Prior v Mole


The High Court has dismissed an appeal against a decision of the Northern Territory Court of Appeal on the legality and consequences of a public drunkenness arrest. Two police officers fined the appellant for drinking in public and, following an altercation, took him into protective custody purportedly under s 128 of the Police Administration Act (NT). Section 128(1) allows a police officer to take a person into custody if the officer has reasonable grounds for believing the person is intoxicated in a public place and because of that intoxication is unable to care for him or herself, may intimidate, alarm or cause substantial annoyance to people, or is likely to commit an offence. The appellant was acquitted on a charge of disorderly behaviour, but convicted of assaulting a police officer and indecent behaviour. The NTCA held that the arrest was lawful, despite a lack of evidence that the defendant would continue to drink in public or intimidate people after the police left, and not an improper use of the power. Before the High Court the appellant sought to argue that the none of the required possible concerns contained in s 128(1)(c) had been met, because the arresting officer could not have formed the relevant reasonable beliefs, based on his limited engagement with the facts at the scene as admitted in his own evidence, and instead relied at least in part on his ‘policing experience’ which was not sufficient to discharge the requirements of s 128.

The High Court, by majority, dismissed the appeal 4:1 in four judgments (Kiefel and Bell JJ, Nettle J, Gordon J, Gageler J dissenting).

Kiefel and Bell JJ focused on and rejected the appellant’s central contention that the Court of Appeal erred in holding that the arresting officer was entitled to rely on his policing experience to support the beliefs required by s 128, because an ‘”undifferentiated pool of experience”‘ of other people could not be a reasonable ground for a belief about how a particular person is likely to behave (at [14]–[16]). Kiefel and Bell JJ rejected the suggestion in the submission that this might have included ‘arbitrary assumptions’ based on racially prejudiced views of Indigenous people, as this was not raised in cross-examination (at [17]–[18]) and concluded that the Court of Appeal’s inference was drawn instead from the officer’s experience of dealing with intoxicated people who were behaving aggressively (at [19]): ‘The Court of Appeal’s capacity to assess the reasonableness of these conclusions did not depend upon, and was unlikely to be advanced by, an account of Constable Blansjaar’s history of dealing with intoxicated persons. The assessment is one about which reasonable minds may differ, but in our view the Court of Appeal’s finding was open to it.’ Kiefel and Bell JJ also rejected the appellant’s alternative ground that even if the requirements of s 128 were met, the decision to apprehend him was beyond the limits of the power as disproportionate to its legitimate purpose: while the actual offence was not punishable by imprisonment, the purposes of the custody power included preventing alcohol-related offences, which the officer had reasonable grounds for suspecting would occur once the police left (at [20]).

Nettle J also rejected the appellant’s contentions that the officer’s previous experience was not a sufficiently reasonable basis for forming the beliefs required by s 128 (at [69]ff). Specifically, the appellant’s argument before the Court of Appeal and the High Court suggesting that the officer acted on the basis of racial prejudice should be rejected because it was not raised in the lower courts or in cross-examination (at [70]ff). Nettle J also rejected the contentions that the only experience relevant to s 128 was how the appellant himself had behaved in the past, or that the officer needed to precisely identify each fact and circumstance supporting his view that the appellant should be put in protective custody; rather, it was sufficient for the officer to outline is past experience combined with his observations of the appellant and the circumstances, namely, of similar intoxicated people and their situations (at [72]). Nettle J likewise rejected the exercise of the custody power arguments, holding that the object of the power was to prevent alcohol-related offending and protect people from harms or nuisance from the misuse of alcohol, which here included taking people who were likely to continue drinking illegally into custody (at [77]).

Gordon J also dismissed the appeal, on the basis that the officer had reasonable grounds for believing that the appellant was likely to commit an offence contrary to sub-s (1)(c)(iv), namely a combination of the officer’s observation of the appellant’s demeanour, behaviour and circumstances (specifically, his drunkenness and the ready availability of alcohol at nearby bottle shops) and his experience to conclude that it was likely the appellant would continue drinking in public and thus commit and offence once the police left the scene (at [105]ff). Gordon J also dismissed the suggestions of racial stereotyping as not raised at trial or cross-examination (at [114]) and the wider argument that general experience was impermissible because the officer had only observed the appellant for a short period of time (at [118]). Gordon J concluded at that point that the appeal should be dismissed, but her Honour did go on note that the ‘intimidate, alarm or cause substantial annoyance to people’ ground for the arrest would not have been supported here (at [120]ff). Finally, Gordon J rejected the general disproportionate and unreasonable exercise of the s 128 power argument: the power here has a protective and preventative function, and preventing putting into custody a person likely to commit further alcohol-related offences was within the bounds of legal reasonableness and a proper exercise of the power (at [130]).

Gageler J, in dissent, first stated a general principle of a common law protection of personal liberty, secured partly by the confinement, plain statement and ready ascertainment of the circumstances in which a police officer can arrest or detain a person without a warrant: at [22]. In the context of preconditions in s 128 reflecting this principle, a court must answer three questions: ‘What was [the officer’s] belief? What were the objective circumstances by reference to which he formed that belief? [and] Did those objective circumstances provide a sufficient foundation for a reasonable person to form the requisite state of mind, being a belief in (and not merely a suspicion of) the existence of the matters in s 128(1)(a) and (b) of one or more of the matters in s 128(1)(c)(i) to (iv)?’ (at [24]–[26]). For Gageler J, the manner in which a court answers this third question is ‘central to the realisation of the legislative purpose of guarding against an arbitrary deprivation of liberty’, specifically, to assess the identified circumstances for itself (at [27]):

Reference to the member’s actual process of reasoning might assist that assessment. But this is not an occasion on which a court can be justified in giving weight to the opinion of the repository whose exercise of power is the subject of judicial review. The whole point of requiring “reasonable grounds” for the requisite belief is to ensure that the reasonableness of the belief appear to a court and not merely to the member. That the member, as an experienced member of the Police Force, might have thought that his belief was reasonable is not to the point. The member’s belief in the reasonableness of his own belief is not relevant to the task of the court. The court must arrive at its own independent answer through its own independent assessment of the objective circumstances which the member took into account.

As applied here, for Gageler J the officer’s brief observations of the appellant and the circumstances were not sufficient to lead a reasonable person to believe the appellant might intimidate, alarm or cause substantial annoyance to another person or continue drinking alcohol if left where he was (at [34]). Gageler J’s evaluation was based on two problems his Honour identified in the officer’s beliefs: first, anger and abuse towards the public as the abuse was directed at the police, not the public (at [36]–[40]), and second that the appellant would continue drinking after the alcohol was poured out, because no relevant patterns of behaviour specifically about the appellant’s conduct could be drawn from general ‘experience’ as a police officer (at [41]–[47]). Ultimately, in Gageler J’s ‘own independent assessmnet’ there was an insufficient basis in the circumstances disclosed by the evidence to found a reasonable belief that the appellant would continue to consumer liquor, contrary to the Liquor Act when he was taken into custody: at [48].

Prior v Mole

The High Court has dismissed an appeal against a decision of the Northern Territory Court of Appeal on the legality and consequences of a public drunkenness arrest. Two police officers fined the appellant for drinking in public and, following an altercation, took him into protective custody purportedly under s 128 of the Police Administration Act (NT). Section 128(1) allows a police officer to take a person into custody if the officer has reasonable grounds for believing the person is intoxicated in a public place and because of that intoxication is unable to care for him or herself, may intimidate, alarm or cause substantial annoyance to people, or is likely to commit an offence. The appellant was acquitted on a charge of disorderly behaviour, but convicted of assaulting a police officer and indecent behaviour. The NTCA held that the arrest was lawful, despite a lack of evidence that the defendant would continue to drink in public or intimidate people after the police left, and not an improper use of the power. Before the High Court the appellant sought to argue that the none of the required possible concerns contained in s 128(1)(c) had been met, because the arresting officer could not have formed the relevant reasonable beliefs, based on his limited engagement with the facts at the scene as admitted in his own evidence, and instead relied at least in part on his ‘policing experience’ which was not sufficient to discharge the requirements of s 128.

The High Court, by majority, dismissed the appeal 4:1 in four judgments (Kiefel and Bell JJ, Nettle J, Gordon J, Gageler J dissenting).

Kiefel and Bell JJ focused on and rejected the appellant’s central contention that the Court of Appeal erred in holding that the arresting officer was entitled to rely on his policing experience to support the beliefs required by s 128, because an ‘”undifferentiated pool of experience”‘ of other people could not be a reasonable ground for a belief about how a particular person is likely to behave (at [14]–[16]). Kiefel and Bell JJ rejected the suggestion in the submission that this might have included ‘arbitrary assumptions’ based on racially prejudiced views of Indigenous people, as this was not raised in cross-examination (at [17]–[18]) and concluded that the Court of Appeal’s inference was drawn instead from the officer’s experience of dealing with intoxicated people who were behaving aggressively (at [19]): ‘The Court of Appeal’s capacity to assess the reasonableness of these conclusions did not depend upon, and was unlikely to be advanced by, an account of Constable Blansjaar’s history of dealing with intoxicated persons. The assessment is one about which reasonable minds may differ, but in our view the Court of Appeal’s finding was open to it.’ Kiefel and Bell JJ also rejected the appellant’s alternative ground that even if the requirements of s 128 were met, the decision to apprehend him was beyond the limits of the power as disproportionate to its legitimate purpose: while the actual offence was not punishable by imprisonment, the purposes of the custody power included preventing alcohol-related offences, which the officer had reasonable grounds for suspecting would occur once the police left (at [20]).

Nettle J also rejected the appellant’s contentions that the officer’s previous experience was not a sufficiently reasonable basis for forming the beliefs required by s 128 (at [69]ff). Specifically, the appellant’s argument before the Court of Appeal and the High Court suggesting that the officer acted on the basis of racial prejudice should be rejected because it was not raised in the lower courts or in cross-examination (at [70]ff). Nettle J also rejected the contentions that the only experience relevant to s 128 was how the appellant himself had behaved in the past, or that the officer needed to precisely identify each fact and circumstance supporting his view that the appellant should be put in protective custody; rather, it was sufficient for the officer to outline is past experience combined with his observations of the appellant and the circumstances, namely, of similar intoxicated people and their situations (at [72]). Nettle J likewise rejected the exercise of the custody power arguments, holding that the object of the power was to prevent alcohol-related offending and protect people from harms or nuisance from the misuse of alcohol, which here included taking people who were likely to continue drinking illegally into custody (at [77]).

Gordon J also dismissed the appeal, on the basis that the officer had reasonable grounds for believing that the appellant was likely to commit an offence contrary to sub-s (1)(c)(iv), namely a combination of the officer’s observation of the appellant’s demeanour, behaviour and circumstances (specifically, his drunkenness and the ready availability of alcohol at nearby bottle shops) and his experience to conclude that it was likely the appellant would continue drinking in public and thus commit and offence once the police left the scene (at [105]ff). Gordon J also dismissed the suggestions of racial stereotyping as not raised at trial or cross-examination (at [114]) and the wider argument that general experience was impermissible because the officer had only observed the appellant for a short period of time (at [118]). Gordon J concluded at that point that the appeal should be dismissed, but her Honour did go on note that the ‘intimidate, alarm or cause substantial annoyance to people’ ground for the arrest would not have been supported here (at [120]ff). Finally, Gordon J rejected the general disproportionate and unreasonable exercise of the s 128 power argument: the power here has a protective and preventative function, and preventing putting into custody a person likely to commit further alcohol-related offences was within the bounds of legal reasonableness and a proper exercise of the power (at [130]).

Gageler J, in dissent, first stated a general principle of a common law protection of personal liberty, secured partly by the confinement, plain statement and ready ascertainment of the circumstances in which a police officer can arrest or detain a person without a warrant: at [22]. In the context of preconditions in s 128 reflecting this principle, a court must answer three questions: ‘What was [the officer’s] belief? What were the objective circumstances by reference to which he formed that belief? [and] Did those objective circumstances provide a sufficient foundation for a reasonable person to form the requisite state of mind, being a belief in (and not merely a suspicion of) the existence of the matters in s 128(1)(a) and (b) of one or more of the matters in s 128(1)(c)(i) to (iv)?’ (at [24]–[26]). For Gageler J, the manner in which a court answers this third question is ‘central to the realisation of the legislative purpose of guarding against an arbitrary deprivation of liberty’, specifically, to assess the identified circumstances for itself (at [27]):

Reference to the member’s actual process of reasoning might assist that assessment. But this is not an occasion on which a court can be justified in giving weight to the opinion of the repository whose exercise of power is the subject of judicial review. The whole point of requiring “reasonable grounds” for the requisite belief is to ensure that the reasonableness of the belief appear to a court and not merely to the member. That the member, as an experienced member of the Police Force, might have thought that his belief was reasonable is not to the point. The member’s belief in the reasonableness of his own belief is not relevant to the task of the court. The court must arrive at its own independent answer through its own independent assessment of the objective circumstances which the member took into account.

As applied here, for Gageler J the officer’s brief observations of the appellant and the circumstances were not sufficient to lead a reasonable person to believe the appellant might intimidate, alarm or cause substantial annoyance to another person or continue drinking alcohol if left where he was (at [34]). Gageler J’s evaluation was based on two problems his Honour identified in the officer’s beliefs: first, anger and abuse towards the public as the abuse was directed at the police, not the public (at [36]–[40]), and second that the appellant would continue drinking after the alcohol was poured out, because no relevant patterns of behaviour specifically about the appellant’s conduct could be drawn from general ‘experience’ as a police officer (at [41]–[47]). Ultimately, in Gageler J’s ‘own independent assessmnet’ there was an insufficient basis in the circumstances disclosed by the evidence to found a reasonable belief that the appellant would continue to consumer liquor, contrary to the Liquor Act when he was taken into custody: at [48].

Prior v Mole

The High Court has dismissed an appeal against a decision of the Northern Territory Court of Appeal on the legality and consequences of a public drunkenness arrest. Two police officers fined the appellant for drinking in public and, following an altercation, took him into protective custody purportedly under s 128 of the Police Administration Act (NT). Section 128(1) allows a police officer to take a person into custody if the officer has reasonable grounds for believing the person is intoxicated in a public place and because of that intoxication is unable to care for him or herself, may intimidate, alarm or cause substantial annoyance to people, or is likely to commit an offence. The appellant was acquitted on a charge of disorderly behaviour, but convicted of assaulting a police officer and indecent behaviour. The NTCA held that the arrest was lawful, despite a lack of evidence that the defendant would continue to drink in public or intimidate people after the police left, and not an improper use of the power. Before the High Court the appellant sought to argue that the none of the required possible concerns contained in s 128(1)(c) had been met, because the arresting officer could not have formed the relevant reasonable beliefs, based on his limited engagement with the facts at the scene as admitted in his own evidence, and instead relied at least in part on his ‘policing experience’ which was not sufficient to discharge the requirements of s 128.

The High Court, by majority, dismissed the appeal 4:1 in four judgments (Kiefel and Bell JJ, Nettle J, Gordon J, Gageler J dissenting).

Kiefel and Bell JJ focused on and rejected the appellant’s central contention that the Court of Appeal erred in holding that the arresting officer was entitled to rely on his policing experience to support the beliefs required by s 128, because an ‘”undifferentiated pool of experience”‘ of other people could not be a reasonable ground for a belief about how a particular person is likely to behave (at [14]–[16]). Kiefel and Bell JJ rejected the suggestion in the submission that this might have included ‘arbitrary assumptions’ based on racially prejudiced views of Indigenous people, as this was not raised in cross-examination (at [17]–[18]) and concluded that the Court of Appeal’s inference was drawn instead from the officer’s experience of dealing with intoxicated people who were behaving aggressively (at [19]): ‘The Court of Appeal’s capacity to assess the reasonableness of these conclusions did not depend upon, and was unlikely to be advanced by, an account of Constable Blansjaar’s history of dealing with intoxicated persons. The assessment is one about which reasonable minds may differ, but in our view the Court of Appeal’s finding was open to it.’ Kiefel and Bell JJ also rejected the appellant’s alternative ground that even if the requirements of s 128 were met, the decision to apprehend him was beyond the limits of the power as disproportionate to its legitimate purpose: while the actual offence was not punishable by imprisonment, the purposes of the custody power included preventing alcohol-related offences, which the officer had reasonable grounds for suspecting would occur once the police left (at [20]).

Nettle J also rejected the appellant’s contentions that the officer’s previous experience was not a sufficiently reasonable basis for forming the beliefs required by s 128 (at [69]ff). Specifically, the appellant’s argument before the Court of Appeal and the High Court suggesting that the officer acted on the basis of racial prejudice should be rejected because it was not raised in the lower courts or in cross-examination (at [70]ff). Nettle J also rejected the contentions that the only experience relevant to s 128 was how the appellant himself had behaved in the past, or that the officer needed to precisely identify each fact and circumstance supporting his view that the appellant should be put in protective custody; rather, it was sufficient for the officer to outline is past experience combined with his observations of the appellant and the circumstances, namely, of similar intoxicated people and their situations (at [72]). Nettle J likewise rejected the exercise of the custody power arguments, holding that the object of the power was to prevent alcohol-related offending and protect people from harms or nuisance from the misuse of alcohol, which here included taking people who were likely to continue drinking illegally into custody (at [77]).

Gordon J also dismissed the appeal, on the basis that the officer had reasonable grounds for believing that the appellant was likely to commit an offence contrary to sub-s (1)(c)(iv), namely a combination of the officer’s observation of the appellant’s demeanour, behaviour and circumstances (specifically, his drunkenness and the ready availability of alcohol at nearby bottle shops) and his experience to conclude that it was likely the appellant would continue drinking in public and thus commit and offence once the police left the scene (at [105]ff). Gordon J also dismissed the suggestions of racial stereotyping as not raised at trial or cross-examination (at [114]) and the wider argument that general experience was impermissible because the officer had only observed the appellant for a short period of time (at [118]). Gordon J concluded at that point that the appeal should be dismissed, but her Honour did go on note that the ‘intimidate, alarm or cause substantial annoyance to people’ ground for the arrest would not have been supported here (at [120]ff). Finally, Gordon J rejected the general disproportionate and unreasonable exercise of the s 128 power argument: the power here has a protective and preventative function, and preventing putting into custody a person likely to commit further alcohol-related offences was within the bounds of legal reasonableness and a proper exercise of the power (at [130]).

Gageler J, in dissent, first stated a general principle of a common law protection of personal liberty, secured partly by the confinement, plain statement and ready ascertainment of the circumstances in which a police officer can arrest or detain a person without a warrant: at [22]. In the context of preconditions in s 128 reflecting this principle, a court must answer three questions: ‘What was [the officer’s] belief? What were the objective circumstances by reference to which he formed that belief? [and] Did those objective circumstances provide a sufficient foundation for a reasonable person to form the requisite state of mind, being a belief in (and not merely a suspicion of) the existence of the matters in s 128(1)(a) and (b) of one or more of the matters in s 128(1)(c)(i) to (iv)?’ (at [24]–[26]). For Gageler J, the manner in which a court answers this third question is ‘central to the realisation of the legislative purpose of guarding against an arbitrary deprivation of liberty’, specifically, to assess the identified circumstances for itself (at [27]):

Reference to the member’s actual process of reasoning might assist that assessment. But this is not an occasion on which a court can be justified in giving weight to the opinion of the repository whose exercise of power is the subject of judicial review. The whole point of requiring “reasonable grounds” for the requisite belief is to ensure that the reasonableness of the belief appear to a court and not merely to the member. That the member, as an experienced member of the Police Force, might have thought that his belief was reasonable is not to the point. The member’s belief in the reasonableness of his own belief is not relevant to the task of the court. The court must arrive at its own independent answer through its own independent assessment of the objective circumstances which the member took into account.

As applied here, for Gageler J the officer’s brief observations of the appellant and the circumstances were not sufficient to lead a reasonable person to believe the appellant might intimidate, alarm or cause substantial annoyance to another person or continue drinking alcohol if left where he was (at [34]). Gageler J’s evaluation was based on two problems his Honour identified in the officer’s beliefs: first, anger and abuse towards the public as the abuse was directed at the police, not the public (at [36]–[40]), and second that the appellant would continue drinking after the alcohol was poured out, because no relevant patterns of behaviour specifically about the appellant’s conduct could be drawn from general ‘experience’ as a police officer (at [41]–[47]). Ultimately, in Gageler J’s ‘own independent assessmnet’ there was an insufficient basis in the circumstances disclosed by the evidence to found a reasonable belief that the appellant would continue to consumer liquor, contrary to the Liquor Act when he was taken into custody: at [48].

Prior v Mole

The High Court has dismissed an appeal against a decision of the Northern Territory Court of Appeal on the legality and consequences of a public drunkenness arrest. Two police officers fined the appellant for drinking in public and, following an altercation, took him into protective custody purportedly under s 128 of the Police Administration Act (NT). Section 128(1) allows a police officer to take a person into custody if the officer has reasonable grounds for believing the person is intoxicated in a public place and because of that intoxication is unable to care for him or herself, may intimidate, alarm or cause substantial annoyance to people, or is likely to commit an offence. The appellant was acquitted on a charge of disorderly behaviour, but convicted of assaulting a police officer and indecent behaviour. The NTCA held that the arrest was lawful, despite a lack of evidence that the defendant would continue to drink in public or intimidate people after the police left, and not an improper use of the power. Before the High Court the appellant sought to argue that the none of the required possible concerns contained in s 128(1)(c) had been met, because the arresting officer could not have formed the relevant reasonable beliefs, based on his limited engagement with the facts at the scene as admitted in his own evidence, and instead relied at least in part on his ‘policing experience’ which was not sufficient to discharge the requirements of s 128.

The High Court, by majority, dismissed the appeal 4:1 in four judgments (Kiefel and Bell JJ, Nettle J, Gordon J, Gageler J dissenting).

Kiefel and Bell JJ focused on and rejected the appellant’s central contention that the Court of Appeal erred in holding that the arresting officer was entitled to rely on his policing experience to support the beliefs required by s 128, because an ‘”undifferentiated pool of experience”‘ of other people could not be a reasonable ground for a belief about how a particular person is likely to behave (at [14]–[16]). Kiefel and Bell JJ rejected the suggestion in the submission that this might have included ‘arbitrary assumptions’ based on racially prejudiced views of Indigenous people, as this was not raised in cross-examination (at [17]–[18]) and concluded that the Court of Appeal’s inference was drawn instead from the officer’s experience of dealing with intoxicated people who were behaving aggressively (at [19]): ‘The Court of Appeal’s capacity to assess the reasonableness of these conclusions did not depend upon, and was unlikely to be advanced by, an account of Constable Blansjaar’s history of dealing with intoxicated persons. The assessment is one about which reasonable minds may differ, but in our view the Court of Appeal’s finding was open to it.’ Kiefel and Bell JJ also rejected the appellant’s alternative ground that even if the requirements of s 128 were met, the decision to apprehend him was beyond the limits of the power as disproportionate to its legitimate purpose: while the actual offence was not punishable by imprisonment, the purposes of the custody power included preventing alcohol-related offences, which the officer had reasonable grounds for suspecting would occur once the police left (at [20]).

Nettle J also rejected the appellant’s contentions that the officer’s previous experience was not a sufficiently reasonable basis for forming the beliefs required by s 128 (at [69]ff). Specifically, the appellant’s argument before the Court of Appeal and the High Court suggesting that the officer acted on the basis of racial prejudice should be rejected because it was not raised in the lower courts or in cross-examination (at [70]ff). Nettle J also rejected the contentions that the only experience relevant to s 128 was how the appellant himself had behaved in the past, or that the officer needed to precisely identify each fact and circumstance supporting his view that the appellant should be put in protective custody; rather, it was sufficient for the officer to outline is past experience combined with his observations of the appellant and the circumstances, namely, of similar intoxicated people and their situations (at [72]). Nettle J likewise rejected the exercise of the custody power arguments, holding that the object of the power was to prevent alcohol-related offending and protect people from harms or nuisance from the misuse of alcohol, which here included taking people who were likely to continue drinking illegally into custody (at [77]).

Gordon J also dismissed the appeal, on the basis that the officer had reasonable grounds for believing that the appellant was likely to commit an offence contrary to sub-s (1)(c)(iv), namely a combination of the officer’s observation of the appellant’s demeanour, behaviour and circumstances (specifically, his drunkenness and the ready availability of alcohol at nearby bottle shops) and his experience to conclude that it was likely the appellant would continue drinking in public and thus commit and offence once the police left the scene (at [105]ff). Gordon J also dismissed the suggestions of racial stereotyping as not raised at trial or cross-examination (at [114]) and the wider argument that general experience was impermissible because the officer had only observed the appellant for a short period of time (at [118]). Gordon J concluded at that point that the appeal should be dismissed, but her Honour did go on note that the ‘intimidate, alarm or cause substantial annoyance to people’ ground for the arrest would not have been supported here (at [120]ff). Finally, Gordon J rejected the general disproportionate and unreasonable exercise of the s 128 power argument: the power here has a protective and preventative function, and preventing putting into custody a person likely to commit further alcohol-related offences was within the bounds of legal reasonableness and a proper exercise of the power (at [130]).

Gageler J, in dissent, first stated a general principle of a common law protection of personal liberty, secured partly by the confinement, plain statement and ready ascertainment of the circumstances in which a police officer can arrest or detain a person without a warrant: at [22]. In the context of preconditions in s 128 reflecting this principle, a court must answer three questions: ‘What was [the officer’s] belief? What were the objective circumstances by reference to which he formed that belief? [and] Did those objective circumstances provide a sufficient foundation for a reasonable person to form the requisite state of mind, being a belief in (and not merely a suspicion of) the existence of the matters in s 128(1)(a) and (b) of one or more of the matters in s 128(1)(c)(i) to (iv)?’ (at [24]–[26]). For Gageler J, the manner in which a court answers this third question is ‘central to the realisation of the legislative purpose of guarding against an arbitrary deprivation of liberty’, specifically, to assess the identified circumstances for itself (at [27]):

Reference to the member’s actual process of reasoning might assist that assessment. But this is not an occasion on which a court can be justified in giving weight to the opinion of the repository whose exercise of power is the subject of judicial review. The whole point of requiring “reasonable grounds” for the requisite belief is to ensure that the reasonableness of the belief appear to a court and not merely to the member. That the member, as an experienced member of the Police Force, might have thought that his belief was reasonable is not to the point. The member’s belief in the reasonableness of his own belief is not relevant to the task of the court. The court must arrive at its own independent answer through its own independent assessment of the objective circumstances which the member took into account.

As applied here, for Gageler J the officer’s brief observations of the appellant and the circumstances were not sufficient to lead a reasonable person to believe the appellant might intimidate, alarm or cause substantial annoyance to another person or continue drinking alcohol if left where he was (at [34]). Gageler J’s evaluation was based on two problems his Honour identified in the officer’s beliefs: first, anger and abuse towards the public as the abuse was directed at the police, not the public (at [36]–[40]), and second that the appellant would continue drinking after the alcohol was poured out, because no relevant patterns of behaviour specifically about the appellant’s conduct could be drawn from general ‘experience’ as a police officer (at [41]–[47]). Ultimately, in Gageler J’s ‘own independent assessmnet’ there was an insufficient basis in the circumstances disclosed by the evidence to found a reasonable belief that the appellant would continue to consumer liquor, contrary to the Liquor Act when he was taken into custody: at [48].

Prior v Mole

The High Court has dismissed an appeal against a decision of the Northern Territory Court of Appeal on the legality and consequences of a public drunkenness arrest. Two police officers fined the appellant for drinking in public and, following an altercation, took him into protective custody purportedly under s 128 of the Police Administration Act (NT). Section 128(1) allows a police officer to take a person into custody if the officer has reasonable grounds for believing the person is intoxicated in a public place and because of that intoxication is unable to care for him or herself, may intimidate, alarm or cause substantial annoyance to people, or is likely to commit an offence. The appellant was acquitted on a charge of disorderly behaviour, but convicted of assaulting a police officer and indecent behaviour. The NTCA held that the arrest was lawful, despite a lack of evidence that the defendant would continue to drink in public or intimidate people after the police left, and not an improper use of the power. Before the High Court the appellant sought to argue that the none of the required possible concerns contained in s 128(1)(c) had been met, because the arresting officer could not have formed the relevant reasonable beliefs, based on his limited engagement with the facts at the scene as admitted in his own evidence, and instead relied at least in part on his ‘policing experience’ which was not sufficient to discharge the requirements of s 128.

The High Court, by majority, dismissed the appeal 4:1 in four judgments (Kiefel and Bell JJ, Nettle J, Gordon J, Gageler J dissenting).

Kiefel and Bell JJ focused on and rejected the appellant’s central contention that the Court of Appeal erred in holding that the arresting officer was entitled to rely on his policing experience to support the beliefs required by s 128, because an ‘”undifferentiated pool of experience”‘ of other people could not be a reasonable ground for a belief about how a particular person is likely to behave (at [14]–[16]). Kiefel and Bell JJ rejected the suggestion in the submission that this might have included ‘arbitrary assumptions’ based on racially prejudiced views of Indigenous people, as this was not raised in cross-examination (at [17]–[18]) and concluded that the Court of Appeal’s inference was drawn instead from the officer’s experience of dealing with intoxicated people who were behaving aggressively (at [19]): ‘The Court of Appeal’s capacity to assess the reasonableness of these conclusions did not depend upon, and was unlikely to be advanced by, an account of Constable Blansjaar’s history of dealing with intoxicated persons. The assessment is one about which reasonable minds may differ, but in our view the Court of Appeal’s finding was open to it.’ Kiefel and Bell JJ also rejected the appellant’s alternative ground that even if the requirements of s 128 were met, the decision to apprehend him was beyond the limits of the power as disproportionate to its legitimate purpose: while the actual offence was not punishable by imprisonment, the purposes of the custody power included preventing alcohol-related offences, which the officer had reasonable grounds for suspecting would occur once the police left (at [20]).

Nettle J also rejected the appellant’s contentions that the officer’s previous experience was not a sufficiently reasonable basis for forming the beliefs required by s 128 (at [69]ff). Specifically, the appellant’s argument before the Court of Appeal and the High Court suggesting that the officer acted on the basis of racial prejudice should be rejected because it was not raised in the lower courts or in cross-examination (at [70]ff). Nettle J also rejected the contentions that the only experience relevant to s 128 was how the appellant himself had behaved in the past, or that the officer needed to precisely identify each fact and circumstance supporting his view that the appellant should be put in protective custody; rather, it was sufficient for the officer to outline is past experience combined with his observations of the appellant and the circumstances, namely, of similar intoxicated people and their situations (at [72]). Nettle J likewise rejected the exercise of the custody power arguments, holding that the object of the power was to prevent alcohol-related offending and protect people from harms or nuisance from the misuse of alcohol, which here included taking people who were likely to continue drinking illegally into custody (at [77]).

Gordon J also dismissed the appeal, on the basis that the officer had reasonable grounds for believing that the appellant was likely to commit an offence contrary to sub-s (1)(c)(iv), namely a combination of the officer’s observation of the appellant’s demeanour, behaviour and circumstances (specifically, his drunkenness and the ready availability of alcohol at nearby bottle shops) and his experience to conclude that it was likely the appellant would continue drinking in public and thus commit and offence once the police left the scene (at [105]ff). Gordon J also dismissed the suggestions of racial stereotyping as not raised at trial or cross-examination (at [114]) and the wider argument that general experience was impermissible because the officer had only observed the appellant for a short period of time (at [118]). Gordon J concluded at that point that the appeal should be dismissed, but her Honour did go on note that the ‘intimidate, alarm or cause substantial annoyance to people’ ground for the arrest would not have been supported here (at [120]ff). Finally, Gordon J rejected the general disproportionate and unreasonable exercise of the s 128 power argument: the power here has a protective and preventative function, and preventing putting into custody a person likely to commit further alcohol-related offences was within the bounds of legal reasonableness and a proper exercise of the power (at [130]).

Gageler J, in dissent, first stated a general principle of a common law protection of personal liberty, secured partly by the confinement, plain statement and ready ascertainment of the circumstances in which a police officer can arrest or detain a person without a warrant: at [22]. In the context of preconditions in s 128 reflecting this principle, a court must answer three questions: ‘What was [the officer’s] belief? What were the objective circumstances by reference to which he formed that belief? [and] Did those objective circumstances provide a sufficient foundation for a reasonable person to form the requisite state of mind, being a belief in (and not merely a suspicion of) the existence of the matters in s 128(1)(a) and (b) of one or more of the matters in s 128(1)(c)(i) to (iv)?’ (at [24]–[26]). For Gageler J, the manner in which a court answers this third question is ‘central to the realisation of the legislative purpose of guarding against an arbitrary deprivation of liberty’, specifically, to assess the identified circumstances for itself (at [27]):

Reference to the member’s actual process of reasoning might assist that assessment. But this is not an occasion on which a court can be justified in giving weight to the opinion of the repository whose exercise of power is the subject of judicial review. The whole point of requiring “reasonable grounds” for the requisite belief is to ensure that the reasonableness of the belief appear to a court and not merely to the member. That the member, as an experienced member of the Police Force, might have thought that his belief was reasonable is not to the point. The member’s belief in the reasonableness of his own belief is not relevant to the task of the court. The court must arrive at its own independent answer through its own independent assessment of the objective circumstances which the member took into account.

As applied here, for Gageler J the officer’s brief observations of the appellant and the circumstances were not sufficient to lead a reasonable person to believe the appellant might intimidate, alarm or cause substantial annoyance to another person or continue drinking alcohol if left where he was (at [34]). Gageler J’s evaluation was based on two problems his Honour identified in the officer’s beliefs: first, anger and abuse towards the public as the abuse was directed at the police, not the public (at [36]–[40]), and second that the appellant would continue drinking after the alcohol was poured out, because no relevant patterns of behaviour specifically about the appellant’s conduct could be drawn from general ‘experience’ as a police officer (at [41]–[47]). Ultimately, in Gageler J’s ‘own independent assessmnet’ there was an insufficient basis in the circumstances disclosed by the evidence to found a reasonable belief that the appellant would continue to consumer liquor, contrary to the Liquor Act when he was taken into custody: at [48].

Kumar v Minister for Immigration and Border Protection

The High Court has allowed an appeal against a decision the Federal Court of Australia on the extension of time limits on visa applications that fall on a weekend. The appellant received the respondent’s application for a temporary student visa on a Monday and rejected it on the basis that the applicant must hold a temporary graduate visa, which for the respondent had expired on the Sunday immediately before. North J allowed the applicant’s appeal, holding that s 36(2) of the Act Interpretation Act 1901 (Cth), which provides that where an act ‘requires or allows a thing to be done’ and the ‘last day’ for doing it is a Saturday, a Sunday or a holiday, then the thing may be done on the next day that is not one of those days. Before the High Court the Minister contended that the sections in the Migration Act 1958 (Cth) relating to the application procedures do not impose a time limit or provide for a ‘last day’ for something to be done, but instead provide for particular legal consequences that follow depending on the status of the respondent at the time of the application.

The Court, by a 4:1 majority, allowed the appeal. The plurality (Bell, Keane and Gordon JJ) held that the Act did not impose a time limit either expressly or by necessary implication (at [25]). While North J and the respondents had relied on Zangzinchai v Milanta [1994] FCA 1361 (see at [11]ff),  which dealt with the predecessor wording of s 36(2) in the context of immigration decision review appeals, the plurality held that the 2011 amendments did not expand the scope of s 36(2) (at [20], see also [19]). Instead, those amendments, which substituted ‘require’ for ‘prescribed’ and broke up a single sentence into sub-paragraphs, did not, contrary to North J’s analysis, have any substantive effect on the operation of the provision and was merely aimed at making it more ‘”user friendly”‘ (at [20]). The explanatory memorandum notes accompanying the change did not provide any support to conclude that the amendments broadened the scope of s 36(2): at [22]. Consequently, where an Act ‘requires or allows a thing to be done’, expressly or by necessary implication, and the last day for doing it is a weekend day or public holiday, s 36(2) allows that the thing may be done on the next day that is not a Saturday, Sunday or holiday (at [24]). As applied here, no time limit was imposed on the making of an application for a 572 visa, and on the day that application was validly made, the respondent was not a holder of a 485 visa, and did not meet the criteria specified for the grant of a 572 visa (at [25]). While the last day on which the respondent could have applied was a Sunday, that does not engage s 36(2), which provides a rule on the time for the doing of a thing that an Act requires or allows to be done: ‘It does not otherwise alter the rights or obligations conferred or imposed by the Act’, and cannot be read as deeming something done at an earlier date: at [25]).

Gageler J agreed with the orders proposed by the plurality. His Honour emphasised that s 36(2) was a straightforward extension of time provision, applying to statutes that require or allow a thing to be done and extending the last day for doing that thing to the next day after a weekend or holiday (at [27]). After providing several illustrations of how the section operates (at [28]–[29]) and emphasising that it gives something done on the next day the same legal effect it would have had if the thing had been done within the period expressly required or allowed by the statute (at [30]), Gageler J noted that the respondent’s arguments effectively sought to make s 36(2) apply to his circumstances: this contention problematically conflated the thing allowed to be done by the respondent with the things required to be done by the Minister: at [32]. Whether the respondent had made the application on the Sunday, when he still held his 485 visa, or on the Monday, when that visa had expired, his making of a valid application had the same legal effect: the Minister would consider it under the relevant provisions, and criterion of holding a 485 visa could not be met, requiring the Minister to refuse to grant the visa (at [33]). ‘Section 36(2) was not engaged, and had no relevant operation’: at [33]. Gageler J also noted that, in his opinion, Zangzinchai was a different case as it related to the timing of an appeal to the Immigration Review Tribunal, rather than the criteria for the grant of a visa (at [34]).

Nettle J, in dissent, held that s 36 did operate to extend the application date to the Monday on which the respondent could make an application for a 572 visa that could be granted under the Migration Act. Nettle J stated that there was ‘some force’ in North J’s conclusion that the 2011 amendment substantially changed the meaning of s 36(2), noting, among other things that ‘prescription’ suggests a more explicit stipulation than the more general ‘require’ which replaced that term (see at [54]) and that the explanatory memorandum stated the amendment was ‘”intended to capture a broader range of situations”‘ (at [55]). But Nettle J held that it was unnecessary to decide this point, because even if the 2011 amendment did not alter the substantive effects of s 36(2), there were good reasons in this matter to depart from the reasoning in Zangzinchai on the application of s 36 to the 572 visa consideration provisions of the Migration Act. After reviewing several earlier authorities (see [58]), Nettle J drew from them (specifically Thomson v Les Harrison Contracting Co [1976] VR 238) a purposive principle that a time limitation section should not be artificially confined only to apply to sections that expressly use the term ‘the time limited’, but should apply also to ‘provisions which, not in terms or directly, but in substance or indirectly, limited the time in which something was to be done’: at [61]. As applied here (at [62]):

By allowing a non-resident to make an application for a visa of a particular class, and by providing that an application not be capable of grant under s 65 unless it satisfies the criteria prescribed by the Regulations (one of which was, in this case, that the applicant be the holder of a current Subclass 485 visa), ss 45 and 65 together ‘allow’ a non-citizen who is the holder of a current visa as required by the Regulations to make a visa application and indirectly limit the time in which that may be done to the period during which the applicant’s current visa remains in force.

Moreover, in argument the Minister did not confront the reasoning or precedent relied on by Nettle J here (at [63]). Nettle J then rejected the arguments that ss 45 and 65 would a deeming or fiction in making the applicant still a holder of a 485 visa that had expired (at [65]ff), rejected the Minister’s comparisons with other decisions on s 36(2)’s operation on bankruptcy and life insurance statutes (at [70]ff), and finally rejected the contention that the Court here should not depart from the approach in Zangzinchai as the 2011 amendments substantially enacted the construction adopted in that case, because the Zangzinchai approach ‘does not appear to be correct’ (at [76]ff).

Kumar v Minister for Immigration and Border Protection

The High Court has allowed an appeal against a decision the Federal Court of Australia on the extension of time limits on visa applications that fall on a weekend. The appellant received the respondent’s application for a temporary student visa on a Monday and rejected it on the basis that the applicant must hold a temporary graduate visa, which for the respondent had expired on the Sunday immediately before. North J allowed the applicant’s appeal, holding that s 36(2) of the Act Interpretation Act 1901 (Cth), which provides that where an act ‘requires or allows a thing to be done’ and the ‘last day’ for doing it is a Saturday, a Sunday or a holiday, then the thing may be done on the next day that is not one of those days. Before the High Court the Minister contended that the sections in the Migration Act 1958 (Cth) relating to the application procedures do not impose a time limit or provide for a ‘last day’ for something to be done, but instead provide for particular legal consequences that follow depending on the status of the respondent at the time of the application.

The Court, by a 4:1 majority, allowed the appeal. The plurality (Bell, Keane and Gordon JJ) held that the Act did not impose a time limit either expressly or by necessary implication (at [25]). While North J and the respondents had relied on Zangzinchai v Milanta [1994] FCA 1361 (see at [11]ff),  which dealt with the predecessor wording of s 36(2) in the context of immigration decision review appeals, the plurality held that the 2011 amendments did not expand the scope of s 36(2) (at [20], see also [19]). Instead, those amendments, which substituted ‘require’ for ‘prescribed’ and broke up a single sentence into sub-paragraphs, did not, contrary to North J’s analysis, have any substantive effect on the operation of the provision and was merely aimed at making it more ‘”user friendly”‘ (at [20]). The explanatory memorandum notes accompanying the change did not provide any support to conclude that the amendments broadened the scope of s 36(2): at [22]. Consequently, where an Act ‘requires or allows a thing to be done’, expressly or by necessary implication, and the last day for doing it is a weekend day or public holiday, s 36(2) allows that the thing may be done on the next day that is not a Saturday, Sunday or holiday (at [24]). As applied here, no time limit was imposed on the making of an application for a 572 visa, and on the day that application was validly made, the respondent was not a holder of a 485 visa, and did not meet the criteria specified for the grant of a 572 visa (at [25]). While the last day on which the respondent could have applied was a Sunday, that does not engage s 36(2), which provides a rule on the time for the doing of a thing that an Act requires or allows to be done: ‘It does not otherwise alter the rights or obligations conferred or imposed by the Act’, and cannot be read as deeming something done at an earlier date: at [25]).

Gageler J agreed with the orders proposed by the plurality. His Honour emphasised that s 36(2) was a straightforward extension of time provision, applying to statutes that require or allow a thing to be done and extending the last day for doing that thing to the next day after a weekend or holiday (at [27]). After providing several illustrations of how the section operates (at [28]–[29]) and emphasising that it gives something done on the next day the same legal effect it would have had if the thing had been done within the period expressly required or allowed by the statute (at [30]), Gageler J noted that the respondent’s arguments effectively sought to make s 36(2) apply to his circumstances: this contention problematically conflated the thing allowed to be done by the respondent with the things required to be done by the Minister: at [32]. Whether the respondent had made the application on the Sunday, when he still held his 485 visa, or on the Monday, when that visa had expired, his making of a valid application had the same legal effect: the Minister would consider it under the relevant provisions, and criterion of holding a 485 visa could not be met, requiring the Minister to refuse to grant the visa (at [33]). ‘Section 36(2) was not engaged, and had no relevant operation’: at [33]. Gageler J also noted that, in his opinion, Zangzinchai was a different case as it related to the timing of an appeal to the Immigration Review Tribunal, rather than the criteria for the grant of a visa (at [34]).

Nettle J, in dissent, held that s 36 did operate to extend the application date to the Monday on which the respondent could make an application for a 572 visa that could be granted under the Migration Act. Nettle J stated that there was ‘some force’ in North J’s conclusion that the 2011 amendment substantially changed the meaning of s 36(2), noting, among other things that ‘prescription’ suggests a more explicit stipulation than the more general ‘require’ which replaced that term (see at [54]) and that the explanatory memorandum stated the amendment was ‘”intended to capture a broader range of situations”‘ (at [55]). But Nettle J held that it was unnecessary to decide this point, because even if the 2011 amendment did not alter the substantive effects of s 36(2), there were good reasons in this matter to depart from the reasoning in Zangzinchai on the application of s 36 to the 572 visa consideration provisions of the Migration Act. After reviewing several earlier authorities (see [58]), Nettle J drew from them (specifically Thomson v Les Harrison Contracting Co [1976] VR 238) a purposive principle that a time limitation section should not be artificially confined only to apply to sections that expressly use the term ‘the time limited’, but should apply also to ‘provisions which, not in terms or directly, but in substance or indirectly, limited the time in which something was to be done’: at [61]. As applied here (at [62]):

By allowing a non-resident to make an application for a visa of a particular class, and by providing that an application not be capable of grant under s 65 unless it satisfies the criteria prescribed by the Regulations (one of which was, in this case, that the applicant be the holder of a current Subclass 485 visa), ss 45 and 65 together ‘allow’ a non-citizen who is the holder of a current visa as required by the Regulations to make a visa application and indirectly limit the time in which that may be done to the period during which the applicant’s current visa remains in force.

Moreover, in argument the Minister did not confront the reasoning or precedent relied on by Nettle J here (at [63]). Nettle J then rejected the arguments that ss 45 and 65 would a deeming or fiction in making the applicant still a holder of a 485 visa that had expired (at [65]ff), rejected the Minister’s comparisons with other decisions on s 36(2)’s operation on bankruptcy and life insurance statutes (at [70]ff), and finally rejected the contention that the Court here should not depart from the approach in Zangzinchai as the 2011 amendments substantially enacted the construction adopted in that case, because the Zangzinchai approach ‘does not appear to be correct’ (at [76]ff).

Kumar v Minister for Immigration and Border Protection

The High Court has allowed an appeal against a decision the Federal Court of Australia on the extension of time limits on visa applications that fall on a weekend. The appellant received the respondent’s application for a temporary student visa on a Monday and rejected it on the basis that the applicant must hold a temporary graduate visa, which for the respondent had expired on the Sunday immediately before. North J allowed the applicant’s appeal, holding that s 36(2) of the Act Interpretation Act 1901 (Cth), which provides that where an act ‘requires or allows a thing to be done’ and the ‘last day’ for doing it is a Saturday, a Sunday or a holiday, then the thing may be done on the next day that is not one of those days. Before the High Court the Minister contended that the sections in the Migration Act 1958 (Cth) relating to the application procedures do not impose a time limit or provide for a ‘last day’ for something to be done, but instead provide for particular legal consequences that follow depending on the status of the respondent at the time of the application.

The Court, by a 4:1 majority, allowed the appeal. The plurality (Bell, Keane and Gordon JJ) held that the Act did not impose a time limit either expressly or by necessary implication (at [25]). While North J and the respondents had relied on Zangzinchai v Milanta [1994] FCA 1361 (see at [11]ff),  which dealt with the predecessor wording of s 36(2) in the context of immigration decision review appeals, the plurality held that the 2011 amendments did not expand the scope of s 36(2) (at [20], see also [19]). Instead, those amendments, which substituted ‘require’ for ‘prescribed’ and broke up a single sentence into sub-paragraphs, did not, contrary to North J’s analysis, have any substantive effect on the operation of the provision and was merely aimed at making it more ‘”user friendly”‘ (at [20]). The explanatory memorandum notes accompanying the change did not provide any support to conclude that the amendments broadened the scope of s 36(2): at [22]. Consequently, where an Act ‘requires or allows a thing to be done’, expressly or by necessary implication, and the last day for doing it is a weekend day or public holiday, s 36(2) allows that the thing may be done on the next day that is not a Saturday, Sunday or holiday (at [24]). As applied here, no time limit was imposed on the making of an application for a 572 visa, and on the day that application was validly made, the respondent was not a holder of a 485 visa, and did not meet the criteria specified for the grant of a 572 visa (at [25]). While the last day on which the respondent could have applied was a Sunday, that does not engage s 36(2), which provides a rule on the time for the doing of a thing that an Act requires or allows to be done: ‘It does not otherwise alter the rights or obligations conferred or imposed by the Act’, and cannot be read as deeming something done at an earlier date: at [25]).

Gageler J agreed with the orders proposed by the plurality. His Honour emphasised that s 36(2) was a straightforward extension of time provision, applying to statutes that require or allow a thing to be done and extending the last day for doing that thing to the next day after a weekend or holiday (at [27]). After providing several illustrations of how the section operates (at [28]–[29]) and emphasising that it gives something done on the next day the same legal effect it would have had if the thing had been done within the period expressly required or allowed by the statute (at [30]), Gageler J noted that the respondent’s arguments effectively sought to make s 36(2) apply to his circumstances: this contention problematically conflated the thing allowed to be done by the respondent with the things required to be done by the Minister: at [32]. Whether the respondent had made the application on the Sunday, when he still held his 485 visa, or on the Monday, when that visa had expired, his making of a valid application had the same legal effect: the Minister would consider it under the relevant provisions, and criterion of holding a 485 visa could not be met, requiring the Minister to refuse to grant the visa (at [33]). ‘Section 36(2) was not engaged, and had no relevant operation’: at [33]. Gageler J also noted that, in his opinion, Zangzinchai was a different case as it related to the timing of an appeal to the Immigration Review Tribunal, rather than the criteria for the grant of a visa (at [34]).

Nettle J, in dissent, held that s 36 did operate to extend the application date to the Monday on which the respondent could make an application for a 572 visa that could be granted under the Migration Act. Nettle J stated that there was ‘some force’ in North J’s conclusion that the 2011 amendment substantially changed the meaning of s 36(2), noting, among other things that ‘prescription’ suggests a more explicit stipulation than the more general ‘require’ which replaced that term (see at [54]) and that the explanatory memorandum stated the amendment was ‘”intended to capture a broader range of situations”‘ (at [55]). But Nettle J held that it was unnecessary to decide this point, because even if the 2011 amendment did not alter the substantive effects of s 36(2), there were good reasons in this matter to depart from the reasoning in Zangzinchai on the application of s 36 to the 572 visa consideration provisions of the Migration Act. After reviewing several earlier authorities (see [58]), Nettle J drew from them (specifically Thomson v Les Harrison Contracting Co [1976] VR 238) a purposive principle that a time limitation section should not be artificially confined only to apply to sections that expressly use the term ‘the time limited’, but should apply also to ‘provisions which, not in terms or directly, but in substance or indirectly, limited the time in which something was to be done’: at [61]. As applied here (at [62]):

By allowing a non-resident to make an application for a visa of a particular class, and by providing that an application not be capable of grant under s 65 unless it satisfies the criteria prescribed by the Regulations (one of which was, in this case, that the applicant be the holder of a current Subclass 485 visa), ss 45 and 65 together ‘allow’ a non-citizen who is the holder of a current visa as required by the Regulations to make a visa application and indirectly limit the time in which that may be done to the period during which the applicant’s current visa remains in force.

Moreover, in argument the Minister did not confront the reasoning or precedent relied on by Nettle J here (at [63]). Nettle J then rejected the arguments that ss 45 and 65 would a deeming or fiction in making the applicant still a holder of a 485 visa that had expired (at [65]ff), rejected the Minister’s comparisons with other decisions on s 36(2)’s operation on bankruptcy and life insurance statutes (at [70]ff), and finally rejected the contention that the Court here should not depart from the approach in Zangzinchai as the 2011 amendments substantially enacted the construction adopted in that case, because the Zangzinchai approach ‘does not appear to be correct’ (at [76]ff).

Equity support still needed in disability and NESB backgrounds

Equity support still needed in disability and NESB backgrounds

A new study, funded by the National Centre for Student Equity in Higher Education at Curtin University and led by Dr Ian Li from the University of Western Australia, has confirmed that equity students are generally well-supported in their university study, although challenges remained, in particular for students with disability and from Non-English Speaking Backgrounds (NESB).

Equity groups have increasing access to higher education enrolment, but factors including health, finance and disposition towards study can contribute to the decision of disadvantaged students to drop out of university study. This study looks at the determinants of student satisfaction and academic outcomes at university, with a focus on equity group differences.

Background

The 2008 Bradley Review of Australian higher education identified the need to better support access and participation of disadvantaged individuals in higher education, with the aim of improving their socioeconomic outcomes through the provision and attainment of university study. The recommendations of the Bradley Review have had bipartisan support and have led to a number of initiatives within the higher education sector aimed at achieving the targets set out in the Bradley Review.

Over the past decade, participation in higher education by Australians from disadvantaged groups has been increasing. However, their degree completion rates still lag behind those of their fellow students from more privileged backgrounds. It is thus of interest to explore the differences in university academic outcomes for students from disadvantaged backgrounds, as well as the determinants of those differences. In addition, it is of interest to examine whether there are differences in student experience at university for disadvantaged groups, and how student experience contributes to academic outcomes.

Objectives

This study investigated the determinants of student satisfaction in Australian higher education, with a focus on students in various equity groups. Furthermore, the study examined the determinants of three key academic outcomes:

  • being at risk of dropout
  • actual dropout from university studies
  • academic performance, as measured by students’ Weighted Average Marks (WAM).

Read more here.

Media release.

Posted 8 March 2017 Posted in General, Indigenous, Low SES, Regional

Equity support still needed in disability and NESB backgrounds

Equity support still needed in disability and NESB backgrounds

A new study, funded by the National Centre for Student Equity in Higher Education at Curtin University and led by Dr Ian Li from the University of Western Australia, has confirmed that equity students are generally well-supported in their university study, although challenges remained, in particular for students with disability and from Non-English Speaking Backgrounds (NESB).

Equity groups have increasing access to higher education enrolment, but factors including health, finance and disposition towards study can contribute to the decision of disadvantaged students to drop out of university study. This study looks at the determinants of student satisfaction and academic outcomes at university, with a focus on equity group differences.

Background

The 2008 Bradley Review of Australian higher education identified the need to better support access and participation of disadvantaged individuals in higher education, with the aim of improving their socioeconomic outcomes through the provision and attainment of university study. The recommendations of the Bradley Review have had bipartisan support and have led to a number of initiatives within the higher education sector aimed at achieving the targets set out in the Bradley Review.

Over the past decade, participation in higher education by Australians from disadvantaged groups has been increasing. However, their degree completion rates still lag behind those of their fellow students from more privileged backgrounds. It is thus of interest to explore the differences in university academic outcomes for students from disadvantaged backgrounds, as well as the determinants of those differences. In addition, it is of interest to examine whether there are differences in student experience at university for disadvantaged groups, and how student experience contributes to academic outcomes.

Objectives

This study investigated the determinants of student satisfaction in Australian higher education, with a focus on students in various equity groups. Furthermore, the study examined the determinants of three key academic outcomes:

  • being at risk of dropout
  • actual dropout from university studies
  • academic performance, as measured by students’ Weighted Average Marks (WAM).

Read more here.

Media release.

Posted 8 March 2017 Posted in General, Indigenous, Low SES, Regional