Statutory construction
UNESCO – protection of cultural heritage
In Palmanova Pty Ltd v Commonwealth [2025] HCA 35 (3 September 2025),the High Court (Gageler CJ and Gordon, Edelman, Jagot and Beech‑Jones JJ) dismissed with costs an appeal from the Full Court of the Federal Court of Australia.
Section 14(1) of the Protection of Movable Cultural Heritage Act 1986 (Cth) (Act) states that an object is liable to forfeiture:
(1) Where:
- a protected object of a foreign country has been exported from that country;
- the export was prohibited by a law of that country relating to cultural property; and
- the object is imported…
The Act commenced in on 1 July 1987 and was enacted in anticipation of Australia adopting UNESCO’s Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 Convention). The 1970 Convention came into force in Australia on 30 January 1990.
The question before the Court was a matter of construction – that is, whether s14(1) of the Act applies to an object that had been unlawfully exported from that country before the commencement of the Act.
The High Court cited the second reading speech from the Minister for the Arts, Heritage and the Environment:
“The import controls exist solely to enable Australia to respond if an official complaint is received from a foreign government that an illegally exported object has been brought to Australia” (at [16]).
At the centre of this case was an object bought online, on or about June 2020, by an Australian company for about US$17,000. The object, an engraved black basalt vessel, had been seized by Australian Customs following a request from the Bolivian government for return of the object to Bolivia in 2021.
The Full Court held that the object was made by the Tiwanaku, a people whose culture came to prominence on the shore of what is today called Lake Titicaca, between 600 and 1000 CE. The Court found that the object had been unlawfully exported from Bolivia in 1934 (or around 1950) and rejected the argument it was necessary to consider extrinsic materials. The Court held that “the critical time for the operation” of the provisions of Part II of the Act “is the time of import into, or export from, Australia” and that the text of s14(1) provided “no basis” to limit its application to exports from a foreign country after the Act’s commencement (at [44]).
The High Court agreed with the construction adopted by the Full Court majority and held that:
“The text of s 14(1) and (2) of the Act therefore involves neither surplusage nor redundancy. In using the present perfect tense, s 14(1)(a) and (2)(a) each express the criterion of operation that an object which is at the time of importation into Australia a protected object of a foreign country is also an object that was previously exported from that foreign country. The use of the present perfect tense indicates no further temporal limitation as to when the object was exported from that foreign country” (at [65]).
Criminal law
Tribunals – exercise of judicial power
In CD v Commonwealth; CD v Director of Public Prosecutions (SA) [2025] HCA 37 (8 October 2025),the High Court (Gageler CJ and Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ) dismissed a special case commenced by writ of summons with costs.
The standard question to be answered by the special case was:
[show as indented blockquote to match the formatting from the Act]
1. Is the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) invalid, either in whole or in part, because:
(a) it is an impermissible exercise by the Parliament of the judicial power of the Commonwealth; or
(b) it impermissibly interferes with and undermines the institutional integrity of courts vested with federal jurisdiction?
The plaintiffs used the ANOM application to communicate. The Australian Federal Police (AFP) obtained warrants to access the communications, pursuant to the Surveillance Devices Act 2004 (Cth) and the Crimes Act 1914 (Cth). The communications were sent to servers that could be accessed by the AFP without the plaintiffs’ knowledge or consent.
The plaintiffs were charged with various offences, and the SA Director of Public Prosecutions (DPP) sought to rely on evidence of the ANOM communications. The plaintiffs filed an interlocutory application seeking the exclusion of the ANOM evidence, which was dismissed by the trial judge.
The Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) (SLCA Act) was enacted in 2024.
The High Court cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992), which quoted R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) and referred to, for example, Polyukhovich v Commonwealth (1991).
The High Court stated that the provisions of the SLCA Act “do no more than reflect the law as established in several cases”, which include Nicholas v The Queen (1998) and Duncan v Independent Commission Against Corruption (2015) (at [13]).
The Court held that the SLCA Act was not invalid, because:
“Properly construed, therefore, the impugned law in all its potential operations does not trespass on the exclusively judicial function of adjudging and punishing criminal guilt. Rather, the impugned law facilitates the admission of evidence which might otherwise be excluded by either ss 63 and 77 of the [Telecommunications (Interception and Access) Act 1979 (Cth)], s 138 of the Uniform Evidence Law legislation (as enacted by Commonwealth, State or Territory law), or the common law discretion to exclude illegally obtained evidence” (at [25]).
