Kader v DPP
[2026] ACTCA 23|Court of Appeal (ACT)|2026-08-07
Before: White J
The court held that the ACT fresh-evidence appeal scheme can apply even where a person was convicted after pleading guilty. But Kader’s ex-wife’s affidavit did not meet the statutory test. The evidence could have been presented earlier with reasonable diligence, and it was not sufficiently reliable or probative to justify reopening the conviction. The court also considered that Kader had pleaded guilty, declined an opportunity to withdraw the plea, and was unlikely to obtain a better result if resentenced. Leave was refused.
APPEAL – PRACTICE AND PROCEDURE – Leave to appeal – application to appeal against conviction on basis of fresh and compelling evidence – where applicant pleaded guilty to perjury – where sentencing judge found perjury extended to comments in addition to those for which applicant entered plea of guilty – where purported fresh evidence is affidavit tendered in unrelated proceedings – consideration of interests of justice – whether appeal the appropriate course in the circumstancesSTATUTORY INTERPRETATION – CRIMINAL APPEAL PROVISIONS – Part 8AB of the Supreme Court Act 1933 (ACT) – application for leave to appeal against conviction on basis of fresh and compelling evidence – meaning of “fresh evidence” – meaning of “compelling evidence” – meaning of “convicted person” – whether Part 8AB applicable to convictions following guilty pleas
Shearman v Classic Constructions (Aust) Pty Ltd
[2026] ACTCA 24|Court of Appeal (ACT)|2026-08-07
Before: Mossop J
The ACT Court of Appeal refused the Shearmans permission to appeal directions about the next steps in their ongoing building-debt case. The directions were procedural and discretionary, and the judge found no sufficiently demonstrated error in the primary judge’s decision. The Court considered that new medical or other evidence could be taken to the primary judge in support of changing the timetable, while relevant errors could be raised after the final decision if they affected the result. It also considered that an appeal could not be heard before the deadlines, so a stay would effectively grant the practical outcome sought. Although Ms Shearman asked for an adjournment because she was receiving mental health treatment, the Court concluded that the circumstances did not make it unfair to proceed. The application was dismissed with costs.
PRACTICE AND PROCEDURE – APPEAL – Leave to appeal from interlocutory judgment – where orders sought to be appealed were discretionary directions – where no House v The King errors articulated – where orders sought to be appealed could be raised on appeal from a final decision or through application to vary orders heard by primary judge – where granting leave to appeal would have the practical effect of deciding the appeal – application dismissed with costs
Plaintiff M98/2025 v Minister for Immigration and Citizenship
[2026] HCA 26|High Court of Australia|2026-08-05
Before: Gageler CJ, Jagot, Beech-Jones JJ
The High Court dismissed the plaintiff's challenge to the refusal of his protection visa. It assumed in his favour that he had raised not being able to obtain gender-affirming surgery in Malaysia as a harm he would face. Even on that assumption, the evidence did not show that the inability to obtain surgery by itself met the statutory definitions of serious or significant harm. The Court also found that the delegate had considered the relevant DFAT report about loan sharks and was not required to assess a fear based on transgender status that the plaintiff had not raised. Because none of the proposed errors succeeded, the Court refused extra time to bring the case and ordered the plaintiff to pay the Minister's costs.
Administrative law – Judicial review – Visas – Where plaintiff applied for protection (subclass 866) visa – Where evidence plaintiff assigned female gender at birth but identifies as male – Where plaintiff wished to undergo gender-affirming surgery – Where delegate erroneously construed plaintiff's answers in interviews as stating he no longer wished to undertake gender-affirming surgery – Where plaintiff did not assert he feared harm by reason of transgender status – Whether delegate committed jurisdictional error – Whether inability to access gender-affirming surgery in country of origin of itself capable of amounting to "serious harm" or "significant harm" – Whether failure to consider report by Department of Foreign Affairs and Trade – Whether delegate's obligation extends to addressing a claim not identified.
Words and phrases – "claims for protection", "complementary protection", "constitutional or other writ", "country information", "cruel or inhuman treatment or punishment", "degrading treatment or punishment", "denial of access to basic services", "failure to consider", "gender-affirming surgery", "gender identity", "illogical, irrational or unreasonable", "materiality", "protection obligations", "protection visa", "real risk", "serious harm", "significant harm", "standards of civil societies", "transgender status", "well-founded fear of persecution".
High Court Rules 2004 (Cth), rr 4.02, 25.09.3.
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5LA, 36, 411, 412, 474, 476, 476A, 476B, 486A, 499.
Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families and Urban Housing as delegate of the Minister for the Environment
[2026] HCA 23|High Court of Australia|2026-08-05
Before: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
The High Court set aside a 30-year groundwater licence for Singleton Station. The law had changed before the delegate Minister made the review decision: a licence longer than ten years now required the decision-maker to be satisfied that special circumstances justified the longer period. The materials and reasons showed that the delegate Minister had not addressed that requirement. The Court also held that MAC should have been given a chance to comment before Fortune was assigned responsibility for preparing the cultural-values assessment under CP 10. The Court rejected MAC’s separate argument that the Minister had failed to take Aboriginal cultural values into account, because the reasons showed that the relevant water allocation plan and its objective had been considered.
Administrative law – Judicial review – Water extraction licence – Where 30-year water extraction licence granted under s 60 of Water Act 1992 (NT) ("Water Act") – Where Minister required to be satisfied under s 60(4)(b) of Water Act that special circumstances justified grant of licence for period exceeding ten years – Where Minister required to take into account protection of Aboriginal cultural values associated with water – Where condition of licence was that licensee develop and submit Aboriginal cultural values impact assessment – Whether Minister satisfied that special circumstances justified grant of licence for period exceeding ten years – Whether Minister failed to take into account mandatory relevant consideration of Aboriginal cultural values – Whether Minister failed to accord procedural fairness to prescribed body corporate for relevant native title holders.
Words and phrases – "Aboriginal cultural values", "Aboriginal cultural values impact assessment", "adverse conclusion", "condition", "condition precedent", "cultural and biodiversity values", "discharge of statutory function", "groundwater", "groundwater dependent ecosystems", "interpretation of reasons", "judicial review", "jurisdictional error", "jurisdictional fact", "mandatory relevant consideration", "must take into account", "native title holders", "procedural fairness", "requirement of reasons", "requirement to manifest satisfaction", "review panel", "satisfied", "special circumstances", "state of mind", "state of satisfaction", "water allocation plan", "water extraction licence", "water extraction licence decision".
Water Act 1992 (NT), ss 30, 60, 71A-71E, 90.
Potter (A Pseudonym) v The King
[2026] HCA 25|High Court of Australia|2026-08-05
Before: Gageler CJ, Gordon, Steward, Jagot, Beech-Jones JJ
The High Court held that the complainant’s covert recording was covered by an exception to South Australia’s general prohibition on recording a private conversation. The relevant interest was not simply her wish to end the relationship. It was her interest in bodily autonomy and protection from the real risk of being raped again. In the circumstances, recording the appellant’s admission was an appropriate way to protect that interest. The recording could therefore be used at trial, and the appeal was dismissed.
Criminal practice – Admissibility of evidence – Sexual offences – Where complainant was appellant's wife – Where complainant made covert recording without appellant's knowledge – Where appellant admitted to previously sexually assaulting complainant while she was asleep in covert recording – Where complainant made covert recording to remind herself not to resume relationship with appellant and risk being further sexually assaulted – Whether covert recording admissible – Whether covert recording reasonably necessary for protection of complainant's lawful interests.
Words and phrases – "bodily autonomy", "bodily integrity", "covert recording", "discretionary exclusion", "evidence", "lawful interests", "legal right, title, duty or liability", "legitimate interests", "listening device", "personal privacy", "private conversation", "protection", "qualified privilege", "reasonably appropriate and adapted", "reasonably necessary", "surveillance device", "unlawfully obtained".
Listening and Surveillance Devices Act 1972 (SA), ss 3, 4, 7.
Surveillance Devices Act 2016 (SA), ss 3, 4, 6, 9, 12.
Plaintiff S32/2026 v Minister for Immigration and Citizenship
[2026] HCA 27|High Court of Australia|2026-08-05
Before: Gordon, Steward, Beech-Jones JJ
The High Court dismissed the plaintiff's application because he challenged the original visa refusal directly instead of using the available review route concerning the Tribunal's decision to end his merits review. The Court also found that the delegate had considered the 2024 DFAT report and that the overall reasoning, including the plaintiff's personal circumstances, did not establish jurisdictional error. Because the application was abusive and lacked merit, there was no basis to extend the filing time. The order was dismissal with costs.
Administrative law – Judicial review − Where delegate refused application for Protection (Class XA) (Subclass 866) visa ("Visa Decision") − Where delegate considered country information prepared by Department of Foreign Affairs and Trade − Where delegate concluded plaintiff could obtain protection from authority of Nepal − Where plaintiff sought merits review of Visa Decision in Administrative Review Tribunal ("Tribunal") − Where Tribunal dismissed merits review application due to plaintiff's non‑appearance − Where plaintiff applied to Tribunal to reinstate merits review application − Where Tribunal confirmed dismissal of merits review application − Where plaintiff applied to High Court for constitutional or other writ in respect of Visa Decision − Whether application abuse of process − Whether Visa Decision affected by jurisdictional error − Whether extension of time should be granted.
Words and phrases – "abuse of process", "constitutional writ", "country information", "extension of time", "illogically", "irrationally", "judicial review", "jurisdictional error", "mandatory obligation", "merits review", "protection finding", "protection visa", "significant harm", "unreasonably".
Administrative Review Tribunal Act 2024 (Cth), ss 99, 102.
Migration Act 1958 (Cth), ss 36(2B)(b), 486A, 499.
The King v HCZ
[2026] HCA 24|High Court of Australia|2026-08-05
Before: Gageler CJ, Edelman, Gleeson, Jagot, Beech-Jones JJ
The High Court held that appeal courts must show restraint when reviewing a sentencing judge's decision about whether a child should serve less than the default 70 per cent of a detention sentence before release. The sentencing judge considered HCZ's mitigating circumstances but concluded that they did not amount to special circumstances. Because that conclusion was one of the outcomes reasonably open on the facts, the Court of Appeal could not replace it with its own view. This is general legal information, not legal advice. Zoe can make mistakes, and a qualified Australian lawyer should check this information before anyone acts on it or relies on it.
Criminal law – Sentence – Child offender – Where offender committed offences including murder – Where murder "a particularly heinous offence" under s 176(3)(b)(ii) of Youth Justice Act 1992 (Qld) – Where offender sentenced to term of detention – Where s 227 of Youth Justice Act prevented release until offender had served 70 per cent of that term unless sentencing judge considered that "special circumstances" exist – Where sentencing judge concluded that "special circumstances" did not exist – Where appellate court held that sentencing judge allowed seriousness of offending to overwhelm mitigating factors – Whether open to appellate court to interfere with sentencing judge's conclusion that "special circumstances" did not exist.
Words and phrases – "ability to rehabilitate", "appellate review", "correctness standard", "deprived upbringing", "discretion", "judicial restraint", "manifestly excessive", "mitigating factors", "murder", "open-ended evaluative criteria", "particularly heinous offence", "period of detention", "personal circumstances", "pleas of guilty", "range of outcomes", "sentencing", "seriousness of the offending", "special circumstances", "standard of appellate review", "statutory default", "statutory interpretation", "unreasonable or plainly unjust".
Youth Justice Act 1992 (Qld), Pt 7, Sch 4.