Index
- November 2024 2
- October 2024 2
- August 2024 3
- July 2024 2
- June 2024 4
- May 2024 1
- April 2024 5
- March 2024 5
- February 2024 4
- January 2024 2
- December 2023 5
- November 2023 7
- October 2023 4
- September 2023 5
- August 2023 3
- July 2023 5
- June 2023 3
- May 2023 5
- April 2023 3
- March 2023 5
- February 2023 9
- December 2022 9
- November 2022 3
- October 2022 7
- September 2022 4
- August 2022 8
- July 2022 3
- June 2022 4
- May 2022 9
- April 2022 7
- March 2022 2
- February 2022 5
- December 2021 7
- November 2021 12
- October 2021 9
- September 2021 14
- August 2021 9
- July 2021 5
- June 2021 9
- May 2021 4
- April 2021 3
- March 2021 13
- February 2021 7
- December 2020 1
- November 2020 4
- October 2020 4
- September 2020 5
- August 2020 5
- July 2020 8
- June 2020 5
- May 2020 11
- April 2020 6
- March 2020 5
- February 2020 3
- January 2020 1
- December 2019 1
- November 2019 3
- October 2019 2
- September 2019 2
- August 2019 4
- July 2019 2
- June 2019 2
- May 2019 5
- April 2019 8
- March 2019 2
- February 2019 3
- December 2018 1
- November 2018 9
- October 2018 2
- September 2018 5
- August 2018 3
- July 2018 3
- June 2018 2
- May 2018 5
- April 2018 7
- March 2018 3
- February 2018 4
- December 2017 3
- November 2017 7
- October 2017 4
- September 2017 3
- August 2017 3
- July 2017 1
- June 2017 3
- May 2017 2
- April 2017 3
- March 2017 4
- February 2017 3
- January 2017 1
- December 2016 3
- November 2016 4
- October 2016 2
- September 2016 1
- August 2016 3
- July 2016 1
- June 2016 3
- May 2016 3
- April 2016 4
- March 2016 4
- February 2016 3
- January 2016 1
- December 2015 2
- November 2015 4
- October 2015 4
- September 2015 4
- August 2015 3
- July 2015 6
- June 2015 6
The Global South Critique of Liberal Constitutionalism
Theunis Roux
There have been two significant developments in comparative constitutional studies over the last decade. First, the rise of authoritarian populism in Europe and the Americas has produced an outpouring of literature on the causes of this phenomenon and what can be done to protect constitutional democracies against it. Second, after a long and mysterious delay, the Global South critique has finally arrived in the field – hauling it kicking and screaming into, not quite the twenty-first century, rather something more like the 1980s in the humanities after Edward Said’s intervention – with a lot of ground still to make up.
The What, Where and How of Comparative Constitutional Law, after the ‘Southern Turn’
Ben Schonthal
I fear this piece will be both less and more than what is asked for.
It will be less in that I do not consider myself an expert on Global South constitutionalism, but only an observer of one slice of it: the constitutional systems of South and Southeast Asia. And my true expertise is even narrower than that. My research explores what happens when national constitutions confront another major source of normativity in nation-states: the one that Hirschl and Shachar have called the ‘rival’ to constitutional law, namely religion.
My comments may be more than what’s asked for in that I tend to take a wider view of comparative constitutional law than is typical at public law conferences. I am a social scientist who writes about people and topics that don’t always find their way onto the pages of the International Journal of Constitutional Law. Yes, I consider the work of judges, lawmakers and national constitutions. But I also think about Buddhist monks, protest leaders and firewalkers. For me, they are also constitutional actors—or so I hope to persuade you.
So I offer these comments with humility.
Native title, s 51(xxxi) and conceptual carve-outs: why ‘inherent defeasibility’ is inherently unworkable
Lael K Weis
Like the other contributors to this series, I had the privilege of travelling to Darwin to attend the High Court hearings for Commonwealth v Yunupingu (D5/2023) on August 7th, 8th and 9th. This post offers a set of reflections based on attending those hearings. My focus is on the second ground of the appeal: namely, whether native title rights fall outside the scope of s 51(xxxi) because they are ‘inherently defeasible’. This issue consumed most of the parties’ time and attention in argument over these three days, and my instinct is that the appeal is likely to be determined on this basis.
Commonwealth v Yunupingu: A Constitutional Case Testing Commonwealth Liability for Aboriginal Dispossession
Sean Brennan
For more than 40 years, cases initiated by Aboriginal people have tested the interpretation of key constitutional provisions in Australia’s highest court. Since Mabo v Queensland (No 2), the High Court of Australia has also been instrumental in defining and confining possibilities for what First Nations groups might achieve through the vehicle of native title. That has included ten test cases on extinguishment law, the Yorta Yorta decision that set a high legal bar for proving continuity of connection, and the Timber Creek case about statutory rights to compensation for the extinguishment of native title.
Another such moment of reckoning has arrived for First Nations people, and for the High Court in the development of native title law and its interpretation of the Constitution.
On 9 August, the High Court sitting in Darwin reserved judgment on the answer to three questions of law posed on appeal in Commonwealth v Yunupingu. This blog post will explore what the litigation is about, how the parties argued their position in Darwin and why the case is significant.
Government Debt Collection After Robodebt
Lucinda O'Brien and Vivien Chen
The Royal Commission into the Robodebt Scheme found that the scheme was ‘disastrous’, a ‘crude and cruel mechanism’ that systematically harassed and ‘traumatised’ many thousands of social security recipients. Yet consumer advocates assert that lessons from Robodebt have not been learnt and several public agencies, including the agency responsible for social security, continue to use inappropriate methods to recover debts. Our new research, conducted with colleagues at Melbourne Law School, highlights significant and enduring deficiencies in the legal frameworks concerning debt collection by government agencies. We propose reforms to improve the debt collection practices of public agencies and reduce the risk that government debt collection will cause further serious and unjustifiable harm.
Legislation in the contemporary administrative state: an Australian perspective on Loper Bright
Lisa Burton Crawford
Recent decisions of the United States Supreme Court (SCOTUS) seem to have thrown the administrative state into crisis. A suite of recent cases have limited executive power in important ways—for example, by requiring executive action to be authorised by far more detailed legislation than has previously been required, or preventing executive agencies from performing certain functions that they have been allowed to in the past. These include the momentous decision in Loper Bright Enterprises v Raimondo, 603 US ___ (2024) — in which the SCOTUS effectively overturned the doctrine of Chevron deference.
Why should Australian public lawyers be interested in these developments? What light do they cast on our own legal system, and its particular strengths and pathologies? This post explores these issues, beginning with the complex legislative framework that sustains administrative government here.
The US Supreme Court overrules Chevron
Harry Sanderson
A majority of the United States Supreme Court in June abolished Chevron deference—a doctrine which had been a cornerstone of US administrative law for 40 years. The decision was long-anticipated, but is likely to be divisive. This post explains the Court’s reasoning in Loper Bright Enterprises v Raimondo, 603 US ___ (2024) and some of its possible implications for US and Australian administrative law.
Public Interest Disclosures Act 2022 (NSW): The good, the difficult and the confusing
Riley O’Keeffe
Maintaining integrity within the public sector is an integral component of responsible and good government. Theories of deviance suggest that as long as there are rules, there will be rule-breakers. Without proper or robust accountability mechanisms, public trust in government institutions would decline. Serious wrongdoing within the public sector, such as corruption, fraud or maladministration, is not within the public interest. Therefore, the inclination of public sector employees to speak up against serious wrongdoing is of vital importance in maintaining integrity within the public sector. The protections available for public sector whistleblowers must be strong enough to protect them from any possible detriment that may follow as a result of speaking up.
Public sector whistleblowing, also referred to as making a Public Interest Disclosure (‘PID’), is the action of identifying and reporting serious wrongdoing that affects the public sector. The Public Interest Disclosures Act 2022 (NSW) (‘new PID Act’) is one tool that can be used to ensure accountability and integrity are maintained within the public sector.
Bruce Lehrmann went back for his hat and lost his shirt: Costs in Australian litigation
Michael Legg and Felicity Bell
At the end of 2023 the Australian public were captivated by the defamation case of Bruce Lehrmann v Network Ten Pty Limited (Lehrmann v Network Ten). Mr Lehrmann alleged that he had been defamed by the reporting of an interview with former parliamentary staffer Brittany Higgins, who alleged that she had been raped at Parliament House in the early hours of 23 March 2019. Mr Lehrmann was not named but it was alleged that the reporting indicated that he was the perpetrator. Judgment was handed down in April 2024. Justice Lee of the Federal Court found, on the balance of probabilities, Mr Lehrmann raped Ms Higgins at Parliament House in 2019 and Mr Lehrmann’s claim failed (Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 (Lehrmann (Trial Judgment))).
Attention then switched to the question of costs. While the media has focused on the sheer level of costs — reporting that some of the many counsel involved in the proceedings charge upward of $8000 per day — the Lehrmann case illustrates the dual costs risks of litigating civil matters in Australia. These are that you may have to pay both your own lawyers, and the legal costs of your opponent/s if you are unsuccessful.
Improving Anti-Corruption Oversight: AB v IBAC and Beyond
William Partlett
In February 2024, the High Court held in AB v IBAC [2024] HCA 10 that individuals facing an ‘adverse’ finding in a report issued by Victoria’s anti-corruption commission, the Independent Broad-Based Anti-Corruption Commission (‘IBAC’), must be given broad access to the evidentiary material that justified that finding. In response, commentators have worried that this kind of ruling would damage the public interest, slowing down the release of anti-corruption reports while individuals litigate their ability to adequately respond to allegations.
Departmental advice in ministerial decision-making: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11
Janina Boughey
Anyone who has worked in a government department for more than a brief period knows how much ministers differ in their interest in their portfolio, diligence, and competence. The best ones (from a departmental staffer’s perspective, at least) are efficient, yet seem to be across all of the important details, which they might demonstrate by asking pointed questions which raise issues the department may not have considered. Others are quick, but one gets a sense that they might not have really engaged with issues in their portfolio—that they are simply doing a ‘tick and flick’. They might, for instance, require all briefings to be less than a page long which, on complex policy issues, means leaving out important details and nuances. Then there are ministers who pore laboriously over every detail of even the most mundane, routine decisions.
A federal Human Rights Act: Turning over a new leaf on climate litigation?
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.
What If?: LPDT v MICMSMA [2024] HCA 12
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.
Executive complaints against judges
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
The Weight of Expectations: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
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.
Juvenile offending, convictions and visa cancellation: Thornton and Lesianawai
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.
The Administrative Review Tribunal: A promising start
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.
An inquiry to investigate a problem creates new problems: The ACT Board of Inquiry into Criminal Justice
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.
A perspective from a jurisdiction without a doctrine of deference: Australia
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.