Amy Tan

In July 2022, the 76th session of the United Nations General Assembly adopted a landmark resolution to recognise the right to a clean, healthy and sustainable environment by a vote of 161 in favour, 0 against and 8 abstentions. Whilst Australia voted in favour of the resolution, the Federal Government has thus far not indicated any desire to legislate this domestically.

In March 2023, the Australian Human Rights Commission ('the AHRC') launched a Position Paper outlining a proposed federal Human Rights Act. Notably, amid the 28 rights outlined was the right to a healthy environment. This Position Paper has since formed the basis of an inquiry into a Human Rights Framework for Australia by the Parliamentary Joint Committee on Human Rights (‘the PJCHR’), with the final report due in early 2024. This revived push is an exciting development which has come after a decades-long call from the legal and general community alike for more comprehensive statutory protection of human rights.

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.

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.

Matthew Groves

A sexual assault is alleged to have occurred several years ago in the federal Parliament building. Mr Bruce Lehrmann was alleged to have sexually assaulted Ms Brittany Higgins. Mr Lehrmann sought a stay of the charges, arguing that he could not possibly get a fair trial. That claim failed, so a trial followed. The jury was discharged after five days of deliberation. A retrial was planned but the prosecution was discontinued because of concerns about Ms Higgins’ mental health and the impact a second trial might have upon her.

Janina Boughey

Among English-speaking common law jurisdictions Australia has been the most resistent to doctrines of deference in the administrative law context. It is often said that Australia’s High Court has rejected deference. In fact, a majority of the High Court has rejected Chevron deference, but only in obiter. Nevertheless, it is true that Australia has no ‘doctrine’ of deference, that Chevron deference specifically is generally thought to be inconsistent with the Australian conception of the separation of powers, and that the very mention of the word ‘deference’ seems to provoke the ire of some judges.

Narelle Bedford

Darren O’Donovan

The Final Report of the Robodebt Royal Commission was released on 7 July 2023, in a landmark moment for Australian public administration. The report makes searing findings against senior public servants and politicians. In this post I discuss how, in her report, Commissioner Catherine Holmes AC SC effectively inverts a generation of public service thinking about cabinet confidentiality and the duty to give frank and fearless advice. I argue that the Report’s final two recommendations – suggesting reform to cabinet confidentiality and record creation – are the lynchpins for successful public service reform after Robodebt.

Craig Lenehan

Scott Stephenson

Samuel Naylor

On 2 December 2022, the Full Federal Court unanimously dismissed an appeal brought by Santos NA Barossa Pty Ltd (Santos) against a decision of Bromberg J: Santos NA Barossa Pty Ltd v Tipakalippa. This set aside the decision of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to accept Santos’ Drilling EP. On appeal, all judges held that Santos and in turn NOPSEMA had failed to understand the correct meaning of the statutory language and the decision of the regulator was set aside.

In this case note, I discuss how the parties and, in turn, the Court in this case approached the issue of whether a decision maker had lawfully reached a state of ‘reasonable satisfaction’: a subjective jurisdictional fact, or precondition, to the acceptance of the Drilling EP prepared by Santos. I suggest that while the Full Court took an orthodox approach, the judgment at first instance illustrates the uncertainties which trouble this form of judicial review.