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Constitution Act 1902

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New South Wales Constitution
Overview
JurisdictionNew South Wales
Ratified18 August 1902 (1902-08-18)
Date effective18 August 1902 (1902-08-18)
SystemState Government
Government structure
Branches
Chambers
ExecutiveSee New South Wales Government
JudiciarySee Judiciary of Australia
History
Amendments97 (89 Parliamentary Amendments and 8 Constitutional Referendums)
Last amendedGovernment Sector Employment and Other Legislation Amendment Act 2024
CitationConstitution Act 1902 (NSW)
SignatoriesGovernor Harry Rawson
SupersedesConstitution Act 1855 (NSW)

The Constitution of New South Wales is composed of both unwritten and written elements that set out the structure of Government in the State of New South Wales. While the most important parts are codified in the Constitution Act 1902, major parts of the broader constitution can also be found in:

The Constitution Act 1902 sets out many of the basic principles of the Government of New South Wales, and provides for an executive, legislative and judicial branch. However, unlike the Federal Constitution, the courts have found this does not mean there is a formal separation of powers at the state level.[2] It can also be amended through ordinary Acts of Parliament, however some sections can only be amended through a referendum of NSW voters.[3]

History

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In 1853 the New South Wales Legislative Council, then a unicameral body, with a hybrid of appointed and elected members, passed the New South Wales Constitution Bill in 1853, also referred to as 17 Vic. No 41, which was reserved for the Queen's assent, which the Queen did not give. Instead the Imperial Parliament at Westminster passed what is referred to as the Constitution Statute 1855 (Imp) which included a modified bill as schedule.[4] It was this modified bill to which the Queen assented.[1] The 1902 Act repealed all or part of eight previous Acts.[5]

Act Reference Extent Ref
New Constitution Act 1853 No 41a 17 Vic. No. 41.[a] unrepealed portion [6]
Civil List Increase Act 1857 No 14a 20 Vic. No. 18 The whole [7]
Triennial Parliaments Act 1874 No 2a 37 Vic. No. 7 The whole [8]
Executive Councillors (Functions Substitution) Act No 27a 44 Vic. No. 6 The whole [9]
Constitution Act Amendment Act of 1884 No 3a 47 Vic. No. 5 The whole [10]
Constitution Act Amendment Act of 1890 No 1a 54 Vic. No. 1 The whole [11]
Governor's Salary Act 1901 No 40 Act No 40, 1901 Section 2, subsection (4) [12]

Document structure and text

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The Act originally consisted of six parts,[5] to which an additional five parts have since been added.[13]

  • Part 1 Preliminary.
  • Part 2 Powers of the Legislature.
  • Part 2A The Governor, added in 1987.
  • Part 3 The Legislative Council and Legislative Assembly.
  • Part 4 The Executive.
  • Part 4A Parliamentary Secretaries, added in 1975.
  • Part 5 The Consolidated Fund.
  • Part 6 Officers and staff.
  • Part 7 Administrative arrangements, added in 1984.
  • Part 8 Local government, added in 1986.
  • Part 9 The judiciary, added in 1992.
  • Part 10 Public ownership of Sydney Water Corporation and Hunter Water Corporation, added in 2023.

Alterations to the Constitution

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By parliament

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The Act as made in 1902 was an Act of the New South Wales Parliament. In contrast to the Constitution of Australia it was not approved by a referendum and did not contain any provision requiring a referendum to alter it. In 1929 the parliament passed an amendment to the Constitution Act which inserted section 7A, requiring a referendum before the Legislative Council could be abolished.[14] In 1930 Labor MLCs put forward two bills, one to repeal section 7A, the other to abolish the Council. Believing that a referendum was necessary before the bills could become law, the Legislative Council permitted the bills to pass without a division on 10 December. The validity of section 7A and the inability to repeal the section without a referendum were upheld by the Supreme Court on 23 December 1930,[15] a majority of the High Court on 16 March 1931,[16] and the Judicial Committee of the Privy Council on 31 May 1932.[17]

As of December 2024, the Constitution Act 1902 has been amended through Parliament by the following Acts:[18]

Act Ref
Parliamentary Elections Act 1906 [19]
Parliamentary Representatives Allowance Act 1912 [20]
Parliamentary Representatives Allowance Act 1912 [21]
Parliamentary Electorates and Elections Act 1912 [22]
Parliamentary Representatives Allowance and Ministers' Salaries (Amendment) Act 1920 [23]
Parliamentary Allowances and Salaries Act 1922 [24]
Parliamentary Allowances and Salaries Act 1925 [25]
Constitution (Amendment) Act 1925[b] [26]
Audit (Amendment) Act 1929 [27]
Constitution (Legislative Council) Amendment Act 1929 [28]
Parliamentary Allowances and Salaries Act 1930 [29]
Parliamentary Allowances and Salaries Act 1932 [30]
Constitution Amendment (Legislative Council) Act, 1932[c] [31]
Demise of the Crown (Amendment) Act 1936 [32]
Parliamentary Allowances and Salaries Act 1938 [33]
Parliamentary Allowances and Salaries Act 1947 [34]
Constitution Amendment (Legislative Council Members Allowances) Act 1948 [35]
Parliamentary Allowances and Salaries Act 1951 [36]
Parliamentary Allowances and Salaries Act 1956 [37]
Parliamentary Allowances and Salaries Act 1959 [38]
Constitution (Amendment) Act 1962 [39]
Parliamentary Allowances and Salaries (Amendment) Act 1963 [40]
Decimal Currency Act 1965 [41]
Parliamentary Allowances and Salaries (Amendment) Act 1966 [42]
Constitution (Amendment) Act 1968 [43]
Parliamentary Allowances and Salaries (Amendment) Act 1971 [44]
Reprints Act 1972 [45]
Parliamentary Allowances and Salaries (Amendment) Act 1974 [46]
Parliamentary Allowances and Salaries (Amendment) Act 1975 [47]
Parliamentary Remuneration Tribunal Act 1975 [48]
Constitution and Other Acts (Amendment) Act 1975 [49]
Constitution (Ministers of the Crown) Amendment Act 1976 [50]
Constitution (Amendment) Act 1978 [51]
Constitution and Parliamentary Electorates and Elections (Amendment) Act 1978 [52]
Constitution (Amendment) Act 1979 [53]
Constitution (Public Service) Amendment Act 1979 [54]
Constitution (Amendment) Act 1980 [55]
Constitution (Legislative Assembly) Amendment Act 1981[d] [56]
Constitution (Disclosures by Members) Amendment Act 1981[d] [57]
Constitution (Consolidated Fund) Amendment Act 1982 [58]
Miscellaneous Acts (Public Finance and Audit) Repeal and Amendment Act 1983 [59]
Constitution (Enrolment of Acts) Amendment Act 1984 [60]
Statute Law (Miscellaneous Amendments) Act 1984 [61]
Statute Law (Miscellaneous Provisions) Act 1986 [62]
Constitution (Amendment) Act 1986 [63]
Constitution (Local Government) Amendment Act 1986 [64]
Statute Law (Miscellaneous Provisions) Act (No 1) 1987 [65]
Constitution (Amendment) Act 1987 [66]
Constitution (Parliamentary Secretaries) Amendment Act 1988 [67]
Constitution (Governor's Salary) Amendment Act 1988 [68]
Constitution (Legislative Assembly) Amendment Act 1990 [69]
Constitution and Parliamentary Electorates and Elections (Amendment) Act 1990 [70]
Statute Law (Miscellaneous Provisions) Act 1991 [71]
Constitution (Legislative Council) Amendment Act 1991 [72]
Constitution (Legislative Council) Further Amendment Act 1991 [73]
Constitution (Amendment) Act 1992 [74]
Constitution (Fixed Term Parliaments) Amendment Act 1993[e] [75]
Constitution (Entrenchment) Amendment Act 1992[e] [76]
Public Sector Management Amendment Act 1995 [77]
Industrial Relations Act 1996 [78]
Constitution and Parliamentary Electorates and Elections Amendment Act 1997 [79]
Statute Law (Miscellaneous Provisions) Act 1999 [80]
Crimes Legislation Amendment (Sentencing) Act 1999 [81]
Constitution Amendment Act 2000 [82]
Constitution Amendment (Governor's Salary) Act 2003 [83]
Courts Legislation Amendment Act 2005 [84]
Constitution Amendment (Pledge of Loyalty) Act 2006 [85]
Constitution Amendment (Governor) Act 2006 [86]
Statute Law (Miscellaneous Provisions) Act 2007 [87]
Constitution Amendment (Speaker) Act 2007 [88]
Miscellaneous Acts (Local Court) Amendment Act 2007 [89]
Statute Law (Miscellaneous Provisions) Act (No 2) 2008 [90]
Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 [91]
Parliamentary Remuneration Amendment (Salary Packaging) Act 2009 [92]
Constitution Amendment (Lieutenant-Governor) Act 2009 [93]
Constitution Amendment (Recognition of Aboriginal People) Act 2010 [94]
Constitution Amendment (Prorogation of Parliament) Act 2011 [95]
Constitution Amendment (Restoration of Oaths of Allegiance) Act 2012 [96]
Government Sector Employment Act 2013 [97]
Statute Law (Miscellaneous Provisions) Act 2014 [98]
Constitution Amendment (Parliamentary Presiding Officers) Act 2014 [99]
Government Sector Employment Legislation Amendment Act 2016 [100]
Crown Land Legislation Amendment Act 2017 [101]
Electoral Act 2017 [102]
COVID-19 Legislation Amendment (Emergency Measures) Act 2020 [103]
COVID-19 Legislation Amendment (Stronger Communities and Health) Act 2021 [104]
COVID-19 and Other Legislation Amendment (Regulatory Reforms) Act 2022 [105]
Constitution Amendment (Virtual Attendance) Act 2022 [106]
Constitution Amendment (Appointment of Lieutenant-Governor and Administrator) Act 2022 [107]
Integrity Legislation Amendment Act 2022 [108]
Constitution Amendment (Sydney Water and Hunter Water) Act 2023 [109]
Constitution Amendment (Executive Council) Act 2024 [110]
Government Sector Employment and Other Legislation Amendment Act 2024 [111]

Referendums

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There have been 18 referendums in New South Wales, 8 of which concerned proposals to amend the New South Wales Constitution, half of which concerned the Legislative Council. The list does not include referendums that did not involve changes to the NSW constitution, such as the 1898 and 1899 referendums on the proposed constitution of Australia, the 1903 referendum on the number of Members of the Legislative Assembly and the 5 referendums on the sale of alcohol.[112]

Results of referendums
Year # Name Yes No Ref
1933 4 Reform the Legislative Council 51.47 48.53 [113]
1961 7 Abolish the Legislative Council 42.42 57.58 [114]
1978 11 Election of Legislative Council 84.81 15.19 [115]
1981 12 4 year terms 69.04 30.96 [116]
13 Disclosure of pecuniary interests 86.01 13.99 [116]
1991 14 Reduce size of Legislative Council 57.73 42.27 [117]
1995 15 Fixed terms of parliament 75.48 24.52 [118]
16 Judicial independence 65.90 34.10 [118]

Effect of the Constitution of Australia

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The Constitution of Australia sets up the Commonwealth of Australia as a federation, with limited specific powers conferred on the Federal Parliament. The relationship between the states and the Commonwealth are dealt with in chapter V, including section 109 which provides that state laws are invalid to the extent of any inconsistency with federal laws. For the first two decades, the High Court preserved much of the financial and political independence of the states by adopting the reserved state powers and the implied inter-governmental immunities doctrine. These doctrines protected both the Commonwealth and the states from legislative or executive actions which "would fetter, control, or interfere with, the free exercise" of the legislative or executive power of the other.[119][120][121] These doctrines were subsequently rejected by the court in the 1920 Engineers' Case[122] after the composition of the court changed.

The High Court has held that the structure and text of the Constitution of Australia is such that the it protects the independence of the State Supreme Courts and a state parliament cannot assign powers that are incompatible with that independence,[123] nor prevent State Supreme Courts from issuing prerogative relief for jurisdictional error.[124]

See also

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Notes

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  1. ^ Refers to the 17th year of Queen Victoria's reign, commencing on 20 June 1837, and the 41st Act passed after 20 June 1853.
  2. ^ Took effect in 1926
  3. ^ Act received Royal Assent in 1933.
  4. ^ a b Act received Royal Assent in 1982 following referendum.
  5. ^ a b Act received Royal Assent in 1995 following referendum.

References

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  1. ^ a b Twomey, Anne (29 October 2004). The Constitution of New South Wales. the Federation Press. pp. 25, 18. ISBN 9781862875166. Retrieved 12 January 2024.
  2. ^ R v Lydon; Ex Party Cessnock Collieries Ltd [1960] HCA 19, 103 CLR 15 (6 April 1960), High Court.
  3. ^ "The Constitution of New South Wales". Parliament.nsw.gov.au. Archived from the original on 14 December 2024. Retrieved 15 January 2019.
  4. ^ New South Wales Constitution Act 1855 (18 & 19 Vict. c. 54 (Imp)), sch 1.
  5. ^ a b Constitution Act, 1902 (NSW)
  6. ^ New Constitution Act 1853 No14a (NSW)
  7. ^ Civil List Increase Act 1857 No 14a (NSW)
  8. ^ Triennial Parliaments Act 1874 No 2a (NSW)
  9. ^ Executive Councillors (Functions Substitution) Act (NSW)
  10. ^ Constitution Act Amendment Act of 1881 (NSW)
  11. ^ Constitution Act Amendment Act of 1890 (NSW)
  12. ^ Governor's Salary Act, 1901 (NSW)
  13. ^ Constitution Act 1902 (NSW)
  14. ^ Constitution (Legislative Council) Amendment Act, 1929 (NSW)
  15. ^ Trethowan v Peden [1930] NSWStRp 90, (1930) 31 SR (NSW) 183 (23 December 1930), Supreme Court (Full Court).
  16. ^ Attorney-General (New South Wales) v Trethowan [1931] HCA 3, (1931) 44 CLR 394, High Court.
  17. ^ Attorney-General (New South Wales) v Trethowan [1932] UKPC 1, [1932] AC 526; [1932] UKPCHCA 1, (1932) 47 CLR 97, Privy Council (on appeal from Australia)
  18. ^ CONSTITUTION ACT 1902 - As at 1 July 2024 - Act 32 of 1902 - NOTES (NSW)
  19. ^ Parliamentary Elections Act, 1906 (NSW)
  20. ^ Ministers' Salaries Act, 1907 (NSW)
  21. ^ Parliamentary Representatives Allowance Act, 1912 (NSW)
  22. ^ Parliamentary Electorates and Elections Act 1912 (NSW)
  23. ^ Parliamentary Representatives Allowance and Ministers' Salaries (Amendment) Act, 1920 (NSW)
  24. ^ Parliamentary Allowances and Salaries Act, 1922 (NSW)
  25. ^ Parliamentary Allowances and Salaries Act, 1925 (NSW)
  26. ^ Constitution (Amendment) Act, 1925 (NSW)
  27. ^ Audit (Amendment) Act, 1929 (NSW)
  28. ^ Constitution (Legislative Council) Amendment Act, 1929 (NSW)
  29. ^ Parliamentary Allowances and Salaries Act, 1930 (NSW)
  30. ^ Parliamentary Allowances and Salaries Act, 1932 (NSW)
  31. ^ Constitution Amendment (Legislative Council) Act, 1932 (NSW)
  32. ^ Demise of the Crown (Amendment) Act, 1936 (NSW)
  33. ^ Parliamentary Allowances and Salaries Act, 1938 (NSW)
  34. ^ Parliamentary Allowances and Salaries Act, 1947 (NSW)
  35. ^ Constitution Amendment (Legislative Council Members Allowances) Act, 1948 (NSW)
  36. ^ Parliamentary Allowances and Salaries Act, 1951 (NSW)
  37. ^ Parliamentary Allowances and Salaries Act, 1956 (NSW)
  38. ^ Parliamentary Allowances and Salaries Act, 1959 (NSW)
  39. ^ Constitution (Amendment) Act, 1962 (NSW)
  40. ^ Parliamentary Allowances and Salaries (Amendment) Act, 1963 (NSW)
  41. ^ Decimal Currency Act, 1965 (NSW)
  42. ^ Parliamentary Allowances and Salaries (Amendment) Act, 1966 (NSW)
  43. ^ Constitution (Amendment) Act, 1968 (NSW)
  44. ^ Parliamentary Allowances and Salaries (Amendment) Act, 1971 (NSW)
  45. ^ Reprints Act, 1972 (NSW)
  46. ^ Parliamentary Allowances and Salaries (Amendment) Act, 1974 (NSW)
  47. ^ Parliamentary Allowances and Salaries (Amendment) Act, 1975 (NSW)
  48. ^ Parliamentary Remuneration Tribunal Act, 1975 (NSW)
  49. ^ Constitution and Other Acts (Amendment) Act, 1975 (NSW)
  50. ^ Constitution (Ministers of the Crown) Amendment Act, 1976 (NSW)
  51. ^ Constitution (Amendment) Act, 1978 (NSW)
  52. ^ Constitution and Parliamentary Electorates and Elections (Amendment) Act, 1978 (NSW)
  53. ^ Constitution (Amendment) Act, 1979 (NSW)
  54. ^ Constitution (Public Service) Amendment Act, 1979 (NSW)
  55. ^ Constitution (Amendment) Act, 1980 (NSW)
  56. ^ Constitution (Legislative Assembly) Amendment Act, 1981 (NSW)
  57. ^ Constitution (Disclosures by Members) Amendment Act, 1981 (NSW)
  58. ^ Constitution (Consolidated Fund) Amendment Act, 1982 (NSW)
  59. ^ Miscellaneous Acts (Public Finance and Audit) Repeal and Amendment Act, 1983 (NSW)
  60. ^ Constitution (Enrolment of Acts) Amendment Act, 1984 (NSW)
  61. ^ Statute Law (Miscellaneous Amendments) Act, 1984 (NSW)
  62. ^ Statute Law (Miscellaneous Provisions) Act 1986 (NSW)
  63. ^ Constitution (Amendment) Act 1986 (NSW)
  64. ^ Constitution (Local Government) Amendment Act 1986 (NSW)
  65. ^ Statute Law (Miscellaneous Provisions) Act (No 1) 1987 (NSW)
  66. ^ Constitution (Amendment) Act 1987 (NSW)
  67. ^ Constitution (Parliamentary Secretaries) Amendment Act 1988 (NSW)
  68. ^ Constitution (Governor's Salary) Amendment Act 1988 (NSW)
  69. ^ Constitution (Legislative Assembly) Amendment Act 1990 (NSW)
  70. ^ Constitution and Parliamentary Electorates and Elections (Amendment) Act 1990 (NSW)
  71. ^ Statute Law (Miscellaneous Provisions) Act 1991 (NSW)
  72. ^ Constitution (Legislative Council) Amendment Act 1991 (NSW)
  73. ^ Constitution (Legislative Council) Further Amendment Act 1991 (NSW)
  74. ^ Constitution (Amendment) Act 1992 (NSW)
  75. ^ Constitution (Fixed Term Parliaments) Amendment Act 1993 (NSW)
  76. ^ Constitution (Entrenchment) Amendment Act 1992 (NSW)
  77. ^ Public Sector Management Amendment Act 1995 (NSW)
  78. ^ Industrial Relations Act 1996 (NSW)
  79. ^ Constitution and Parliamentary Electorates and Elections Amendment Act 1997 (NSW)
  80. ^ Statute Law (Miscellaneous Provisions) Act 1999 (NSW)
  81. ^ Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
  82. ^ Constitution Amendment Act 2000 (NSW)
  83. ^ Constitution Amendment (Governor's Salary) Act 2003 (NSW)
  84. ^ Courts Legislation Amendment Act 2005 (NSW)
  85. ^ Constitution Amendment (Pledge of Loyalty) Act 2006 (NSW)
  86. ^ Constitution Amendment (Governor) Act 2006 (NSW)
  87. ^ Statute Law (Miscellaneous Provisions) Act 2007 (NSW)
  88. ^ Constitution Amendment (Speaker) Act 2007 (NSW)
  89. ^ Miscellaneous Acts (Local Court) Amendment Act 2007 (NSW)
  90. ^
  91. ^ Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (NSW)
  92. ^ Parliamentary Remuneration Amendment (Salary Packaging) Act 2009 (NSW)
  93. ^ Constitution Amendment (Lieutenant-Governor) Act 2009 (NSW)
  94. ^ Constitution Amendment (Recognition of Aboriginal People) Act 2010 (NSW)
  95. ^ Constitution Amendment (Prorogation of Parliament) Act 2011 (NSW)
  96. ^ Constitution Amendment (Restoration of Oaths of Allegiance) Act 2012 (NSW)
  97. ^ Government Sector Employment Act 2013 (NSW)
  98. ^
  99. ^ Constitution Amendment (Parliamentary Presiding Officers) Act 2014 (NSW)
  100. ^ Government Sector Employment Legislation Amendment Act 2016 (NSW)
  101. ^ Crown Land Legislation Amendment Act 2017 (NSW)
  102. ^ Electoral Act 2017 (NSW)
  103. ^ COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)
  104. ^ COVID-19 Legislation Amendment (Stronger Communities and Health) Act 2021 (NSW)
  105. ^ COVID-19 and Other Legislation Amendment (Regulatory Reforms) Act 2022 (NSW)
  106. ^ Constitution Amendment (Virtual Attendance) Act 2022 (NSW)
  107. ^ Constitution Amendment (Appointment of Lieutenant-Governor and Administrator) Act 2022 (NSW)
  108. ^ Integrity Legislation Amendment Act 2022 (NSW)
  109. ^ Constitution Amendment (Sydney Water and Hunter Water) Act 2023 (NSW)
  110. ^ Constitution Amendment (Executive Council) Act 2024 (NSW)
  111. ^ Government Sector Employment and Other Legislation Amendment Act 2024 (NSW)
  112. ^ "Referendums in New South Wales". Parliament.nsw.gov.au. Archived from the original on 15 December 2024. Retrieved 11 October 2021.
  113. ^ "Referendum 13 May 1933". NSW Electoral Commission. Archived from the original on 18 February 2011.
  114. ^ "Referendum 29 April 1961". NSW Electoral Commission. Archived from the original on 18 February 2011.
  115. ^ "Referendum 17 June 1978". NSW Electoral Commission. Archived from the original on 18 February 2011.
  116. ^ a b "Referendum 19 September 1981". NSW Electoral Commission. Archived from the original on 18 February 2011.
  117. ^ "Referendum 25 May 1991". NSW Electoral Commission. Archived from the original on 18 February 2011.
  118. ^ a b "Referendum 25 March 1995". NSW Electoral Commission. Archived from the original on 18 February 2011.
  119. ^ Zines, Leslie (1986). "The Federal Balance and the Position of the States". In Craven, Gregory (ed.). The Convention Debates 1891–1898: commentaries, indices and guide. Sydney: Legal Books. p. 81. ISBN 9780949553171..
  120. ^ D'Emden v Pedder [1904] HCA 1, (1904) 1 CLR 91.
  121. ^ Railway servants case [1906] HCA 94, (1906) 1 CLR 488 at p. 534 & 537-8.
  122. ^ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' Case) [1920] HCA 54, (1920) 28 CLR 129.
  123. ^ Kable v Director of Public Prosecutions (NSW) [1996] HCA 24, (1996) 189 CLR 51, High Court (Australia).
  124. ^ Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1, (2010) 239 CLR 531 (3 February 2010), High Court (Australia)
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