Native Title
Land rights – Crown land
In La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32 (3 September 2025), the High Court allowed by majority an appeal from the Court of Appeal of the NSW Supreme Court.
The relevant land, which fell within the lands of the La Perouse Aboriginal Land Council (LPALC), was crown land subject to a lease to the Paddington Bowls Club Ltd for recreation and erection of buildings in the form of a clubhouse, from 1962 until 2010. From 1 December 2010, a new 50-year lease was granted and, with the consent of the Crown Lands Minister, transferred to CSKS Holdings Pty Ltd (CSKS). Relevantly, CSKS did not undertake any purposeful activity on the land.
On 19 December 2016, the LPALC made a claim under s36 of Aboriginal Land Rights Act 1983 (NSW) (ALR Act) to the land, which was allowed by the Minister on the basis that the land was claimable land. The respondent appealed that decision to the Land and Environment Court of New South Wales, which dismissed the claim. The respondent then appealed to the Court of Appeal, which quashed the Minister’s the decision and held that the lease constituted relevant use of the land.
At issue was whether merely by reason of being subject of an existing lease from the crown lands vested in the crown in right of NSW are “lawfully used” within the meaning of s36(1)(b) of the ALR Act.
The High Court held:
“Lands vested in the Crown are not ‘used’ within the meaning of s 36(1)(b) of the ALR Act merely by reason of the existence of an unexpired lease of those lands from the Crown. That is because the ‘use’ of ‘lands’ vested in the Crown in right of New South Wales to which s 36(1)(b) of the ALR Act refers is limited to physical deployment of physical lands” (at [9]).
Constitutional Law
Tribunals – Exercise of judicial power
In New South Wales v Wojciechowska [2025] HCA 27 (6 August 2025), the High Court unanimously allowed an appeal from the Court of Appeal of the NSW Supreme Court.
The question at issue was whether the NSW Civil and Administrative Tribunal (NCAT) exercised judicial power when ordering that a public sector agency pay compensation for loss or damages for a breach of s55(2)(a) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).
Wojciechowska was a resident of Tasmania and sought damages in an action against the NSW Police Force Commissioner under the PPIP Act. The basis for the claim a breach of the information protection principles specified under ss8-19 of the PPIP Act.
Wojciechowska then filed proceedings in the NSW Supreme Court on the basis that NCAT did not have jurisdiction to hear the administrative review. The jurisdictional question was then referred to the Court of Appeal.
On the question of whether a state legislature has the power to confer on a state tribunal that is not a state court judicial power under ss75 and 76 of the Constitution, the Court of Appeal cited Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216, relying on Burns v Corbett (2018) 265 CLR 304.
The Court of Appeal could not distinguish the decision in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 24 (Brandy).
The High Court considered whether the power was judicial or non-judicial and the decision in Brandy, and distinguished it on four grounds, being that:
- that there is a stark difference between the scheme under the PPIP Act and the scheme considered in Brandy – the “terms reflect the character of the obligations as imposing administrative standards on public sector agencies enforceable only under and in accordance with Pt 5 of the PPIP Act, and not otherwise” (at [28])
- an internal review creates no enforceable right to a particular remedy
- the PPIP Act refers to an administrative review only
- the PPIP Act does not refer to judicial power “nothing in the text, context or operation of the statutory scheme to the point of the Tribunal making its decision convincingly bespeaks any exercise of judicial power” (at [32]).
Parliamentary Elections
Communications of electoral matter – Authorisation
In Laming v Electoral Commissioner of the Australian Electoral Commission [2025] HCA 31 (13 August 2025), the High Court of Australia allowed an appeal by majority.
The applicant (Laming) is a politician who was elected in the 2016 election and ran for the 2019 election, at which he caused Facebook posts to be made about the Redlands Hospital.
The question was:
“The narrow issue of statutory construction in the present appeal is whether s 321D(5) of the Commonwealth Electoral Act 1918 (Cth), a civil penalty provision, which requires a ‘notifying entity’ to ensure that certain ‘particulars’ are notified in ‘electoral matter’, is contravened by a single failure to ensure that the particulars are notified provided the ‘electoral matter’ is communicated to one person and irrespective of the number of people to whom the ‘electoral matter’ is communicated or is contravened on each and every occasion the ‘electoral matter’ is communicated to a person” (at [1]).
The material facts related to the three posts on Facebook that did not contain particulars or authorisation statements. These three posts were seen by 6, 8 and 14 people, respectively.
The Electoral Commissioner brought civil penalty proceedings against Laming in the Federal Court of Australia.
The Federal Court fined Laming $20,000 on the three counts, made up of $5,000, $10,000 and $5,000. The Electoral Commissioner appealed to Full Court, which imposed a penalty on each viewing, being $20,000, $10,000 and $10,000 respectively.
Laming appealed to the High Court on the basis that s321D(5) “‘was contravened on each occasion that a person viewed a post published by [him] on … Facebook … rather than finding a contravention occurred when [he] caused a post to be “made available for viewing” (at [4]).
The High Court held that the construction of the trial judge in the Federal Court was correct, namely that the relevant contravention was each time Laming caused the posts to be made, rather than each time they were viewed.
