Welcome to the August edition of the AUSPUBLAW Australian Public Law Events Roundup. The events in this roundup were compiled in late July.

Remember, if you have an AUSPUBLAW opportunity, conference or significant public lecture that you would like included in this roundup, please contact us at auspublaw@unsw.edu.au. The roundup is published once a month on the first business day of the month, so please let us know in time for that deadline.

AUSPUBLAW also maintains a a regularly updated (at least once a month) page outlining recent key Australian High Court public law decisions, with links to summaries of these decisions. Also included on this page will be any significant international and foreign decisions in public law that we believe will be of interest to our readers. You can find this page here.

Review of Decisions made by Intelligence Officials
Australian Institute of Administrative Law
Date: 5 August 2020
Time: 12:30 pm (AEST)
Location: Online

Officials in intelligence agencies, like other public officials, make decisions that affect the rights of individuals every day. The Ministers responsible for these agencies and the Attorney-General have significant decision making powers to authorise activities, including activities that would otherwise be unlawful. Theoretically, most if not all such decisions are subject to judicial review and a few are subject to AAT review. However, there are many practical barriers to individuals seeking review and remedies. Most people whose rights are affected by intelligence agencies will never even know that a decision affecting them has been made, and if they do find out they are unlikely to ever get access to most of the relevant information. Australian intelligence agencies are exempt from FOI and the ADJR regime and fall outside AHRC jurisdiction. Only a small number of ASIO decisions can be challenged in the AAT. The content of procedural fairness in national security-related matters can be reduced to almost nil, because of security issues.

So what practical mechanisms are available to review, challenge, or provide assurance about the legality and propriety of intelligence agency activities? In this lunchtime AIAL webinar, we will explore the types of decisions that are made under the Intelligence Services Act 2001 and the Australian Security Intelligence Organisation Act 1979, the practical barriers to ‘traditional’ forms of administrative review and the role of the Inspector-General of Intelligence and Security. 

Jake Blight, Deputy Inspector-General of Intelligence and Security

Jaala Hinchcliffe, Integrity Commissioner

For further information, and to register, click here.

Transparency and Accountability in the ‘Age of Information’
ANU College of Law
Date: 5 August 2020
Time: 1:00 – 2:00 pm (AEST)
Location: Philippa Weeks Staff Library, Australian National University, Acton, ACT, and online

‘Transparency’ and ‘accountability’ are much-touted values and/or processes of this ‘information age’. We erect mandatory reporting schemes – from environmental impact to corporate governance to workplace gender quotas to child safety – on the premise that these might engender internal organisational behavioural change and, externally, facilitate both transparency and accountability.

In this seminar, Dr Jolyon Ford explores some design assumptions behind the Modern Slavery Act 2018 (Cwth), Australia’s new non-punitive yet mandatory corporate reporting scheme on human rights risks in supply chains. Ford argues that schemes requiring the production of even more information into our data-saturated ‘audit society’ (Power 1999) – and associated rituals of verification – will not necessarily enable better decision-making, insight or oversight by external stakeholders. Ford argues that reporting may deliver a transparency paradox (too much information of doubtful utility) or transparency trap (reportees engage in narrow compliance-think, rather than solving problems) or transparency displacement (a scheme creates false reassurance and momentum for ‘truer’ transparency falls away). Ford will discuss his research agenda around how we conceptualise ‘transparency’ and ‘accountability’, how these relate to each other and to another concept (‘responsibility’), and under what conditions information-based schemes (mere reporting) might potentially help realise those values.

For further information, and to register, click here.

Sexual Harassment in the Legal Profession
Melbourne Law School
Date: 6 August 2020
Time:  6:00 – 7:30 pm (AEST)
Location:  Online

In response to recent revelations in the High Court of Australia, Professor Pip Nicholson, Dean of MLS, will host a virtual panel on sexism and sexual harassment in the legal profession.

Professor Nicholson will be joined by Fiona McLeay, CEO and Commissioner of Victorian Legal Services Board, and Jennifer Batrouney AM QC, Convenor of the Women Barristers Association and past President of the Australian Bar Association, the Victorian Bar, and Australian Women Lawyers.

The panel will discuss what has happened, the response from Chief Justice Susan Kiefel AC, and what might happen going forward.

For further information, and to register, click here.

The Future of Law Reform Webinar Series: Automated Decision Making and Administrative Law
Australian Law Reform Commission, Queensland University of Technology Faculty of Law, University of Queensland School of Law, ARC Centre of Excellence for Automated Decision-Making and Society
Date: 10 August 2020
Time: 1:00 – 2:00 pm (AEST)
Location: Online

Interact with an expert panel, discussing whether the Australian Law Reform Commission should inquire into the regulation of automated decision making.

In 2019, the ALRC undertook research and broad public consultation, asking: What are the most pressing areas for law reform in Australia today? In December, the ALRC published its report, “The Future of Law Reform: A Suggested Program of Work 2020-25”. This webinar is part of a series to gain feedback and further input on some of the ALRC’s suggested future law reform inquiry topics.

Join an expert panel comprising thought leaders on automated decision making and administrative law addressing questions such as: Should administrative law reform be a priority in light of increasing automation in decision making by government agencies? What are the particular problems that any future law reform inquiry should seek to solve? What benefits might be expected from reform?

For further information, and to register, click here.

Online Book Launch – Disputed Territories and International Criminal Law: Israeli Settlements and the International Criminal Court
University of Queensland School of Law
Date: 11 August 2020
Time: 4:00 – 5:00 pm
Location: Online

The book will be launched by Prof. Tim McCormack, Professor of Law at the University of Tasmania and Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court.

It has been over 50 years since the beginning of the Israeli occupation of the Palestinian Territories. It is estimated that there are over 600,000 Israeli settlers living in the West Bank and East Jerusalem, and they are supported, protected, and maintained by the Israeli state. This book discusses whether international criminal law could apply to those responsible for allowing and promoting this growth, and examines what this application reveals about the operation of international criminal law.

For further information, and to register, click here.

Reforming Tax Sharing in the Federation
Konrad Adenauer Stiftung Regional Programme Australia and New Zealand; Tax Group, Melbourne Law School; Centre for Comparative Constitutional Studies, Melbourne Law School
Date: 11 August 2020
Time:  5:00 – 6:30 pm (AEST)
Location:  Online

Professor Dr Mellinghoff (Federal Supreme Finance Court of Germany) will present a Webinar on Tuesday 11 August on the federal allocation of taxes in Germany, where the most important taxes including income tax, corporate income tax and sales tax are jointly shared by the Federal and State governments. The talk will discuss the vertical and horizontal distribution of tax revenues and fiscal controls on the Federal, State and local governments.

This talk will be chaired by Professor Miranda Stewart (Melbourne Law school), with expert Australian commentary including Emeritus Professor Cheryl Saunders (Melbourne Law School). 

This seminar is part of Tax Research Seminars Online and will be presented via Zoom web link.

For further information, and to register, click here.

Freedom of Expression, Liberalism and Harmful Expression
ANU College of Law, Centre for International and Public Law
Date: 12 August 2020
Time:  1:00 – 2:00 pm (AEST)
Location: Online

Freedom of expression has long been the subject of philosophical inquiry. Various theories have been furthered to explain and justify its protection, and, on top of this unsettled theoretical terrain, political debate is ongoing about how harmful expression should be addressed, including in the law.

In this context we should resist shifting focus from the freedom of expression to the harm of expression, and we should recall the liberal morality of freedom of expression in order to clarify how the liberal state may address harmful expression.

Dr Jelena Gligorijevic will argue that freedom of expression is an absolute moral right, obligating the state not to interfere with expression on the basis of its appeal to independent reason. It is a precondition for liberalism, because it is necessarily entailed in the Kantian imperative of minimal inherent dignity and autonomy.

This deontological morality of freedom of expression has been neglected in consequentialist constructions of freedom of expression, which eschew the liberal presumption of capacity for independent reason, and focus upon harmful effects of expression.

Dr Gligorijevic proposes an Independent Reason Rationale for addressing harmful expression, to reorientate the state to its deontological obligations regarding freedom of expression. Limiting harmful expression inconsistently with that rationale breaches the moral right to freedom of expression.

The state might be forced to breach that right if it faces a conflict between it and another absolute moral right, like the right to life and security, but that breach remains a departure from liberalism.

For further information, and to register, click here.

Public Law Responses to COVID-19: Fairness in Virtual Courtrooms
Gilbert + Tobin Centre of Public Law at UNSW Law and Australian Institute of Administrative Law NSW Chapter
Date: 14 August 2020
Time: 1:00 – 2:00 pm (AEST)
Location: Online

This webinar will examine the measures and changes to court procedures put in place across Australia in response to the COVID-19 pandemic, including the move to online hearings and expansion of non-jury trials. It will discuss the rationale and design of these measures, their compatibility with public law norms and values, and look forward to lessons that may be learned about the broader digitisation of court process.

– The Hon Justice Beech-Jones, NSW Supreme Court
– Dr Anna Olijnyk, University of Adelaide
– Dr Joe McIntrye, University of South Australia
– Stephen McDonald, Hansen Chambers, South Australian Bar
– Kieran Pender, Australian National Univeristy

– Dr Lisa Burton Crawford, UNSW Law

For further information, and to register, click here.

Online Courts and the Future of Justice
Law Society of New South Wales
Date: 19 August 2020
Time: 3:00 – 4:30 pm (AEST)
Location: Online

Since courtrooms closed around the world in mid-March, the legal profession has been forced to test alternative ways of delivering court service.

The uptake of various technologies, especially video technology, has been accelerated. Minds have been opened and changed. Assumptions have been swept aside. Sceptics and critics remain, but there is certainly greater acceptance now than in the past – amongst lawyers, judges, officials and court users – that judicial and court work might be undertaken differently.

Professor Richard Susskind OBE will introduce the various types of ‘remote courts’ that are emerging, discuss their advantages and limitations, and consider the extent to which justice will be enhanced or diminished by these developments and what the future might hold for judges and litigators. 

For further information, and to register, click here.

The Reception, Quality and Evaluation of Scientific Evidence in Australian Courts
Australian Academy of Law, Australian Academy of Science
Date: 19 August 2020
Time: 5:00 – 7:00 pm (AEST)
Location: Online

What are the differences between scientific evidence and legal proof—and how do we navigate different types of evidence in Australian courts?

You are warmly invited to join an online symposium held in collaboration between the Australian Academy of Science and the Australian Academy of Law.

Join a panel of experts from scientific and legal fields, chaired by The Hon Justice Virginia Bell of the High Court of Australia, as they explore the challenging topic of scientific proof and legal proof.

Register today to attend this free online event.

Lucinda Lecture 2020: Whither the Implied Freedom of Political Communication?
Monash Law
Date: 27 August 2020
Time: 6:00 – 7:00 pm
Location: Online

In recent years, the implied freedom of political communication has become one of the more frequently litigated constitutional issues in the High Court of Australia. That is remarkable given the relatively recent recognition of the implied freedom, the differences of judicial opinion that attended its formulation, and forceful criticisms of the doctrine. Critics have said that the doctrine is the product of impermissible judicial activism, and so uncertain and ambiguous in its application that it has failed and will go on failing.

In this year’s lecture, the Honourable Justice Nettle will explain why it might be thought that, despite such differences of judicial opinion and the difficulties and uncertainties that are said to have attended the doctrine’s application, the implied freedom of political communication is soundly based in accepted constitutional principle. His Honour will also explain how the recent invocation of structured proportionality analysis as a test of “appropriateness and adaptedness” is likely to result in increased certainty in the doctrine’s application.

For further information, and to register, click here.

ICON•S AUS-NZ Launch Event: Trans-Tasman Reflections on COVID-19 and Public Law
International Society of Public Law – Australia and New Zealand Chapter, Gilbert + Tobin Centre of Public Law, Australian Association of Comparative Law
Date: 28 August 2020
Time: 1:00 – 2:30 pm (AEST)
Location: Online

This webinar will mark the official launch of the Australia-New Zealand chapter of the International Society of Public Law, and be co-hosted by the Gilbert + Tobin Centre and AACL.  It will draw together experts from Australia and New Zealand to discuss how the governments in their jurisdictions have responded to the COVID-19 pandemic. Among other things, they will consider what has determined the success of responses, what oversight challenges have arisen, and the public law significance (if any) of how the two countries have worked together to respond to the pandemic.
Introduction by Professor Rosalind Dixon, Director of the Gilbert + Tobin Centre for Public Law at UNSW Law, and Co-President of ICON-S

– Professor the Hon Kevin Bell AM QC, Director of the Castan Centre for Human Rights Law at Monash University
– Associate Professor Claire Charters, University of Auckland Faculty of Law
– Associate Professor Dean Knight, Victoria University of Wellington Faculty of Law and Co-Chair of ICON-S AUS-NZ
– Professor Adrienne Stone, Director of the Centre for Comparative Constitutional Studies at Melbourne Law School

Rapporteur: Professor Janet McLean QC, University of Auckland Faculty of Law

Chair: Professor Sarah Murray, University of Western Australia Faculty of Law and Co-Chair of ICON-S AUS-NZ

For further information, and to register, click here.

Relighting a Lamp of the Constitution? Prorogation in the United Kingdom Courts and its Implications
University of Queensland School of Law, Supreme Court Library of Queensland
Date: 12 November 2020
Time: 5:00 – 6:45 pm
Location: Banco Court, Supreme Court of Queensland, Queen Elizabeth II Courts of Law Complex, 415 George Street, Brisbane QLD

The judgment of the UK Supreme Court in Miller (No 2) [2019] UKSC 41 that a prorogation of Parliament in September 2019 under the prerogative power was “unlawful, void and of no effect” is politically and legally controversial. It has led the newly elected government in the United Kingdom to announce a review of the constitutional relationships between the political and judicial branches of government. Eminent legal scholars have variously described the decision itself as either “wholly unjustified by law” or one that has “relit a lamp of the constitution”.  The paper examines such claims. 

The case is the latest in a line in which the courts in the United Kingdom have sought to explain the principles and values of the British constitution and the role of the courts in protecting them from legislative or executive encroachment. Such cases turn on assessments of what is “constitutional” or “fundamental” in statutes and in common law and are hostile to encroachment by the executive or legislative branches.  The reasoning of the courts has been criticised for applying the methods of modern administrative law to matters of high policy.  In Miller (No 2), as in the earlier Miller (No 1), the focus is the institutional architecture of the constitution, rather than the more familiar context for constitutional contest of individual freedom and rights.  There are differences of opinion as to whether judges in such cases are carrying out their inevitable responsibilities under the rule of law to maintain and explain the constitution or whether they tip over into illegitimate constitution-building.

The changing scope of the political constitution of the United Kingdom post-Brexit and post-devolution and the incongruity of a constitution still based on the “efficient secret” of the near complete fusion of the executive and legislative powers of the state, may lead to a new constitutional settlement in the United Kingdom.  If so, Miller may come to be seen as a product of a set of circumstances that were “unique”, as the Court in is reasons suggested it was, and the march of common law constitutionalism may subside.  If not, Miller may point to further judicial development of the United Kingdom constitution. 

The paper examines whether Miller is properly to be seen as part of what Justice Gummow once described as “the continuing intellectual agonies attending British constitutionalism”, of little relevance to constitutionalism in Australia or other common law jurisdictions with their own unique constitutional histories.  It suggests that the reasoning employed by the United Kingdom Supreme Court has implications for the continuing tug in all jurisdictions between the political and the legal (and in particular the concepts of “justiciability” and “parliamentary sovereignty”). It also has implications for the role in constitutional law of substantive values, many derived from antecedent common law in our shared traditions.  It questions whether the High Court’s location of sovereignty in the Australian Constitution and the stricter separation of powers under the Constitution will accelerate divergence in constitutionalism from jurisdictions such as Canada, the United Kingdom and New Zealand. 

For further information and to register, click here.