Douglas McDonald-Norman

In order to determine whether a decision is affected by jurisdictional error, a court must ask two questions. Has an error occurred, in breach of the statutory conferral of power to make that decision? And, if so, was that error material to the decision-maker’s ultimate exercise of power? For an error to be material, an applicant for review must establish that there is a realistic possibility that, if not for the error, the decision-maker’s ultimate exercise of power could have been different.

Jerry Leung, Maxen Williams, and Kevin Zou

Last month, it was reported that the Victorian Director of Public Prosecutions, Kerri Judd KC, had made complaints to the Judicial Commission of Victoria about two judges: Justice Lasry of the Supreme Court of Victoria, and Judge Chettle of the County Court of Victoria. In the complaint against Lasry J, the Solicitor for Public Prosecutions, Abbey Hogan, alleged that his Honour’s criticisms of the VDPP in DPP v Tuteru had ‘the real tendency to diminish [(1)] public confidence in the administration of justice in Victoria [and (2)] the confidence of litigants and the public in general in his Honour’s integrity and impartiality’. Shortly after being made aware of the complaint, Lasry J in open court announced that he would resign even though he ‘utterly rejected’ the allegations made against him.

In this post, we do not make any comment on the merits of the complaints against Lasry J and Judge Chettle. Rather, taking a step back from the Victorian saga, we argue that there are strong normative and legal reasons as to why the executive should exercise restraint before making a formal complaint against a judge. We begin by explaining why formal complaints made by the executive against the judiciary should be the exception rather than the norm. This is followed by an illustration of the other mechanisms available for securing judicial accountability that better uphold a culture of comity between the executive and the judiciary

Chris Honnery

In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, a five-judge bench of the High Court sitting in its original jurisdiction considered the construction, validity, and operation of Direction 90, a written direction given by the Minister to guide decision‑makers in exercising powers under s 501 of the Migration Act 1958 (Cth).

This post focuses on two of the aspects of the High Court’s unanimous judgment that will have broader ramifications for decisions to refuse or cancel visas on character grounds.

Kate Bones

The deportation of people who have lived in Australia for most of their lives – since they were children, or sometimes infants – has become an increasing feature of Australian immigration law over the last few decades. Two recent decisions of the High Court address a particular aspect of that practice: the consideration in visa cancellation decisions of offences committed when a person was a child.

Joe McIntyre

Justice Lex Lasry is a titan of the law in Victoria, with a well-deserved reputation for impeccable integrity, who leaves behind a ‘significant legacy’. But the resignation of Justice Lasry is a sad cautionary tale of the dangers of formal judicial complaints processes. These bodies exist to promote judicial accountability by allowing an easy mechanism of public complaint. But the potential for mechanisms to cause more harm than good cannot be dismissed.

Joel Townsend and Emily Singh

The abolition and replacement of the Administrative Appeals Tribunal ('the AAT') is a landmark moment in the development of Australian public law. It is not, however, a fundamental change when it comes to the form, operation and function of merits review in Australia. In fact, the approach to the abolition and replacement of the AAT affirms the model of merits review which has come to be commonplace, across Australian jurisdictions, over the course of five decades. The establishment of the Administrative Review Tribunal ('the ART') represents a continuation of that model, with some important tweaks (especially in the area of decision maker appointments processes).

While this process of replacement of Australia’s primary Federal merits review tribunal is as much a story of consistency as it is of change, it does not mean that there is perfect consistency in the Australian merits review landscape. The Administrative Review Tribunal Bill 2024 ('the ART Bill') and its companion legislation are focused on establishing a new tribunal, and do not effect substantial change to the primary legislation which confers the AAT (and will confer the ART) with jurisdiction to review government decisions of various types. There has long been, and will remain, variation in merits review rights which is, at least in some cases, not well justified. We argue in this post that there is reason for a wider examination of primary legislation, to consider whether there is value in pushing for greater consistency in the enjoyment of merits review rights.

Daniel Ghezelbash, Mia Bridle and Keyvan Dorostkar

The introduction of the Administrative Review Tribunal Bill 2023 and associated Consequential and Transitional Provisions Bill provides a once-in-a-generation opportunity to redesign Australia’s federal administrative review system. The reforms will abolish the Administrative Appeals Tribunal (AAT) and replace it with the new Administrative Review Tribunal (ART).

In this post, we draw on data and analysis from the Kaldor Centre Data Lab to evaluate the design of the new ART, with a particular focus on decision-making within the MRD. It is important to note the analysis in this post is limited by the data which we were able to access through the freedom of information process and annual reports. Access to more detailed data would open opportunities for more robust analysis in relation to whether the bills will achieve the Government’s policy objectives and not have unintended consequences. It is essential that the new ART adopts a robust approach to data collection and transparency to enable ongoing evaluation of its operation and to identify areas in need of further reform.

Joe McIntyre

Judicial (and quasi-judicial) appointments  are one of those topics that judicial scholars can get really animated about, but which for the majority of the public and political classes is a bit of a nothing burger. We are blessed in this country with a judiciary with a well-deserved high reputation for quality and integrity.

It takes something pretty extraordinary for the public to care about judicial appointments, and for the media to pay any attention. Unfortunately, the recent history of appointments to the AAT provides just such a cautionary tale.

This post unpacks that background context of the role politicised appointments played in the death of the AAT, before examining how the ART Bill reforms Tribunal appointment procedures. In the final part, it explores the potential broader implications of these new processes.

Ellen Rock

Administrative lawyers around Australia likely issued a collective—albeit tentative—sigh of collective relief when the government introduced its tribunal reform package into Parliament in 2023. There is a lot to like about the proposed Administrative Review Tribunal (ART). The ART Bill and First Consequential Bill, recently supplemented by the Second Consequential Bill, go a long way towards addressing the most pressing concerns that had prompted plans to abolish the Administrative Appeals Tribunal (AAT). The government has also taken the opportunity in these Bills to mop up a number of other longstanding administrative law bugbears.

While the proposed reforms are largely welcome, it would be surprising if plans on this scale were free of any shortcomings. This post highlights some of the key issues likely to attract attention in the coming months, including in the Senate Committee inquiry that is due to report in late July.

Rosalind Dixon

Cass Sunstein is well known to many readers – for his work on constitutional law and theory, but also (with Richard H Thaler) on 'nudges' and how government and private actors can make better decisions using the insights of social psychology and behavioural economics. On some measures, he is the most cited contemporary legal scholar, and so prolific that he is the lawyer’s equivalent of Kevin Bacon – the person we use to judge 'degrees of separation' in the academy.

Any new book by Sunstein is thus highly anticipated, and his new book on constitutional interpretation, How to Interpret the Constitution, does not disappoint. In this pithy new work, Sunstein provides an interesting and novel account of how to approach the interpretation of a written constitution.

Brenda Tronson

Open AI announced the release of ChatGPT-4 in late 2022, billing it as a revolutionary next step in 'artificial intelligence'. Many people around the world got stuck into finding out what this new tool could do. So, what ethical issues arise for a lawyer using ChatGPT-4, or a similar tool?

Sangeetha Pillai

The Australian Constitution has a rather infamous track record when it comes to exclusion. Sometimes it excludes through silence. For example, since 1967 there has been no mention of First Nations peoples within its pages. It has very little to say about rights protection. It makes no reference to a national citizenship (but it does mention foreign citizens, if only to exclude them from Parliament).

Harry Sanderson and Meghan Malone

The High Court alone has the power to overrule High Court authority. In NZYQ, the Court unanimously overruled its prior constitutional holding in Al-Kateb and held that ss 189(1) and 196(1) of the Migration Act, which allowed an unlawful non-citizen to be detained indefinitely, contravened Ch III of the Constitution.

In this respect the decision provides insight into the circumstances in which the Court will elect to reopen, and thereafter overrule, constitutional authority. It reaffirms that, in deciding whether to reopen and overrule a constitutional decision, the 'consistency and continuity' of that decision in light of subsequent jurisprudence will be the Court’s primary consideration. The Court’s reasoning also indicates that while other factors will remain relevant to its assessment of whether a constitutional holding should be reopened, these factors will bear less weight.

Stephen McDonald SC

Much has been, and will continue to be, written about the substance of NZYQ v MICMA and its implications, both political and legal. This post focusses on some notable features of the judgment itself: in particular, the presentation of a single judgment joined in by all Judges, but which identifies individual positions taken by some of those Judges.

Call for Expressions of Interest to join the editorial team of AUSPUBLAW.

Ruchira Abeyratna

The Robodebt Royal Commission Report, published in July 2023, was a sobering reminder of the dire consequences of ineffective government accountability. The Albanese Federal Government’s recent commitment to adopting all the recommendations of the Royal Commission, at least in principle, represents a potential step towards preventing future disastrous misadministration. However, healing the wounds inflicted by the Robodebt scheme requires more than political promises. It requires substantial reflection and discourse on how public institutions should operate to effectively hold the government accountable.

This article will posit that while the judiciary adequately scrutinised the government’s administration of Robodebt, its dispute-dependency meant that justice was far from immediate. Thus, non-judicial institutions must be adequately empowered to take proactive and rapid action when the government acts unlawfully or against the principles of good government. I advance two suggestions on how this can be achieved. Firstly, imposing a positive duty on the Ombudsman to act when it reasonably suspects unlawful or unprincipled governmental conduct. Secondly, bolstering the protection of non-judicial accountability institutions from governmental interference.

Marco Rizzi, Fiona McGaughey and Alex Gardner

In August 2023, Senator David Pocock introduced to the Senate the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth) (‘the Bill’), which seeks to establish a statutory duty of care to avert harm to the health and wellbeing of current and future Australian children by the Commonwealth Government when making decisions that may cause significant greenhouse gas emissions. The explanatory memorandum to the Bill describes climate change as ‘having increasingly significant impacts in Australia, in the Pacific region and across the globe’ and outlines how the damage to ‘Australia’s economic prosperity, environment, and our health and wellbeing is severe and getting worse’.

This post articulates how the Bill addresses key gaps and delays in common law and legislation, improves Australia’s compliance with international law, and has the potential to create a useful climate change mitigation governance tool.

Anne Twomey

An arresting opening line is essential if one is to entice readers into an intimidating tome. The High Court’s judgment in Vanderstock v Victoria [2023] HCA 30 (Vanderstock) is certainly a tome, concluding at paragraph [951] and page 384. But the arresting line does not appear until paragraph [8]. Journalists would call this ‘burying the lede’.

In paragraph [8], the joint judgment of Kiefel CJ, Gageler and Gleeson JJ explained that the cases of Capital Duplicators Pty Ltd v Australian Capital Territory (1993) 178 CLR 561 (Capital Duplicators [No 2]) and Ha v New South Wales (1997) 189 CLR 465 (Ha) should not be re-opened. This was because, they said, ‘the Court could not justify now taking the momentous step of unsettling the resultant constitutional doctrine’ set out in these cases and because the current federal-state financial arrangements are ‘not to be judicially disturbed’.

Why that is such an arresting, or perhaps more accurately breathtaking, statement is that the judgment proceeds to do precisely what it said it could not justify doing: establishing a new ‘high constitutional purpose’ for s 90; establishing a new test for an excise; extending excise to taxes related to the ownership, hiring or usage of goods, or indeed anything that affects the demand for goods, thereby creating high levels of uncertainty about the validity of State taxes; and up-ending existing Commonwealth-State financial relations.

Emily Hammond and Rayner Thwaites

Within the space of 18 months the High Court of Australia has delivered three judgments on the constitutional validity of ministerial powers to revoke citizenship. Benbrika v Minister for Home Affairs [2023] HCA 33 (‘Benbrika 2’), and Jones v Commonwealth of Australia [2023] HCA 34 (‘Jones’), handed down on 1 November 2023, join last year’s decision in Alexander v Minister for Home Affairs [2022] HCA 19 (‘Alexander’). Central to all three cases is the question: what constraints does Ch III of the Constitution impose on laws for citizenship deprivation?
In this post we explain how the authorities cohere to establish a clear structure for evaluating whether ministerial citizenship stripping powers comply with Ch III. Moreover, these cases further cement the proposition that by operation of Ch III, the Commonwealth cannot impose punishment on any basis other than breach of the law by past acts. This limitation on Commonwealth power to punish is emerging as the key organising principle for evaluating whether citizenship stripping powers — including judicial powers exercised by courts — are compatible with Ch III.

Laura John, Josephine Langbien and Sanmati Verma

Late in the afternoon on the final day of the hearing in NZYQ, Chief Justice Gageler announced that the High Court would ‘adjourn momentarily to consider the course it will take’. When the hearing resumed a mere 16 minutes later, the Chief Justice declared that ‘at least a majority of the Court’ considered that the detention of the plaintiff was unlawful. With that, the High Court overturned an almost 20-year legal precedent established in Al-Kateb that had permitted the Executive Government to detain non-citizens indefinitely. In the aftermath, a political and media furore saw the Albanese Government rush unprecedented laws through Parliament to create a shadow detention regime for those released from immigration detention.

This article charts the road from Al-Kateb to NZYQ, discusses the Parliament’s extraordinary legislative response and offers some thoughts on what might follow as the Government attempts to reformulate its approach to immigration detention. We warn that – in the aftermath of one of the most significant constitutional cases in decades – we should not continue further down a path that punishes people on the basis of their visa status. Instead, we should take this opportunity to overhaul a deeply flawed system.