Welcome to the July edition of the AUSPUBLAW Australian Public Law Events Roundup. The events in this roundup were compiled in late June. Due to the evolving nature of responses to COVID-19, some of the below events may have been cancelled, postponed or otherwise amended. Please consult the link for each event for notification of any changes.

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.

Bail, Sentencing and Prisoners under COVID-19
Monash Law, Castan Centre for Human Rights Law, Transnational Criminal Law Group
Date: 1 July 2020
Time:  5:30 – 6:30 pm (AEST)
Location: Online

This seminar is part of the Protecting Rights in the Pandemic Seminar Series.

In March 2020, the World Health Organisation declared the 2019 novel coronavirus (COVID-19) a pandemic because of the severity of the disease, and how rapidly it has spread across the world. This declaration had significant repercussions internationally and domestically. Governments around the world proceeded to implement a number of restrictions in an attempt to ‘flatten the curve’; a concept aimed at limiting the spread of the virus.

The imposition of these restrictions has had a substantial effect on the criminal justice system in general, and for prisoners and prisons management in particular. In this seminar, Dr Natalia Antolak-Saper will consider the issue of COVID-19 in the context of decisions relating to remand – bail and sentencing; where the issue of the virus has been most pronounced. This will be followed by a presentation by Professors Lorana Bartels and Thalia Anthony who will discuss the challenges and lessons for prisons management from COVID-19.

For more information and to register, click here.

Pressing ‘Reset’ on Resettlement: How a Lifeline can Survive COVID-19
Kaldor Centre for International Refugee Law
Date: 2 July 2020
Time: 1:00 – 2:00 pm (AEST)
Location: Online

Resettlement is a life-saving tool. It is a way that countries, like Australia, help refugees and their families to find safety. In their resettlement country, refugees can build a new life and create a new home, while enjoying a secure and long-lasting legal status. 

Now resettlement is under unprecedented pressure. For the first time, UNHCR and the International Organization for Migration (IOM) had to suspend resettlement departures for refugees earlier this year. With the pandemic halting flights and closing borders, the agencies had little choice but to temporarily abandon this vital lifeline.

While the resumption of resettlement travel has just been announced, many refugee families have been stranded, delayed, separated. Though UNHCR had identified 1.4 million people who needed to be resettled in 2020, even its goal to resettle 70,000 people won’t be met. 

In this free Kaldor Centre online discussion, a panel of experts will bring you up to date on what this moment means in human terms, and how governments, including Australia, are responding. 

The UN High Commissioner for Refugees, Filippo Grandi, has said: “History has shown that with a strong sense of purpose, States can come together to collectively respond to refugee crises, and help millions to reach safety, find homes and build futures in new communities.” 

What history is in the making for refugees in this current crisis? 

Find out from our expert panel, Kate O’Malley (UNHCR Canberra), Sally Pfeiffer (Department of Home Affairs), Paul Power (Refugee Council of Australia) and Melika Yassin Sheikh-Eldin (AMES Australia), in a conversation moderated by Kaldor Centre Director Jane McAdam

For further information and to register, click here.

Gilbert + Tobin Centre of Public Law Webinar Series: Public Law Response to COVID-19 – Elections and COVID-19
Gilbert + Tobin Centre of Public Law, UNSW and Electoral Regulation Research Network, Melbourne Law School
Date: 3 July 2020
Time:  1:00 – 2:00 pm (AEST)
Location:  Online

This webinar will examine the challenges that the COVID-19 pandemic poses for the conduct of elections in Australia. It will consider how the spread of the coronavirus has prompted questions about whether elections should go ahead and, where they do, how voting, campaigning and counting can be conducted in a safe manner. This webinar is particularly timely given the Eden-Monaro by-election will take place on Saturday, 4 July.

Michael Maley, Electoral Process Specialist, formerly Australian Electoral Commission
Wade Lewis, Assistant Electoral Commissioner, Electoral Commission Queensland
Prof Graeme Orr, University of Queensland

Paul Kildea, UNSW Law School

For further information and to register, click here.

Temporary Migrants as a Vulnerable Group under COVID-19
Monash Law, Castan Centre for Human Rights Law, Transnational Criminal Law Group
Date: 8 July 2020
Time: 5:30 – 6:30 pm (AEST)
Location: Online

This seminar is part of the Protecting Rights in the Pandemic Seminar Series.

This session focuses on the human rights of migrants. The pandemic has left many groups of migrants in particularly precarious positions. Temporary migrant workers who have lost their livelihoods have been largely excluded from the federal government’s support package and are exposed to a number of economic and health risks. Migrants held in immigration detention are particularly vulnerable to further harms due to detention conditions and their existing exclusion from systems of assistance. This session examines these issues in light of Australia’s international human rights obligations.

For further information and to register, click here.

Key Principles in Administrative Law – Some Recent Cases
Australian Institute of Administrative Law, ANU College of Law, Centre for International & Public Law
Date: 15 July 2020
Time: 5:30pm (AEST)
Location: Online

Presented by the Australian Institute of Administrative Law (AIAL) and the Centre for International & Public Law (CIPL), this free public online seminar will comprise four speakers discussing recent cases on the basic features, and limits, of the Australian regime for challenging administrative decisions, and trends which emerge from them.

Professor Peta Spender, ANU Law School on CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 concerning whether there can be apprehended bias based on prejudicial but irrelevant material provided to a decision-maker.

Geoffrey McCarthy, Presidential Member, ACT Civil and Administrative Tribunal on Frugtniet v ASIC [2019] HCA 16 about the nature of merits review.

Alice Kingsland, Counsel, Australian Government Solicitor on Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 on the relevance of climate change to development applications.

Cain Sibley, Partner, Clayton Utz on materiality of errors in judicial review, considered in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.

For further information and to register, click here.

Protest and Policing under COVID-19
Monash Law, Castan Centre for Human Rights Law, Transnational Criminal Law Group
Date: 15 July 2020
Time: 5:30 – 6:30 pm (AEST)
Location:  Online

This seminar is part of the Protecting Rights in the Pandemic Seminar Series.

This session will examine the way in which the COVID-19 laws have been implemented in practice and will focus on two particularly concerning issues: the impact upon the right of persons to protest and the breadth of discretion given to police in enforcing the COVID-19 directives.

The COVID-19 laws present particular challenges to human rights due to the amount of discretion they give to police officers – allowing police to hand out significant fines and arrest people simply for being out in public. A key problem is that the COVID-19 laws often use open-ended and vague terms to describe offences and sanctions.

This seminar will examine the serious implications this may have for key human rights such as freedom of movement, freedom of expression and freedom of assembly.

For further information and to register, click here.

Legislation, Governance and Accountability under COVID-19
Monash Law, Castan Centre for Human Rights Law, Transnational Criminal Law Group
Date:  22 July 2020
Time:  5:30 – 6:30 pm (AEST)
Location: Online

The stay-at-home, no-work and other measures were introduced under COVID-19 through statutory directives that (in most jurisdictions) did not require public, certified human rights clearance. Changes to the operation of judicial systems were introduced by legislation that (in Victoria, the ACT and Queensland) did require that clearance, but did the legislation go too far? This session examines the adequacy of our systems for democratic oversight of the COVID-19 measures and how they might be reformed.

For more information and to register, click here.

Free Speech at Work: Folau, Banerji and Beyond?
ANU College of Law
Date: 22 July 2020
Time:  6:30 – 7:45 pm (AEST)
Location: Online

The ability of employees to speak freely, both in public and private sector contexts, is increasingly being challenged. In 2019, the High Court of Australia endorsed the validity of the Department of Immigration’s termination of a public servant for her anonymous tweets. Until a recent settlement, the Federal Circuit Court was hearing Israel Folau’s challenge to his dismissal by Rugby Australia over controversial social media posts. These cases give rise to complex and often unsettled legal questions, at the intersection of employment law, constitutional law and anti-discrimination law. As the distinction between at-work and off-duty continues to blur in modern workplaces, it is unlikely these challenges will fade.

Where should the lines be drawn? Is it possible to reconcile employees’ speech rights with the interests of employers? These events will consider these issues from practical, theoretical, policy and comparative perspectives. 

For further information and to register, click here.

Gilbert + Tobin Centre of Public Law Webinar Series: Public Law Responses to COVID-19 – COVID-19 and Federalism: Seeding Chaos or a More Effective Response?
Gilbert + Tobin Centre of Public Law, Gonski Institute for Education, and New Economic Policy Initiative, UNSW
Date: 24 July 2020
Time: 1:00 pm – 2:00 pm (AEST)
Location: Online

What is the relationship between Commonwealth and state government responses to the Covid19 pandemic? States have responded differently to the pandemic, and we have seen Commonwealth-state co-operation through novel public law institutions such as the ‘National Cabinet’, as well as disagreement among Commonwealth and state governments in a range of key areas – especially in the context of education and the closure/opening of schools.  Ultimately we will ask whether federalism has made us safer, or simply more confused, as we confront the challenges raised by the pandemic.

Professor Andrew Lynch, Head of School and Deputy Dean of the Faculty of Law, University of New South Wales
The Hon Adrian Piccoli, Director of the UNSW Gonski Institute for Education and Professor of Practice, School of Education, University of New South Wales
Dr Tamara Tulich, Senior Lecturer, University of Western Australia
Dr Shipra Chordia, NSW Bar, Gilbert + Tobin Centre Fellow

Professor George Williams, Dean of the Faculty of Law, University of New South Wales

For further information and to register, click here.

39th Annual Conference of the Australian and New Zealand Law and History Society: One Empire, Many Colonies, Similar or Different Histories?
Australian and New Zealand Law and History Society
Date: 9-12 December 2020 (abstracts due 31 July 2020)
Location: University of Auckland

Call for paper
Abstracts are invited from scholars bringing historical perspective on law who wish to gather at The University of Auckland and AUT University – there to listen to and discuss papers and panels on aspects of law in history. However, since the impact of COVID-19, travel restrictions and university funding deficits, we now also seek expressions of interest from those who may wish to present a paper to a dual format conference or virtual-only conference if either possibility turns out to be feasible.

The 2020 theme invites a comparative lens on British imperial and colonial histories.  Other papers with an historical perspective on law might include work that positions law in a specific temporal frame; deals with histories of law, lawmaking, and legal ideas; or has a focus on legal institutions and their personnel. Proposals from postgraduate and early career researchers are welcome.

Individual paper proposals for a 20 minute presentation must include an abstract (no more than 300 words) and a biographical statement (no more than 100 words). Panel proposals by 3 or 4 speakers should include the above, plus a panel title and brief rationale for the panel as a whole (no more than 300 words).All abstracts must be submitted to Karen Fairweather: k.fairweather@auckland.ac.nz by 31 July 2020.

Click here for more information.

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.

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
Location: Federal Court, Court No 1, Level 21, Law Courts Building, Queen’s Square, Sydney NSW

A panel of experts on science and law will be asked questions by The Hon Justice Virginia Bell of the High Court of Australia on the topic of scientific proof and legal proof. If the COVID-19 pandemic prevents the holding of the event on 19 August, it will be postponed to a later date and registrants will be informed well in advance of the postponement and registration fees paid (see below) will be refunded.

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.