Minister for Immigration and Multicultural and
Indigenous Affairs; Ex parte Applicants S134,
Re (2003) 211 CLR 441 [3.2]
Minister for Immigration and Multicultural and
Indigenous Affairs; Ex parte Lam, Re (2003)
214 CLR 1 [4.1.4], [4.2.2.1], [4.2.2.4], [4.3.3]
Minister for Immigration and Multicultural and
Indigenous Affairs v SCAR (2003) 128 FCR
553 [4.2.2.3]
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Minister for Immigration and Multicultural and
Indigenous Affairs, Re; Ex parte Applicants
S134 (2003) 211 CLR 441 [3.2]
Minister for Immigration and Multicultural and
Indigenous Affairs, Re; Ex parte Lam (2003)
214 CLR 1 [2.2.2], [4.1.4]. [4.2.2.1], [4.2.2.4],
[4.3.3]
Minister for Immigration and Multicultural and
Indigenous Affairs, Re; Ex parte Palme (2003)
216 CLR 212 [4.2.5.2], [4.3], [6.2.4.1]
Minister for Immigration v SZJSS (2010) 243 CLR
164 [2.2.2], [4.3.1], [4.2.1]
Minister for Immigration, Local Government
and Ethnic Affairs v Gray (1994) 33 ALD
13 [7.6.3]
Minister for Immigration, Local Government
and Ethnic Affairs v Kurtovic (1990) 21 FCR
193 [4.3.3]
Minister for Industry and Commerce v Tooheys
Ltd (1982) 42 ALR 260 [2.5.1.3]
Minister for Local Government v South
Sydney City Council (2002) 55 NSWLR
381 [2.6.2.2]
Minister of Indigenous Affairs v MJD Foundation
Ltd [2017] FCAFC 37 [3.7.1]
Mobil Oil Australia Pty Ltd v Federal
Commissioner of Taxation (1963) 113 CLR
475 [4.2.2.3]
Momcilovic v R (2011) 280 ALR 221 [4.6]
Montreal Street Railway Co v Normandin [1917]
AC 170 [4.2.5.2]
Motor Trades Association of Australia
Superannuation Fund Pty Ltd v Australian
Prudential Regulation Authority (2008) 169
FCR 483 [2.5.1.5]
Muin v Refugee Review Tribunal (2002) 190 ALR
601 [3.2]
Murdaca and Australian Securities and
Investments Commission, Re (2010) 118 ALD
202 [7.6.2], [7.6.3]
Murphyores Inc Pty Ltd v Commonwealth (1976)
136 CLR 1 [4.3.1]
Murray v Native Title Tribunal (2002) 77 ALD
96 [3.2]
MZXSA v Minister for Immigration and
Citizenship (2010) 117 ALD 441 [4.4.2.1.2]
NAIS v Minister for Immigration and Multicultural
and Indigenous Affairs (2005) 228 CLR 470;
(2005) 223 ALR 1 [4.2.2.3], [7.8.1]
National Companies and Securities Commission
v News Corporation Ltd (1984) 156 CLR
296 [4.2.2.3]
NBMZ v Minister for Immigration and Border
Protection (2014) FCR 1 [2.5.1], [4.3], [4.3.1]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 17
TABLE OF CASES XVII
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003)
216 CLR 177 [2.5.1.4.2], [2.6.1], [2.7], [3.5.1.3],
[4.3.3], [7.5.1.2]
Nevistic v Minister for Immigration and Ethnic
Affairs (1981) 34 ALR 639, 647 [7.6.3]
New South Wales v Bardolph (1934) 52 CLR
455 [2.7]
Nona v Barnes [2012] QSC 35 [2.5.1.4.1]
North Australian Aboriginal Justice Agency
Ltd v Northern Territory (2015) 256 CLR
569 [4.3], [4.6]
North Australian Aboriginal Legal Aid Service Inc
v Bradley (2004) 218 CLR 146 [7.2.1]
Northcoast Environmental Council Inc v Minister
for Resources (1994) 55 FCR 492 [5.2]
Northumberland case see R v Northumberland
Compensation Appeal Tribunal; Ex
parte Shaw
O’Halloran v Wood [2004] FCA 544 [3.3]
O’Reilly v Commissioners of State Bank of Victoria
(1983) 153 CLR 1 [4.3.4]
Oakley v South Cambridgeshire District Council
[2017] EWCA Civ 71 [4.2.4]
Ogle v Strickland (1987) 71 ALR 41 [5.2]
Onus v Alcoa of Australia Ltd (1981) 149 CLR
27 [5.2]
Ortiz v Minister for Immigration and Citizenship
(2011) 224 FCR 583 [4.4.2.1.2]
Oshlack v Richmond River Council (1998) 193 CLR
72 [5.4]
Osland v Secretary to the Department of Justice
(2010) 241 CLR 320 [7.6.4.2]
Ousley v The Queen (1997) 192 CLR 69 [3.7.2],
[3.7.3]
OV v Members of the Board of the Wesley Mission
Council (2010) 270 ALR 542 [4.4.1], [4.4.3]
Ozepulse Pty Ltd v Minister for Agriculture
Fisheries and Forestry (2007) 163 FCR
562 [4.2.2.1]
Ozmanian v Minister for Immigration, Local
Government and Ethnic Affairs (1996) 137
ALR 103 [2.5.1.3]
Padfield v Minister of Agriculture, Fisheries and
Food [1968] AC 997 [2.6.2.2], [3.1.1], [4.3.1]
Palme case see Minister for Immigration and
Multicultural and Indigenous Affairs, Re; Ex
parte Palme
Palmer v Liquidators of Queensland Nickel Pty Ltd
(in Liq) [2017] HCA 5 [2.4.1.3]
Palmer v The Chief Executive, Qld Corrective
Services [2010] QCA 316 [2.5.1.4.1]
Pape v Federal Commissioner of Taxation (2009)
238 CLR 1 [2.6.2.2], [5.1]
21/12/2017 11:42 AM
 XVIII TABLE OF CASES
Park Oh Ho v Minister for Immigration and Ethnic
Affairs (1989) 167 CLR 637 [3.1.1], [3.5.3]
Pattenden v Federal Commissioner of Taxation
(2008) 175 FCR 1 [4.3.5]
Perinepod Pty Ltd v Georgiou Building Pty Ltd
[2011] WASCA 217 [2.6.1]
Peverill v Meir (1989) 95 ALR 401 [2.5.1.2]
Plaintiff M61/2010E v Commonwealth of Australia
(2010) 243 CLR 319 [2.4.1.2], [2.4.2],
[2.5.1.4.1], [2.5.1.4.2], [3.5.1.3], [3.5.1.5], [4.2.1],
[4.3.5], [6.2.4.2]
Plaintiff M61/2010E v Commonwealth of Australia
(2011) 272 ALR 14 [2.7]
Plaintiff M64/2015 v Minister for Immigration and
Border Protection (2015) 258 CLR 173 [3.4],
[4.3.3]
Plaintiff M68/2015 v Minister for Immigration
and Border Protection (2016) 257 CLR
42 [2.4.1.2], [2.4.2]
Plaintiff M70/2011 v Minister for Immigration and
Citizenship (2011) 244 CLR 144 [4.4.2.1.2]
Plaintiff M79/2012 v Minister for Immigration
and Citizenship (2013) 252 CLR 336 [4.3.2],
[6.2.4.1]
Plaintiff S10/2011 v Minister for Immigration
and Citizenship (2012) 246 CLR 636 [4.1.3],
[4.3.2], [4.2.2.1], [4.2.2.2]
Plaintiff S156/2013 v Minister for Immigration and
Border Protection (2014) 254 CLR 28 [4.3.1]
Plaintiff S157/2002 v Commonwealth (2003) 211
CLR 476 [2.2.2], [2.4.1], [2.4.1.1], [2.4.2],
[2.5.1.5], [3.5.3], [3.7.1], [3.7.3], [4.2.2.2], [4.6],
[6.1], [6.2.2], [6.2.3], [6.2.4.2], [6.2.4.4], [7.2.1]
Plaintiff S297/2013 v Minister for Immigration
and Border Protection (2015) 255 CLR
231 [3.5.1.3]
Post Office Agents Assn Ltd v Australian Postal
Commission (1988) 84 ALR 563 [2.4.1.2]
Powell v Department of Immigration and
Multicultural Affairs (1998) 53 ALD
228 [7.6.1]
Prasad v Minister for Immigration and Ethnic
Affairs (1985) 6 FCR 155 [4.2.4]
Presmint Pty Ltd and Australian Fisheries
Management Authority, Re (1995) 39 ALD
625 [7.6.3]
Project Blue Sky Inc v Australian Broadcasting
Authority (1996) 68 FCR 455 [2.4.2]
Project Blue Sky Inc v Australian Broadcasting
Authority (1998) 194 CLR 355 [2.4.2], [3.3],
[3.4], [3.5.2], [4.2.5.2], [6.2.2], [6.2.4.1]
Public Service Association (SA) v Federated
Clerks’ Union (1991) 173 CLR 132 [6.1]
Public Service Association of South Australia Inc
v Industrial Relations Commission of South
Australia (2012) 249 CLR 398 [2.4.3], [6.2.4.2]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 18
Public Service Board (NSW) v Osmond (1986) 159
CLR 656 [2.5.1], [4.2.4]
Punton v Ministry of Pensions and National
Insurance (No 2) [1964] 1 All ER 448 [3.5.1.5]
Qantas Airways Ltd and Deputy Commissioner of
Taxation (Western Australia), Re (1979) 2 ALD
291 [7.5.1.2]
QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR
412 [2.5.1.4]
Queensland Medical Laboratory v Blewett (1988)
84 ALR 615 [2.5.1.3]
Queensland v Central Queensland Land Council
Aboriginal Corporation (2002) 125 FCR
89 [2.5.1.3]
R (Abbasi) v Secretary of State for Foreign and
Commonwealth Affairs; Ex parte Abbasi [2003]
UKHRR 76 CA [2.6.2.3]
R (Lord Carlile of Berriew) v Secretary of
State for the Home Department [2015] AC
945 [1.2.2.1]
R (on the application of Daly) v Secretary of
State for the Home Department [2001] 2 AC
532 [4.6]
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113
CLR 177 [4.3.4]
R v Australian Broadcasting Tribunal; Ex parte
2HD Pty Ltd (1979) 144 CLR 45 [4.3.1]
R v Australian Stevedoring Industry Board; Ex
parte Melbourne Stevedoring Co Pty Ltd
(1953) 88 CLR 100, 120. [4.4.2]
R v Barnsley Metropolitan Borough Council; Ex
parte Hook [1976] 1 WLR 1052 [4.5]
R v Bolton (1841) 1 QB66 [133 ER 1054] [3.4]
R v Civil Service Board, ex parte Cunningham
[1991] 4 All ER 310 [4.2.4]
R v Commonwealth Conciliation and Arbitration
Commission; Ex parte Angliss Group (1969)
122 CLR 546 [4.2.3]
R v Commonwealth Court of Conciliation and
Arbitration; Ex parte Ozone Theatres (Aust)
Ltd (1949) 78 CLR 389 [3.5.1.3], [3.6]
R v Connell; Ex parte The Hetton Bellbird Collieries
Ltd (No 2) (1944) 69 CLR 407 [4.4.2.1.2]
R v Criminal Injuries Compensation Board, Ex
parte Lain [1967] 2 QB 864 [2.6], [2.6.1],
[3.5.1.1]
R v Disciplinary Committee of the Jockey
Club; Ex parte Aga Khan [1993] 2 All ER
853 [2.6.1], [4.6]
R v Electricity Commissioners; Ex parte London
Electricity Joint Committee Co (1920) Ltd
[1924] 1 KB 171 [3.5.1.1]
R v Hickman; Ex parte Fox and Clinton (1945) 70
CLR 598 [6.2.1]
21/12/2017 11:42 AM

R v Independent Broad-Based Anti- Corruption
Commissioner (2016) 256 CLR 459 [4.6]
R v Inner London Education Authority; Ex parte
Ali (1990) 2 Admin LR 822 [3.5.1.3]
R v Kirby; Ex parte Boilermakers’ Society of
Australia (1956) 94 CLR 254 [1.3], [7.1],
[7.2.1]
R v Leeds Crown Court; Ex parte Bradford Chief
Constable [1975] QB 314 [3.1.1]
R v Lord President of the Privy Council; Ex parte
Page [1993] AC 682 [3.4]
R v Muirhead and Bracegirdle; Ex parte Attorney-
General [1942] SASR 226 [3.1.1]
R v Murray and Cormie; Ex parte The
Commonwealth (1916) 22 CLR 437 [2.4.1.2]
R v Murray; Ex parte Proctor (1949) 77 CLR
387 [6.2.1]
R v North and East Devon Health Authority; Ex
parte Coughlan [2001] QB 213 [4.2.2.1],
[4.3.3]
R v Northumberland Compensation Appeal
Tribunal; Ex parte Shaw [1952] 1 KB
338 [3.5.1.1]
R v Panel on Takeovers and Mergers; Ex parte
Datafin Plc [1987] QB 815 [2.6.1], [2.7],
[3.5.2]
R v Secretary of State for the Home Department,
Ex parte Doody [1994] 1 AC 531 [4.2.4]
R v Secretary of State for the Home Department;
Ex parte Northumbria Police Authority [1989]
1 QB 26 [2.6.2.2]
R v Secretary of State for the Home Department;
Ex parte Venables [1998] AC 407 [4.3.3]
R v Secretary of State for the Home Department;
Ex parte Simms [200] 2 AC 115 [4.6]
R v Somerset County Council; Ex parte Fewings
[1995] 1 All ER 513 [2.6.2.2]
R v Toohey; Ex parte Northern Land Council
(1981) 151 CLR 170 [2.5.1], [2.6.2.2], [3.5.1.1],
[4.3], [4.3.2]
R v War Pensions Entitlement Appeal Tribunal; Ex
parte Bott (1933) 50 CLR 228 [3.5.1.3]
Rawson Finances Pty Ltd v Deputy Commissioner
of Taxation (2010) 189 FCR 189 [2.5.1.4.1]
Reece v Webber (2011) 192 FC R 254 [4.2.3],
[4.3.1]
Refugee Review Tribunal, Re; Ex parte Aala (2000)
204 CLR 82 [2.4.1.1], [2.4.2], [3.4], [3.5.3],
[3.6], [3.7], [4.2.5.1], [5.3], [5.4]
Rendell v Release on Licence Board (1987) 10
NSWLR 499 [4.3.3]
Reynolds v Tasmanian Heritage Council (2011) 246
FLR 454 [2.5.1.4.1]
Riddell v Secretary, Department of Social Security
(1993) 42 FCR 443 [4.3.4]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 19
TABLE OF CASES XIX
Right to Life Association (NSW) Inc v Secretary,
Department of Human Services and Health
(1995) 56 FCR 50 [5.2]
Roberts v Hopwood [1925] AC 578 [4.3.1]
Roche Products Pty Ltd v National Drugs and
Poisons Schedule Committee (2007) 163 FCR
451 [2.5.1.3]
Rodger v De Gelder [2011] NSWCA 97 [3.5.1.1]
Rudd and Minister for Transport and Regional
Services, Re (2001) 65 ALD 296 [7.5.2]
Ruddock v Taylor (2005) 222 CLR 612 [3.1.1]
Ruddock v Vardarlis (2001) 110 FC R 491 (Tampa
case) [2.6.2.2]
SAAP v Minister for Immigration and Multicultural
and Indigenous Affairs (2005) 228 CLR
294 [3.4], [4.2.5.2]
Saeed v Minister for Immigration and Citizenship
(2010) 241 CLR 252 [4.2.2.1], [4.2.2.2],
[4.2.2.2], [4.6]
Saitta Pty Ltd v Commonwealth (2000) 106 FCR
554 [2.5.2]
Salerno v National Crime Authority (1997) 75 FC R
133 [2.5.1.4]
Samrein Pty Ltd v Metropolitan Water, Sewerage
and Drainage Board (1982) 41 ALR
467 [4.3.2]
Sankey v Whitlam (1978) 142 CLR 1 [9.7.5]
Save our Suburbs (SOS) NSW Incorporated v
Electoral Commissioner of New South Wales
(2002) 55 NSWLR 642 [3.5.1.3]
Saville v Health Care Complaints Commission
[2006] NSWCA 298 [4.4.1]
SCAS v Minister for Immigration and Multicultural
Affairs [2002] FCAFC 397 [4.3.2]
Schielske v Minister for Immigration and Ethnic
Affairs (1988) 84 ALR 719 [4.3.2]
Schwennesen v Minister for Environmental and
Resource Management (2010) 176 LGERA
1 [2.5.1.3]
Screen Australia v Eme Productions No 1 Pty Ltd
(2012) 200 FCR 282 [4.2.2.2], [4.2.5.2], [4.3.1],
[4.4.1], [4.4.3]
Sean Investments Pty Ltd v Mackellar (1981) 38
ALR 363 [4.3.1], [4.3.5]
Secretary, Department of Social Security v Alvaro
(1994) 50 FCR 213 [4.3.5]
Seiffert v The Prisoners Review Board [2011]
WASCA 148 [4.2.2.2], [4.2.5.2], [4.3.1], [4.3.3],
[6.2.3]
Sew Eurodrive Pty Ltd and Collector of Customs,
Re (1994) 35 ALD 790 [7.5.2]
SFGB v Minister for Immigration and Multicultural
and Indigenous Affairs (2003) 77 ALD
402 [4.4.2.2]
21/12/2017 11:42 AM
 XX TABLE OF CASES
Shade Systems Pty Ltd v Probuild Constructions
(Aust) Pty Ltd (No 2) [2016] NSWCA
379 [2.4.3], [2.6]
Sharpe and Department of Social Security, Re
(1988) 14 ALD 681 [7.6.3]
Shell v Federal Commissioner of Taxation (1930)
44 CLR 530 [7.1]
Sherlock v Lloyd (2010) 27 VR 434 [4.2.4],
[4.2.5.2]
Shi v Migration Agents Registration Authority
(2008) 235 CLR 286 [7.6.4.2]
Shop Distributive and Allied Employees
Association v Minister for Industrial Affairs
(SA) (1995) 183 CLR 552 [5.2]
Shrestha v Minister for Immigration and Border
Protection [2017] FCAFC 69 [3.6]
Simpson Design Associates Pty Ltd v Industrial
Court of New South Wales [2011] NSWCA
316 [6.2.4.1]
Singh v Minister for Immigration and Border
Protection (2014) 231 FCR 437 [4.5]
Smith v East Elloe Rural District Council [1956] AC
736 [3.7]
Smoker v Pharmacy Restructuring Authority
(1994) 53 FCR 287 [4.3.4]
Solution 6 Holdings Ltd v Industrial Relations
Commission of NSW (2004) 60 NSWLR
558 [3.3]
South Australia v O’Shea (1987) 163 CLR
378 [2.6.2.3], [4.2.2.3]
South Australia v Totani (2010) 242 CLR
1 [6.2.4.4]
SRRRRR v Commissioner of Taxation, Re (2008)
100 ALD 690 [7.6.1]
State of NSW v Kable (2013) 252 CLR 118 [3.7]
State Super SAS Trustee Corporation v Cornes
[2013] NSWCA 257 [4.4.3]
Stead v State Government Insurance Commission
(1986) 161 CLR 141 [4.2.5.1]
Stewart v Ronalds (2009) 76 NSWLR 99 [2.6.1],
[2.6.2.3]
Stoljarev v Australian Fisheries Management
Authority (1995) 39 ALD 517 [7.6.3]
Stringer v Minister of Housing and Local
Government [1979] 1 WLR 1281 [2.7]
Sullivan v Department of Transport (1978) 1 ALD
383 [7.6.3]
Sunchen v Pty Ltd v Commissioner of Taxation
(2010) 264 ALR 447 [4.4.2.2]
Sunshine Coast Broadcasters Ltd v Duncan (1988)
83 ALR 121 [4.3.3]
SZAYW v Minister for Immigration and
Multicultural and Indigenous Affairs (2006)
229 ALR 423 [8.3.5]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 20
SZBEL v Minister for Immigration and
Multicultural and Indigenous Affairs (2006)
228 CLR 152 [4.2.2.3]
SZBYR v Minister for Immigration and Citizenship
(2007) 235 ALR 609 [3.6], [4.2.5.1]
SZEEU v Minister for Immigration and
Multicultural and Indigenous Affairs (2006)
150 FC R 214 [4.2.2.2]
SZFDE v Minister for Immigration and
Citizenship (2007) 232 CLR 189 [4.2.2.3],
[4.3.2]
SZGME v Minister for Immigration and Citizenship
(2008) 168 FCR 487 [3.6]
SZKUO v Minister for Immigration and Citizenship
(2009) 180 FCR 438 [3.7], [3.7.1]
SZMDS case see Minister for Immigration and
Citizenship v SZMDS
SZMWQ v Minister for Immigration and
Citizenship (2010) 187 FCR 109 [4.4.2.2]
SZOOR v Minister for Immigration and
Citizenship (2012) 202 FCR 1, [2012] FCAFC
58 [4.4.2.1.2]
SZQJH v Minister for Immigration and Citizenship
(2012) 126 ALD 488 [4.2.1]
SZUWX v Minister for Immigration and Border
Protection [2015] FCA 1389 [3.4]
SZVFW [2017] FCAFC 33 [4.5]
Tampa case see Ruddock v Vardarlis
Tang case see Griffith University v Tang
Tasmanian Conservation Trust Inc v Minister for
Resources (1995) 55 FCR 516 [5.2]
Telstra Corp Ltd v Kendall (1995) 55 FCR
221 [4.3.4]
The Pilbara Infrastructure Pty Ltd v Economic
Regulation Authority [2014] WASC 346 [4.5]
Thompson v Ludwig (1991) 37 IR 437 [4.2.5.1]
Tickner v Chapman (1995) 57 FCR 451 [4.3.1],
[4.3.5]
Timbarra Protection Coalition Inc v Ross Mining
NL (1999) 46 NSWLR 55 [4.4.2.1.1]
Torbey Investments Corporated Pty Ltd v Ferrara
[2017] NSWCA 9 [4.3.1]
Town Investments v Department of Environment
[1978] AC 359 [2.6.2.2]
Trust Company of Australia Ltd v Skiwing Pty Ltd
(2006) 66 NSWLR 185 [7.2.1]
Truth About Motorways v Macquarie (2000) 200
CLR 591 [2.4.1.3], [5.1], [5.4]
Tuite v Administrative Appeals Tribunal (1993) 40
FCR 483 [4.4.1]
United States Tobacco Co v Minister for Consumer
Affairs (1988) 20 FCR 520 [5.4]
21/12/2017 11:42 AM

VAAD v Minister for Immigration and Multicultural
and Indigenous Affairs [2005] FCAFC 117 [4.3.1]
Vakauta v Kelly (1989) 167 CLR 568 [4.2.3],
[4.2.5.1]
Vanstone v Clark (2005) 47 FC R 299 [4.5]
Vetter v Lake Macquarie City Council (2001) 202
CLR 439 [4.4.3]
Victoria v Master Builders’ Association of Victoria
[1995] 2 VR 121 [2.6.2.2]
Victorian Stevedoring and General Contracting Co
Ltd v Dignan (1941) 46 CLR 73 [8.4.1]
Vietnam Veterans’ Affairs Association of
Australian (NSW Branch Inc) v Cohen (1996)
70 FCR 419 [2.4.1.2]
Visa International Service Association v Reserve
Bank of Australia (2003) 131 FCR 300 [4.2.4]
Vitaz v Westfarm (NSW) Pty Ltd [2011] NSWCA
254 [3.6], [4.2.5.1]
Walker v New South Wales Bar Association [2016]
FCA 799 [3.5.1.5]
Ward and Department of Industry and Commerce,
Re (1983) 8 ALD 324 [7.7]
Water Conservation and Irrigation Commission
(NSW) v Browning (1947) 74 CLR 492 [4.3.1]
Waterford v Commonwealth (1987) 163 CLR
54 [2.5.1], [4.4.1], [4.4.2]
Watson v Australian Community Pharmacy
Authority (2011) 284 ALR 293 [4.4.2.2]
Wattmaster Alco Pty Ltd v Button (1986) 13 FCR
253 [3.3], [3.5.2]
00_CAN_PAL3_05246_TXT_4pp_SI.indd 21
TABLE OF CASES XXI
Webb v R (1994) 181 CLR 41 [4.2.3]
Wei v Minister for Immigration and Border
Protection (2015) 257 CLR 22 [3.3], [6.2.2]
West Lakes Ltd v State of South Australia (1980)
25 SASR 389 [2.7]
Wetzel v District Court of New South Wales (1998)
43 NSWLR 687 [4.3.3]
Whisprun Pty Ltd v Dixon (2003) 200 ALR
447 [4.5]
White Industries Australia Ltd v Federal
Commissioner of Taxation (2007) 160 FCR
298 [2.5.1.4.1], [2.5.2]
Williams v Commonwealth [No 1] (2012) 248 CLR
156 [2.6.2.2]
Wingfoot Australia Partners Pty Ltd v Kocak
(2013) 252 CLR 480 [4.2.5.2]
Witheford and Department of Foreign Affairs, Re
(1983) 5 ALD 534 [7.6.3]
Woods and Secretary, Department of Education,
Science and Training, Re (2007) 94 ALD
265 [7.5.1.2]
Woolworths v Pallas Newco Pty Ltd (2004) 61
NSWLR 707 [6.2.4.3]
X7 v Australian Crime Commission (2013) 248 CLR
92 [4.6]
Yamirr v Australian Telecommunications
Corporation (1990) 96 ALR 739 [3.5.1.3]
YL v Birmingham City Council [2008] 1 AC
95 [2.6.1]
21/12/2017 11:42 AM
 TABLE OF STATUTES

COMMONWEALTH Acts Interpretation Act s 3(2) [2.5.1]

Australian Constitution 1901 1
s 51 [7.2.2]
s 61 [2.6.2.2], [2.6.2.3],
[3.5.3]
s 71 [7.2.1], [7.2.2]
s 72 [7.2.1]
s 73 [2.3.1], [2.4.3]
s 73(ii) [2.4.3], [6.1], [7.3]
s 75 [2.1], [5.1]
s 75(i) [2.4.2]
s 75(iii) [2.3.1]; [2.4.1.2],
[2.4.2], [2.5.2], [3.3],
[3.5.3]
s 75(v) [1.3], [1.4], [2.2.2],
[2.3.1], [2.4.1], [2.4.1.1],
[2.4.1.2], [2.4.1.3], [2.4.2],
[2.4.3], [2.5.1.2], [2.5.1.5],
[2.5.2], [2.6], [2.7], [3.3],
[3.5.3], [4.1.1], [4.2], [5.1],
[6.1], [6.2], [6.2.1], [6.2.2],
[6.2.3], [6.2.4.1], [6.2.4.2],
[6.2.4.3], [6.2.4.4], [6.3],
[6.4], [7.2.1], [7.2.2], [7.3],
[7.5.1.1], [7.5.1.2], [8.4.3],
[10.1.3.1]
s 77(iii) [2.5.3], [7.3]
Chapter I [2.4.1.2], [7.2.1]
Chapter II [2.4.1.2], [7.2.1]
Chapter III [1.3], [1.4],
[2.4.1.2], [2.4.1.3],
[2.5.1.4.1], [4.6], [7.1],
[7.2.1], [7.2.2], [7.7],
[8.3.4]
1901 [1.2.2.2], [4.1.1] s 3(3) [2.5.1.2], [7.5.1.1]
s 33 [3.7.1] s 3(5) [2.5.1]
s 34A [4.3.5] s 5 [2.5.1] [3.2], [3.3], [7.5.1.1]
s 34AA [4.3.5] s 5(1)(b) [3.2], [4.1.1],
s 34AB [4.3.5] [4.1.2], [4.2.5.2]
Administrative Appeals Tribunal s 5(1)(c) [3.4], [4.3.5]
Act 1975 (‘AAT Act’) [1.3], s 5(1)(d) [3.4], [4.3.5], [4.5]
[2.5.1], [4.2.5.2], [7.5.1.1] s 5(1)(f) [2.5.1], [3.2],
s 2A(b) [8.2.4] [3.5.2], [4.4.1]
s 2A(b)– (d) [7.4] s 5(1)(h) [4.1.2], [4.4.1],
s 7 [7.1] [4.4.2.2]
s 25(1)(a) [7.5.1] s 5(2)(a) [4.3.1]
s 25(5) [7.5.1.1] s 5(2)(b) [4.3.1]
s 27 [7.5.2] s 5(2)(c) [4.3.2]
s 29(2) [7.4] s 5(2)(d) [4.3.2]
s 28 [4.2.4], [7.8.1] s 5(2)(e) [4.3.4]
s 33 [7.4] s 5(2)(f) [4.3.3]
s 34 [7.4] s 5(2)(g) [4.5]
s 39 [7.4] s 5(3) [2.5.1], [4.1.2],
[4.4.2.2]
s 42D [7.6.1]
s 43 [7.6.1] s 5(3)(a) [4.4.2.2]
s 43 [7.6.1], [7.6.4.1] s 5(3)(b) [4.4.2.2]
s 44 [3.5.1.1], [4.4.1], , [7.3], s 6 [2.5.1], [3.2], [3.3],
[7.6.4.2] [7.5.1.1]
s 44(7) [7.6.4.2] s 6(1)(c) [4.3.5]
s 51(a), (b) [7.5.1.2] s 6(1)(d) [4.3.5]
s 59 [7.2.1] s 6(1)(f) [4.4.1]
Pt V [7.1] s 6(2)(a) [4.3.1]
Administrative Decisions s 6(2)(b) [4.3.1]
(Judicial Review) Act 1977 s 6(2)(c) [4.3.2]
(‘ADJR Act’)2 s 6(2)(d) [4.3.2]
s 3(1) [2.5.1], [2.5.1.3] s 6(2)(e) [4.3.4]

1 General references to the Constitution are too numerous to usefully list. Please see specific sections, or
consult index for topics.
2 General references to the ADJR Act are too numerous to usefully list. Please see specific sections, or consult
index for topics.

00_CAN_PAL3_05246_TXT_4pp_SI.indd 22 21/12/2017 11:42 AM

 TABLE OF STATUTES XXIII

s 6(2)(g) [4.5] s 3(2)(a) [9.1] s 7 [8.4.3]

s 7 [2.5.1] s 24AA(1)(a)(i) [9.6.4] s 8(2) [8.4.3]
s 13 [2.5.1], [4.2.4] s 33 [9.7.2] s 8(3) [8.4.3]
s 16 [2.5.1.2], [3.2], [3.3] s 37 [9.7.2], [9.8] s 8(4) [8.4.3]
s 16(1) [3.5.2] s 38 [9.2], [9.7.2], [9.7.4] s 8(6)– (8) [8.4.3]
s 16(1)(a) [3.3], [3.5.2] s 47C [9.2], [9.8] s 10 [8.4.3]
s 16(1)(b) [3.5.2] s 47F [9.7.1] s 15K [8.4.3]
s 16(1)(c) [3.5.2] s 47F(3) [9.7.1] s 17 [8.4.3]
s 16(1)(d) [3.5.2] s 58(5) [7.6.1] s 49 [8.4.3]
Schedule 1 [2.5.1] s 89K [9.6.3] s 44 [8.4.3]
Schedule 2 [4.2.4] s 93A(2) [9.4] s 57A [8.4.3]
Schedule 3 [2.5.1] Part II [9.4] Legislative Instruments Act
Archives Act 1983 [9.7.3] Freedom of Information 2003 [8.4.3]
Auditor- General Act Amendment (Reform) Act Migration Act 1958 [2.4.1.1],
1997 [8.4.5] 1982 [9.3] [2.4.1.2], [2.5.1.5], [3.7.1],
s 8 [8.4.5] Freedom of Information [4.1.2], [4.2.2.2], [4.2.3],
(Removal of Conclusive [4.4.2.1.2], [4.4.3], [4.5], [6.2.2],
s 50 [8.4.5]
Certificates and Other [6.2.4.2], [6.2.4.3], [6.3]
Australian Information
Measures) Act 2009 ss 51A(1) [4.2.2.2]
Commissioner Act
[9.6.1] s 189 [3.1.1]
2010 [9.3], [9.4]
Freedom of Information s 357A(1) [4.2.2.2]
s 7 [9.6.2], [9.4]
Amendment (Reform) Act s 422B [4.2.2.2]
Corporations Act 2001
2010 [9.3]
[2.5.1.4.1] s 422B(1) [4.2.2.2]
Health Insurance Amendment
Crimes Act 1914 s 434A [4.2.2.2]
(Professional Services Review)
s 424 [2.5.1.4.1] s 474 [3.7.3]
Act 2012 (Cth) [4.2.5.2]
Environment Protection and s 476 [2.5.1.5]; [2.5.2]
Human Rights (Parliamentary
Biodiversity Conservation Scrutiny) Act 2011 [4.6], s 501 [3.1.1]
Act 1999 [5.2], [5.4] [8.4.3] s 503A(1) [6.2.4.4]
Family Law Act 1975 [4.3.1] Income Tax Assessment Ombudsman Act 1976 [1.3],
Federal Court Act 1976 [1.3] Act 1936 [8.3.1]
Freedom of Information Act s 175 [6.2.4.1] s 3BA [2.7], [8.3.4]
1982 (‘FOI Act’) [1.3], [8.3.5], s 175A [6.2.4.1] s 3(4B) [2.7]
[9.1], [9.2], [9.3], [9.4], [9.5], s 5(3A) [8.3.4]
177(1) [6.2.4.1]
[9.6], [9.7]
Judiciary Act 1903 [2.1], [2.3], s 6(1)(a) [8.3.3]
s 3 [9.6.1], [9.8]
[2.4.1], [2.5.1], [2.5.2], [2.5.3] s 6(1)(b)(ii) [8.3.3]
s 3(1)(b) [9.4]
s 39 [7.3] s 6(1)(b)(iii) [8.3.3]
s 3(3) [9.4]
s 39(1A)(c) [2.3]; [2.3.1]; s 6(2) [8.3.3]
s 3(4) [9.4] [2.4.1], [2.4.1.2], [2.4.2], s 6(3) [8.3.3]
s 4(1) [9.6] [2.5.1], [2.5.1.2], [2.5.2], s 6(12) [8.3.4]
s 6C [9.6.5] [2.5.3], [2.6.1]
s 8(2) [8.3.5]
s 8 [4.3.3] s 39B [1.3], [2.1], [2.4.1],
s 8(4) [8.3.5]
s 8A [9.4], [9.5] [2.4.1.1], [2.5.1], [3.5.3],
s 8(5) [8.3.5]
s 9 [4.3.3] [5.2], [7.5.1.2], [8.4.3]
s 15(1) [8.3.6]
s 10 [4.3.3], [9.4] s 39B(1) [2.3]; [2.3.1],
[2.4.1], [2.4.1.1], [2.4.1.2], s 15(1)(a)(iii) [8.3.4], [8.3.6],
s 11 [9.6.3] [8.4.3]
[2.4.3], [2.5.1], [2.5.1.2],
s 11(1)(b) [9.6. 5] s 15(1)(a)(v) [8.3.6]
[2.5.1.5], [2.5.2], [2.5.3],
s 11(2) [9.6.3] [6.2.4.1] s 15(2) [8.3.8.1]
s 11(3) [9.8] s 39B(1A)(c) [2.5.2] s 15(2)(d) [8.3.4], [8.3.6],
s 11B(4)) [9.8] s 44(2A) [2.4.1.1] [8.4.3]
s 15 [9.6.3] Legislation Act 2003 s 35 [8.3.5]
s 24AA(1)(a)(ii)) [9.6.5] (‘LA’) [2.5.1.3], [8.4.3] s 35A [8.3.5]

00_CAN_PAL3_05246_TXT_4pp_SI.indd 23 21/12/2017 11:42 AM

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 Thus, even at Medîna, sedition spread,
and from thence messages reached the Aly expostulates with
provinces that the sword would soon be Othmân.
needed there at home, rather than in foreign parts. So general was
the contagion that but few are named as having escaped it.[469]
Moved by the leading citizens, Aly repaired to Othmân and said:
—‘The people bid me expostulate with thee. Yet what can I say to
thee—son-in-law as thou wast of the Prophet and his bosom friend—
that thou already knowest not as well as I? The way lieth plain and
wide before thee; but thine eyes are blinded that thou canst not see
it. If blood be once shed, it will not cease to flow until the Day of
Judgment. Right will be blotted out, and treason rage like the
foaming waves of the sea.’ Othmân complained, and not without
reason, of the unfriendly attitude assumed by Aly himself. ‘For my
own part,’ he said, ‘I have done my best; and as for the men ye
speak of, did not Omar himself appoint Moghîra to Kûfa; and if Ibn
Aámir be my kinsman, is he any the worse for that?’ ‘No,’ replied Aly;
‘but Omar kept his lieutenants in order, and when they did wrong he
punished them; whereas thou treatest them softly, because they are
thy kinsmen.’[470] ‘And Muâvia, too,’ continued the Caliph; ‘it was
Omar who appointed him to Syria.’ ‘Yes,’ answered Aly; ‘but I swear
that even Omar’s slaves did not stand so much in awe of their
master, as did Muâvia. But now he doth whatever he pleaseth, and
saith It is Othmân. And thou, knowing it all, leavest him alone!’ So
saying, Aly turned and went his way.
As Aly’s message professed to come
from the people, Othmân went straightway Othmân appeals to the
to the pulpit and addressed the multitude people.
then assembled for prayer in the Great Mosque. He reproached
them for giving vent to their tongues and following evil leaders,
whose object it was to blacken his name, exaggerate his faults, and
hide his virtues. ‘Ye blame me,’ he said, ‘for things which ye bore
cheerfully from Omar. He trampled on you, beat you about with his
whip, and abused you. And yet ye took it all patiently from him, both
in what ye liked and what ye disliked. I have been gentle with you;
bended my back unto you; withheld my tongue from reviling, and my
hand from smiting. And now ye rise up against me!’ Then, after
dwelling on the prosperity of his reign at home and abroad, and the
many benefits that had accrued to them therefrom, he ended thus:
—‘Wherefore, refrain, I beseech you, from your abuse of me and of
my governors, lest ye kindle the flames of sedition and revolt
throughout the empire.’ The appeal (we are told) was marred by his
cousin Merwân, who at its close exclaimed, ‘If ye will oppose the
Caliph, we shall soon bring it to the issue of the sword.’ ‘Be silent!’
cried Othmân, ‘and leave me with my fellows alone. Did I not tell
thee not to speak?’ So Merwân remained silent, and Othmân
descended from the pulpit. The harangue had no effect for good.
The discontent spread, and the gatherings against the Caliph
multiplied.[471]
Thus ended the eleventh year of
Othmân’s reign. Near the close of it was Close of Othmân’s eleventh
year.
held a memorable council, of which we
shall read in the following chapter. The Caliph performed the
pilgrimage as usual. He had done so every year. But this was to be
his last.
 CHAPTER XXXIII.
THE OUTLOOK DARKENS.

A.H. XXXIV.—XXXV. A.D. 655.

The unhappy Caliph was now being

hurried on, by the rapid course of events, Contumelious treatment of
helplessly to his sad end. Abd al Rahmân, Othmân.
who, no doubt, felt a large measure of responsibility from the share
he took in the nomination of Othmân, was about this time removed
by death. But even he was dissatisfied; and one of the first open
denunciations of Othmân’s unscrupulous disregard of law—small it
might be, but significant—is attributed to him. A fine camel, having
come in with the tithes of a Bedouin tribe, was presented by the
Caliph, as a rarity, to one of his kinsfolk. Abd al Rahmân,
scandalised at the misappropriation of religious property devoted to
the poor, laid hands upon the animal, slaughtered it, and divided the
flesh among the people. The personal reverence attaching
heretofore to the ‘Successor of the Prophet of the Lord,’ gave place
to slight and disregard. Even in the streets, Othmân was greeted
with cries, demanding that he should depose Ibn Aámir and the
godless Abu Sarh, and put away from him Merwân, his chief adviser
and confidant. Nor had he any countenance or support whatever
from the people excepting his immediate kinsmen, and reliance upon
them only aggravated the clamour of the discontented.[472]
The conspirators canvassed in the
dark. They had been hitherto burrowing Othmân sends forth
carefully under ground. But now their messengers to inquire into
the feeling in the provinces.
machinations every here and there were
coming to the light, and rumours of treason began to float abroad.
The better affected classes in the great cities felt uneasy; alarm crept
over all hearts. Letters were continually received at Medîna, asking
what these ominous sounds of warning meant, and what catastrophe
was at hand. The chief men of Medîna kept coming to the Caliph’s
court for tidings; but, notwithstanding the sullen mutterings of nearing
tempest, the surface yet was still. At last, by their advice, Othmân
despatched four trusty persons one to each of the great centres,
Damascus, Kûfa, Bussorah, and Fostât, with a commission to watch
and report whether any suspicious symptoms were transpiring
anywhere.[473] Three returned saying that they discovered nothing
unusual in the aspect of affairs. The fourth, Ammâr, was looked for in
vain; he had, in fact, been tampered with and gained over by the
Egyptian faction. Thereupon Othmân despatched a royal edict to all
the provinces as follows:—At the coming pilgrimage the various
governors would, according to custom, present themselves at court;
whoever, then, had cause of complaint against them, or any other
ground of dissatisfaction, should come forward on that occasion and
substantiate the same, when wrong would be redressed; or else it
behoved them to withdraw the baseless calumnies which were
troubling men’s minds. Proclamation was made accordingly. The
plaintive appeal was understood; and the people in many places
when they heard it wept, and invoked mercy on their Caliph.
The governors repaired to Medîna at
the time appointed, but no malcontent Conference of Governors at
came forward to make complaint. Medîna. 655.
a.h. XXXIV. a.d.

Questioned by Othmân, his lieutenants

knew not of any grievance, real and substantial. To the outward eye,
everything was calm; and even the royal messengers sent to make
inquisition had returned without laying hand on anything amiss. But
all knew of the cancerous sore in the body politic, and of its
spreading rapidly. The wretched Caliph invoked their pity and their
counsel. But they could offer nothing of which he might lay hold. One
advised that the conspirators should be arrested and the ringleaders
put to death; another that the stipends should be forfeited of all
disloyal men; a third that the unquiet spirits amongst the people
should be diverted by some fresh campaign; others that the
governors should amend their ways. Othmân was bewildered; one
thing only he declared, that to measures of severity he never would
assent; the single remedy he could approve was the sending of fresh
expeditions to foreign parts.[474]
 Nothing was settled to avert the crisis,
and the governors departed as they came. Othmân declines help from
When Muâvia made ready to leave, he Muâvia.
once more warned Othmân of his danger, and entreated that he
would retire with him to Syria, where a loyal people were ready to
rally round him. But the Caliph answered: ‘Even to save my life I will
not quit the land wherein the Prophet sojourned, nor the city wherein
his sacred person resteth.’ ‘Then let me send an army to stand by
thee.’ ‘Nay, that I will not,’ responded Othmân firmly; ‘I never will put
force on those who dwell around the Prophet’s home, by quartering
bands of armed men upon them.’ ‘In that case,’ replied Muâvia, ‘I
see nought but destruction awaiting thee.’ ‘Then the Lord be my
defence,’ exclaimed the aged Caliph, ‘and that sufficeth for me.’[475]
‘Fare thee well!’ said Muâvia, and he departed, to see his face no
more.
As he took the road to Syria, Muâvia
passed by a group of the Coreish, amongst Muâvia retires, warning the
whom were Aly and Zobeir. He stayed for a Coreish.
moment to drop a warning word into their ears. They were drifting
back, he said, into the anarchy of ‘the days of Ignorance’ before
Islam. The Lord was a strong Avenger of the weak and injured ones.
‘To you’—and these were his last words—‘to you I commit this
helpless aged man. Help him, and it will be the better for you. Fare
ye well.’ And so saying he passed on his way. The company
remained some time in silence. At last Aly spoke: ‘It will be best done
as he hath said.’ ‘By the Lord!’ added Zobeir, ‘there never lay a
burden heavier on thy breast, nor yet on ours, than this burden of
Othmân’s to-day.’
 CHAPTER XXXIV.
THE PLOT RIPENS. CONSPIRATORS ATTACK MEDINA. DEATH
OF OTHMAN.

A.H. XXXV. A.D. 656.

The plot was now rapidly coming to a

head, and a plan of action had been Plot to surprise Medîna. End
already fixed. While the lieutenants of the of a.h. XXXIV. Summer of
a.d. 655.
Caliph were absent from their posts on the
occasion just described, the conspirators were to issue from Kûfa,
Bussorah, and Fostât, so as to converge upon Medîna in combined
and menacing force. There, in answer to the Caliph’s challenge, they
would present an endless roll of complaints, and cry loudly for
redress, reform, and the removal of their governors. If the request
were denied, they would demand the abdication of Othmân, and, in
the last resort, enforce their demand at the point of the sword. But as
to a successor they were not agreed. Kûfa was for Zobeir; Bussorah
was for Talha; Egypt’s favourite was Aly.
The scheme, being immature, at first
miscarried. But months later, in the middle The conspirators set out for
Medîna. Shawwâl, XXXV.
of the following year, it was revived and April, a.d. 656.
preparations made in secret for giving it
effect. Under the pretext of visiting Mecca, and there performing the
Lesser Pilgrimage, the concerted movement at last took place, two
or three months before the annual pilgrimage.[476] Abu Sarh, the
Governor of Egypt, on learning of the treasonable design, at once
despatched a messenger to apprise Othmân. In reply he was
ordered to pursue the rebels; he did so, but it was too late; they had
marched beyond his reach. On turning back, he found Egypt in the
hands of the traitor, son of Abu Hodzeifa,[477] and fleeing for his life,
took refuge across the border, in Palestine. Amongst the insurgent
leaders of Egypt was Mohammed, son of Abu Bekr.
 On receiving the intelligence that the
insurgents were marching on Medîna, The insurgents encamp near
Othmân ascended the pulpit of the Great Medîna; but retire.
Mosque and made known to the citizens the real object of attack. ‘It
is against myself,’ he said; ‘soon they will look back with a longing
eye to this my Caliphate, and wish that each day of the same had
been a year in length, because of the tumult and bloodshed, anarchy
and ungodliness, that will flood the land.’ The rebels were not long in
making their appearance, and they pitched three camps, the men of
Kûfa, Bussorah, and Egypt, each encamping separately, in the
neighbourhood of Medîna.[478] The citizens put on their armour, a
thing unheard of since the days of the Apostasy in the reign of Abu
Bekr, and prepared for resistance. The insurgents, foiled thus far,
sent deputies to the widows of Mahomet, and the chief men of the
city. ‘We come,’ they said, ‘to visit the Prophet’s home and resting-
place, and to ask that certain of the governors be deposed. Give us
leave to enter.’ But leave was not granted. Then the insurgent bands
despatched each a deputation to its respective candidate. Aly
stormed at the messengers sent to him as soon as they appeared,
and called them rebels accursed of the Prophet; and the others met
with no better reception at the hands of Talha and Zobeir. Unable to
gain over the citizens, without whose consent their object was out of
reach, the rebel leaders declared themselves satisfied with a
promise from the Caliph of reform, and, breaking up their camp,
retired in the order in which they came. They made as if each
company was taking its way home again, but really with the
concerted plan of returning shortly, when they expected to find the
city less prepared to resist.[479] The citizens cast aside their armour,
rejoicing in the apparent deliverance from a pressing danger; and for
some days things went on as before, Othmân leading the prayers.
Suddenly, the three bands reappeared at the city gates. A party
headed by Aly went forth to ask the reason. The strangers pointed to
a document attested by the Caliph’s seal;
this, they said, had been taken from a They return with document
servant of Othmân’s whom they caught bearing the Caliph’s seal.
hastening on the road to Egypt; and it contained orders that the
insurgents were to be seized and imprisoned, some tortured, and
some put to death. Aly, suspecting collusion, asked how the
discovery made by the Egyptian company on the road to Fostât had
become so promptly known to the others marching in quite a
different direction, to Kûfa and Bussorah, as to bring them all back
together? ‘Speak of it as ye will,’ they said, ‘here is the writing, and
here the Caliph’s seal.’ Aly repaired to Othmân, who denied all
knowledge of the document; but, with the view of clearing up the
matter, consented to receive a deputation of the rebel leaders.
Introduced by Aly, they made no obeisance to the Caliph, but with
defiant attitude approached and recounted their grievances. They
had retired with the promise of redress;
but, instead of redress, here was the Angry altercation with the
Caliph’s own servant whom they had Caliph.
caught posting onward to Egypt with the treacherous document now
produced. Othmân swore solemnly that he knew nothing of it. ‘Then
say who it was that wrote this order.’ ‘I know not,’ said the aged
Caliph. ‘But it was passed off as thine; thy servant carried it; see,
here is thy seal, and yet thou wast not privy to it!’ Again Othmân
affirmed that it was even so.[480] ‘Either thou speakest truth,’ they
cried in accents loud and rude, ‘or thou art a liar. Either way, thou art
unworthy of the Caliphate. We dare not leave the sceptre in the
hands of one who is either a knave or a fool too weak to govern
others. Resign, for the Lord hath deposed thee!’ Othmân made
answer:—‘The garment wherewith the Lord hath girded me I will in
no wise put off; but any evil ye complain of, that I am ready to put
away from me.’ It was all too late, they cried; he had often made, and
as often broken, the promise to amend; they could no longer put any
trust in him; now they would fight until he abdicated, or else was
slain. ‘Death,’ said Othmân, gathering himself up, with the firmness
and dignity which marked his last days—‘Death I prefer; as for
fighting, I have said it already, my people shall not fight; had that
been my desire, I had summoned legions to my side.’ The altercation
becoming loud and violent, Aly arose and departed to his home. The
conspirators also retired to their fellows; but they had now secured
what they wanted, a footing in the city. They joined in the ranks of
worshippers at the daily prayers in the Great Mosque, cast dust in
the face of Othmân as he officiated, and threatened the citizens to
make them keep away. The fatal crisis was hurrying on.
On the Friday following this scene,
when the prayers were done, Othmân Tumult in the Mosque;
ascended the pulpit. He first appealed to Othmân struck down.
the better sense of the citizens, who (he knew), however cowed by
the threats of the rebels, condemned their lawless attitude. Then
turning to the conspirators themselves, who had been taking part in
the service, he continued, ‘Ye are aware that the men of Medîna hold
you to be accursed at the mouth of the Prophet, for that ye have
risen up against his Caliph and Vicegerent. Wherefore wipe out now
your evil deeds by repentance, and by good deeds atone for the
same.’ One and another of the loyal citizens arose earnestly to
confirm the Caliph’s words and plead his cause; but they were
silenced and violently set down.[481] A tumult arose. The men of
Medîna were driven from the Mosque and its court, by showers of
stones. One of these struck Othmân, who fell from the pulpit to the
ground, and was carried to his house adjoining in a swoon. He soon
recovered, and for some days was still able to preside at the daily
prayers. But at last the insolence and violence of the insurgents,
rising beyond bounds, forced him to keep to his house, and a virtual
blockade ensued. But a body-guard of armed retainers, supported by
certain of the citizens, succeeded for the present in keeping the
entrance safe.
From the day of the first tumult, Aly,
Zobeir, and Talha (the three named by the Attitude of Aly, Zobeir, and
rebels as candidates for the Caliphate) Talha.
each sent a son to join the loyal and gallant band planted at the
palace door. But they did little more; and, in fact, throughout the
painful episode, they kept themselves altogether in the background.
After the uproar and Othmân’s swoon, they came along with others
to inquire how he fared. But no sooner did they enter, than Merwân
and other kinsmen tending the Caliph, cried out against Aly as the
prime author of the disaster, which would recoil, they said (and said
truly) upon his own head. Thereupon Aly arose in wrath, and, with
the rest, retired home. It was, in truth, a cruel and dastardly
desertion, and in the end bore bitter fruit for one and all. It was not
only a crime, but a fatal mistake. Alarm at the defiant rising against
constituted authority, and loyalty to the throne, equally demanded
bold and uncompromising measures. The truth was outspoken by
one of the Companions at the time. ‘Ye Coreish,’ he said, ‘there hath
been till now a strong and fenced door betwixt you and the Arabs;
wherefore do ye now break down the same?’[482]
So soon as the conspirators had shown
their true colours, Othmân despatched an Othmân closely besieged,
holds parley with Aly, Zobeir,
urgent summons to Syria and Bussorah for and Talha.
help. Muâvia, who had long foreseen the
dire necessity, was ready with a strong force which, as well as a
similar column sent by Ibn Aámir from Bussorah, hurried to their
master’s rescue. But the march was long, and the difficulty was for
Othmân to hold out until these columns reached. The insurgents had
entire possession of the Mosque and of the approaches to the
palace; and, in the height of insolence, their leader now took the
Caliph’s place at public prayers.[483] There were no troops at
Medîna, and Othmân was dependent on the little force that barely
sufficed to guard the palace entrance. It was composed of train-band
slaves, some eighteen near kinsmen, and other citizens including (as
we have said) the sons of Aly, Zobeir, and Talha. Apprehending, from
the ferocity with which the attack began now to be pressed, that the
end might not be far, Othmân sent to tell Aly, Zobeir, and Talha that
he wished to see them once more. They came and waited without
the palace, but within reach of hearing. The Caliph, from the flat roof
of his house, bade them to sit down; and so for the moment they all
sat down, both foes and friends, together. ‘My fellow citizens!’ cried
Othmân with a loud voice, ‘I have prayed to the Lord for you, that
when I am taken, he may set the Caliphate aright.’ After this, he
made mention of his previous life, and how the Lord had made
choice of him to be the Successor of his Prophet, and Commander
of the Faithful. ‘And now,’ said he, ‘ye have risen up to slay the
Lord’s elect. Have a care, ye men! (and here he addressed the
besiegers); the taking of life is lawful but for three things, Apostasy,
Murder, and Adultery. Taking my life without such cause, ye but
suspend the sword over your own necks. Sedition and bloodshed
shall not depart for ever from your midst.’ They gave him audience
thus far, and then cried out that there was yet a fourth just cause of
death, namely the quenching of truth by iniquity, and of right by
violence; and that for his ungodliness and tyranny he must abdicate
or be slain. For a moment Othmân was silent. Then calmly rising, he
bade the citizens go back to their homes; and himself, with but faint
hopes of relief, turned to re-enter his dreary abode.[484]
The blockade had now lasted several
weeks, when a mounted messenger The blockade pressed.
reached the city with tidings that succour Sufferings from thirst.
was on its way.[485] But this, coming to the knowledge of the Caliph’s
enemies, only made them redouble their efforts. They now closed
every approach, allowing neither outlet nor ingress to a single soul.
Water could be introduced by stealth only at night, and, there being
no well within the palace, the little garrison suffered the extremities of
thirst. On the appeal of Othmân, Aly interposed, and expostulated
with the besiegers. ‘They were treating their Caliph,’ he told them,
‘more cruelly than they would treat Greek or Persian captives in the
field. Even Infidels did not deny water to a thirsty enemy.’ But they
were deaf to his entreaty. Omm Habîba, the Prophet’s widow, and
sister of Muâvia, touched with pity, sought herself, with Aly’s aid, to
carry water upon her mule through the rebel lines into the palace; but
neither her sex nor rank, nor her relation to the Prophet, was
safeguard enough to prevent her being roughly handled. They cut
her bridle with their swords, so that she nearly fell to the ground, and
then drove her rudely back. The better part of the inhabitants were
shocked at the violence and inhumanity of the rebels; but none had
the courage to oppose them. Sick at heart, most kept to their
houses; while others, alarmed for themselves, as well as to avoid the
cruel spectacle, quitted Medîna. It is hard to believe that, even in the
defenceless state of the city, Aly, Zobeir, and Talha, the great heroes
of Islam, could not, had they really wished it, have raised an effective
opposition to the lawless work of these heartless regicides. History
cannot acquit them, if not of actual collusion with the insurgents, at
least of cold-blooded indifference to their Caliph’s fate.[486]
 The solemnities of the Káaba worship
were now at hand, and Othmân, still Annual pilgrimage to Mecca.
mindful of his obligation as head of Islam Dzul Hijj, a.h. XXXV. June,
a.d. 656.
to provide for their due observance, once
more ascended the palace roof. From thence he called the son of
Abbâs, one of the faithful party guarding the entrance, to come near,
and bade him assume the leadership of the band of pilgrims
proceeding from Medîna;—a duty which, much against his will, as
taking him away from the defence, he undertook at the Caliph’s
repeated command. Ayesha joined the party. She is accused of
having formerly stirred up the people against Othmân. Now, at any
rate, this impulsive lady not only shook herself free from the
insurgents, but, in order to detach her brother Mohammed, son of
Abu Bekr, also from their company, she besought him to accompany
her to Mecca. But he refused.[487]
The approach of relief at last goaded
the rebels to extremities, and they resolved The palace stormed. 18 Dzul
Hijj. June 17.
on a final and murderous attack. A violent
onset was made from all quarters, and the forlorn band of defenders
(including still the sons of Aly, Zobeir, and Talha), unable longer to
hold their ground, retired at Othmân’s command, but not without
difficulty, within the palace gate, which they closed and barred. In
doing this they covered their retreat with a discharge of archery, and
one of the rebels was killed thereby. Infuriated at their comrade’s
death, the insurgents rushed at the gate, battered it with stones, and
finding it too strong, sat down to burn it. Meanwhile others, swarming
in crowds from the roof of an adjoining building, gained an easier
access, and, rushing along the corridor, attacked the guard still
congregated within the palace gate. One was slain, Merwân was left
half dead, and the rest were overpowered.[488] Othmân had retired
by himself into an inner chamber of the women’s apartments; and,
seated there awaiting his fate, read from the Corân, spread open on
his knees. Three ruffians, sent to fulfil the bloody work, rushed in one
after another upon him thus engaged. Awed by his calm demeanour,
his pious words and mild appeal, each one returned as he went. ‘It
would be murder,’ they said, ‘to lay hands upon him thus.’
Mohammed, son of Abu Bekr, in his hate and rage, had no such
scruples. He ran in, seized him by the beard, and cried, ‘The Lord
abase thee, thou old dotard!’ ‘Let my beard go,’ said Othmân, calmly;
‘I am no dotard, but the aged Caliph, whom they call Othmân.’ Then,
in answer to a further torrent of abuse, the old man proceeded, ‘Son
of my brother! Thy father would not have served me so. The Lord
help me! To Him I flee for refuge from thee.’ The appeal touched
even the unworthy son of Abu Bekr, and he too retired. The
insurgent leaders, on this, crowded in
themselves, smote the Caliph with their And Othmân slain.
swords, and trampled on the Corân he had
been reading from. Severely wounded, he yet had strength enough
to stretch forth his aged arms, gather up the leaves, and press them
to his bosom, while the blood flowed forth upon the sacred text.[489]
Thus attacked, the faithful Nâila cast herself upon her wounded lord,
and, endeavouring to shield him, received a sword-cut which
severed some of the fingers from her hand, and they fell upon the
ground. The band of slaves attempted his defence. One of them
slew Sudân, the leader, but was immediately himself cut down and
killed. Further effort was in vain. They plunged their weapons into the
Caliph’s body, and he fell lifeless to the ground. The infuriated mob
now had their way. A scene of riot followed. They stabbed the
corpse, and leaped savagely upon it; and they were proceeding to
cut off the head, when the women screamed, beating their breasts
and faces, and the savage crew desisted. The palace was gutted;
and even Nâila, all wounded and bloody, was stripped of her veil.
Just then the cry was raised, ‘To the Treasury!’ and suddenly all
departed.[490]
As soon as they had left, the palace
gate was barred, and thus for three days Burial of Othmân.
the dead bodies of Othmân, Moghîra, and
the slave, lay in silence within. Then Zobeir ibn Motím, and Hakîm
ibn Hizâm (Khadîja’s nephew), chief men of the Coreish, obtained
leave of Aly to bury the Caliph’s body.[491] In the dusk of evening, the
funeral procession, including Zobeir, Hasan son of Aly, and the
kinsmen of Othmân, wended their way to the burying-ground of
Backî, outside the city. Death had not softened the rebels’ hearts,
and they pelted the bier with stones. Not in the graveyard itself, but
in a field adjoining, the body, with a hurried service, was committed
to the dust. In after years the field was added by Merwân to the main
burying-ground—a spot consecrated by the remains of the heroes of
Ohod, and many names famous in the early days of Islam; and there
the Beni Omeyya long buried their dead around the grave of their
murdered kinsman.[492]
Thus, at the age of eighty-two, died
Othmân, after a reign of twelve years. The His character.
misfortunes amongst which he sank bring
out so sharply the failings of his character that further delineation is
hardly needed. Narrow, weak, and vacillating, he had yet a kindly
nature which might have made him, in less troublous times, a
favourite of the people. Such, indeed, for a season he was at the
beginning of his Caliphate. But afterwards he fell on evil days. The
struggle between the Coreish and the rest of the Arabs was hurrying
on the nation to an internecine war. The only possible safety was for
the class still dominant to have opposed a strong and united front to
their adversaries. By his vacillation, selfishness, and nepotism,
Othmân broke up into embittered factions the aristocracy of Mecca,
and threw this last chance away.
 CHAPTER XXXV.
THE ELECTION OF ALY.

End of A.H. XXXV. June, A.D. 656.

On the Caliph’s death, his kinsfolk, and

such as had taken an active part in his Revulsion of feeling.
defence, retired from the scene. The city
was horror-struck. They had hardly anticipated, and could now with
difficulty realise, the tragical end. Many who had favoured, and some
who had even joined, the rebels, started back, now that the deed
was done. The nearer relatives of the murdered Caliph fled to Mecca
and elsewhere, with vows of vengeance. A citizen of Medîna,
wrapping carefully up the severed fingers of Nâila in the blood-
stained shirt of Othmân—meet symbols of revenge—carried them off
to Damascus and laid them at Muâvia’s feet.
For several days anarchy reigned at the
capital of Islam. There was neither Caliph Aly elected Caliph, 24 Dzul
nor any settled government. The regicides Hijj, 656.
a.h. XXXV. 23 June, a.d.

had the entire mastery of the city. Amongst

them the Egyptians were foremost in those first days of terror; and
public prayers (mark of supreme authority) were conducted in the
Great Mosque by their leader. Of the citizens, few ventured forth. At
last, on the fifth day, the rebels insisted that, before they quitted
Medîna, the citizens should exercise their right, elect a Caliph, and
restore the empire to its normal state. Shrinking, no doubt, from the
seething elements which Othmân’s successor would have at once to
face, Aly at first held back, and offered to swear allegiance to either
Talha or Zobeir. But in the end, pressed by the threats of the
regicides and the entreaties of his friends, he yielded, and so, six
days after the fatal tragedy, he publicly bound himself to rule
‘according to the Book of the Lord,’ and was saluted Caliph. Zobeir
and Talha were themselves the first to take the oath. They asserted
afterwards that they swore unwillingly, driven to do so through fear of
the conspirators. The traditions here are so divergent that it is hardly
possible to say how far this was true, or a mere afterthought.[493]
Talha’s arm had been disabled by the wound he received when
defending Mahomet on the battle-field; unhappy auguries were now
drawn from his withered hand being the first to strike the hand of Aly
in taking the oath of fealty. The mass of the people followed. There
were exceptions; for Aly was lenient, and, from a praise-worthy
delicacy, would not press the immediate adherents of the late Caliph
to swear allegiance.[494] The insurgents, having themselves done
homage to Aly, took their leave and departed to tell the tale at Kûfa,
Bussorah, and Fostât.
No bed of roses was strewn for Aly.
Both at home and abroad rough and He declines to punish the
regicides.
anxious work was before him. To the
standing contention between the Arabs and the Coreish was now
added the cry, which was soon to rend Islam, of vengeance on the
regicides. Further, the red-handed treason enacted at Medîna had
loosened the bonds of society. Constituted authority was set at
naught. Bands of Bedouins, scenting from afar the approach of
anarchy and the chance of plunder, hung about the city. They were
bidden to depart; but encouraged by the servile population, which,
broken loose during the insurrection, still kept aloof from their
masters, they refused.[495] Aly was pressed on many sides, by those
who held him bound by his accession-oath, to vindicate the majesty
of the Divine law, and to punish the wicked men who had imbrued
their hands in the blood of Othmân. Even Talha and Zobeir,
awakening too late to the portentous nature of the crime enacted
before their eyes and hardly against their will, urged this. ‘My
brothers,’ replied Aly, ‘I am not indifferent to what ye say. But I am
helpless. These wild Bedouins and rampant slaves will have their
way. What is this but an outburst of Paganism long suppressed—a
return, for the moment, of “the days of Ignorance,” a work of Satan?
Just now they are beyond my power. Let us wait; and the Lord will
guide us.’ This waiting, hesitating mood was the bane of Aly’s life.
He loved ease; and though sometimes obstinate and self-willed, his
ordinary principle was that things left to themselves would mend.
 The Coreish were anxious and
alarmed. The revolt, under the veil of The Coreish alarmed.
discontent at the ungodly rule of Othmân,
was now (they said) taking a far wider range. The Bedouins were
becoming impatient of the control of the Coreishite aristocracy; and
that which had happened to the Beni Omeyya—now forced to fly
Medîna—might happen at any moment to the whole body of the
Coreish. Yet Aly, though professing to denounce the attack of the
regicides as high treason, took no steps to punish it, but temporised.
A prompt and vigorous pursuit of the traitors would no doubt have
been joined in, heart and soul, by Muâvia and by the whole nobility
of Islam. But Aly preferred to let the vessel drift, and so it was drawn
rapidly into the vortex of rebellion.
The next matter which pressed for
immediate settlement was the Aly seeks to supersede
confirmation, or otherwise the Muâvia in Syria.
supersession, of the various governors of provinces and cities; and
here Aly, turning a deaf ear to his friends, proved himself wayward
and precipitate. When Ibn Abbâs returned from the pilgrimage at
Mecca (to the presidency at which he had been deputed by the late
Caliph), he found that Moghîra had been wisely urging Aly to retain
the governors generally in their posts, till, at the least, the people
throughout the empire had recognised his succession to the throne.
But Aly had flatly refused.[496] Ibn Abbâs now pressed the same
view: ‘At any rate,’ he said, ‘retain Muâvia; there is a special reason
for it; Omar, and not Othmân, placed him there; and all Syria
followeth after him.’ The advice, coming from so near and
distinguished a kinsman of his own, deserved the consideration of
Aly. But he answered sharply, ‘Nay; I shall not confirm him even for a
single day.’ ‘If thou depose him,’ reasoned his friend, ‘the Syrians will
question thine election: and, worse, they may accuse thee of the
blood of Othmân, and, as one man, rise up against thee. Confirm
him in his government, and they care not who is Caliph. When thou
art firmly seated, depose him if thou wilt. It will be easy with thee
then.’ ‘Never,’ answered Aly, ‘he shall have nought but the sword
from me.’ ‘Thou art brave,’ Ibn Abbâs replied, ‘but innocent of the