Felicity Nagorcka

Senior Principal Lawyer

Felicity provides expert advice on complex questions of constitutional law and statutory interpretation, and has extensive experience conducting constitutional litigation in the High Court and other courts. She has significant experience advising Queensland Government departments and agencies on issues arising from the application of the Commonwealth Constitution (including potential inconsistencies under s. 109, the Kable principle and the implied freedom of political communication), the implementation of national schemes, parliamentary privileges and procedures, and various administrative law issues.

Before joining Crown Law in 2008, Felicity worked at a large commercial law firm and was Associate to Justice Hayne of the High Court of Australia. She holds a Master of Laws with first class honours from the University of Cambridge.

In 2014–2015, Felicity was part of the team providing strategic constitutional advice to the Premier’s Special Taskforce on Domestic and Family Violence chaired by Dame Quentin Bryce AD CVO.

In 2011, Felicity was seconded to the Native Title and Resources Team at Crown Law where she developed expertise in applying the key statutes governing resources law and native title.

In 2009, Felicity was seconded to the Office of Fair and Safe Work Queensland where she played a leading role in advising the government on the referral of Queensland’s industrial relations powers to the Commonwealth. That work involved identifying creative solutions to constitutional problems, negotiating with other jurisdictions and instructing Parliamentary Counsel.

Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC v State of Queensland (B26/2014)

In June 2014, the Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC commenced proceedings in the High Court challenging the validity of amendments made in 2013 to the North Stradbroke Island Protection and Sustainability Act 2011 (Qld). 

The amendments allow for the continuation of sand mining on North Stradbroke Island until 2040. The plaintiff alleges that the 2013 amendments are inconsistent with the Native Title Act 1993 (Cth) and are therefore rendered invalid by s. 109 of the Constitution. The matter has been referred to the High Court for hearing. Felicity is a key member of the legal team acting for the Department of Natural Resources and Mines in this matter, which also includes experts from Crown Law’s Native Title team.

Kuczborski v State of Queensland (2014) 89 ALJR 59

Felicity was part of the State’s legal team defending the State’s anti-bikie laws, the validity of which were challenged by Mr Kuczborski. The challenged legislation included the Vicious Lawless Association Disestablishment Act 2014

Mr Kuczborski alleged that the laws were inconsistent with the institutional integrity of Queensland courts and were therefore invalid for infringing the Kable principle. In November 2014, the High Court (6:1) dismissed the plaintiff’s challenge.

RCB (as litigation guardian of EKV, CEV, CIV and LRV) v The Hon. Justice Forrest (2012) 247 CLR 30

Felicity acted for the Director-General of the Department of Communities, Child Safety and Disability Services in High Court proceedings regarding the return of four sisters from Queensland to Italy. The plaintiff in this matter, the girls’ aunt, alleged that the sisters had been denied procedural fairness in Family Court proceedings about whether they should be returned to Italy. 

The plaintiff also alleged that a provision of the Family Law Act 1975 (Cth), which provided for separate representation for children in such proceedings only in ‘exceptional circumstances’, was invalid. The High Court made orders dismissing the application immediately following oral argument.

Owen v Menzies [2013] 2 Qd R 327

Felicity acted for the Attorney-General in this matter which arose from complaints of sexual vilification made by two women under s. 124A of the Anti-Discrimination Act 1991 against Ronald Owen. The matter was ultimately heard by the Queensland Court of Appeal, where the Attorney-General intervened. Due to the complex procedural history of the matter, the primary issues in the Court of Appeal were:

(a) whether the Queensland Civil and Administrative Tribunal was a ‘court’ for the purposes of Chapter III of the Commonwealth Constitution, and

(b) whether s. 124A of the Anti-Discrimination Act 1991 infringed the implied freedom of political communication. Consistently with the submissions made by the Attorney-General, the Court of Appeal answered those questions “Yes” and “No” respectively. Mr Owen later applied for special leave to appeal to the High Court of Australia, but this application was refused with costs.

International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319

Felicity acted for the Attorney-General who intervened in this matter which arose out of an ex parte application to the NSW Supreme Court, brought by the NSW Crime Commission, for a freezing order over various bank accounts of the International Finance Trust Company. 

The company argued that the provision under which the application was made was invalid for infringing the Kable principle. A majority of the High Court found in the company’s favour. This was the first matter, after Kable itself, in which the High Court accepted a submission that legislation was invalid for infringing the doctrine established in that case.