Lisa Burton Crawford, Elma Akand, Steefan Contractor and Scott Sisson

The ongoing inquiry of the Australian Law Reform Commission (ALRC) into Financial Services Legislation has cast new light on the complexity of legislation enacted by the Australian Parliament. This post aims to harness some of the ‘significant appetite and impetus for change’ that the ALRC identified with respect to federal financial services legislation for the broader phenomenon legislative complexity — which, we argue, has become systemic. This is demonstrated by data that we collected from the Federal Register of Legislation (FRL).

Tamara Tulich and Sarah Murray

On 7 September 2022, the High Court handed down its decision in Garlett v Western Australia [2022] HCA 30 (Garlett) upholding, by a 5:2 majority, the validity of item 34 of Sch 1 of Div 1 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) on the basis that it did not infringe the principle established in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 (Kable). The constitutional reasoning of the High Court in Garlett follows the pattern of Vella v Commissioner of Police (NSW) [2019] HCA 38 (Vella) and Minister for Home Affairs v Benbrika [2021] HCA 4 (Benbrika) with Gageler J and Gordon J dissenting from the rest of the Court in relation to the constitutionality of the risk assessment role being conferred on ‘courts of a State’. However, the case also provides important new insights on Chapter III of the Commonwealth Constitution (Ch III) in that a minority of the Court identified a role for the principle established in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] 176 CLR 1 (Lim) beyond the federal court context to state courts and, relatedly, new strands of convergence in Ch III jurisprudence. .

Sangeetha Pillai

Since 2015, Australia has had controversial citizenship-stripping laws as a part of its national security toolkit. These laws apply to dual citizens deemed to have repudiated their allegiance to Australia by virtue of their activities, and were first introduced in response to an increase in citizens travelling overseas to serve as ‘foreign fighters’ for organisations like Islamic State. In the recent decision of Alexander v Minister for Home Affairs [2022], the High Court found a provision of these laws, s 36B of the Australian Citizenship Act 2007, to be invalid in its entirety by a 6:1 majority (Steward J dissenting). For many, this was not an unexpected outcome: since the earliest days of Australia’s citizenship-stripping laws, multiple experts have warned that there was a likelihood that legislating for conduct-based denationalisation without conviction carried a serious risk of constitutional invalidity. This post unpacks key aspects of this decision. It focuses on the lines of agreement and disagreement amongst members of the Court with respect to the two issues that attracted the most consideration: whether s 36B infringed the separation of judicial power, and whether it fell within the scope of the naturalization and aliens power in s 51(xix) of the Constitution.

Brandon Smith

The High Court has once again entered the fray on the concept of materiality in Nathanson v Minister for Home Affairs [2022] HCA 26 (Nathanson). This time, the Court clarified the evidentiary burden imposed on a judicial review applicant to show the realistic possibility of a different outcome where there is a denial of a fair opportunity to be heard. While the appeal was allowed 6:0 from the majority judgment of the Full Court of the Federal Court (Steward and Jackson JJ), the High Court has again divided on the question of onus for materiality. While this decision arises in the context of decision-making under the Migration Act 1958 (Cth), it may have broader ramifications for judicial review applications involving issues of procedural fairness.

Anthony Gray

The highly emotive subject of animal cruelty, and the legality of attempts to bring its possible existence to the attention of the public, was considered in a recent High Court decision. Anti-cruelty activists challenged the validity of a surveillance law that could be applied to their activities. The High Court dismissed the activists’ challenge, but in so doing, significant differences on key issues were apparent. The case also demonstrates that for a constitutional challenge to legislation based on the implied freedom of political communication, the requirements of proportionality, as applied by the current High Court, can present very high, if not virtually insurmountable, hurdles to overcome.

Julian R Murphy and Shireen Morris

The federal government’s recent decision to discontinue the proceedings in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery, a high-profile case concerning the constitutional status of Aboriginal and Torres Strait Islander people, has attracted criticism from the shadow Attorney-General and some conservative legal commentators. These commentators argue that the decision not to pursue the appeal, in which the government challenged the earlier High Court decision in Love v Commonwealth [2020], risks politicising the Court.

In this post we argue that when the decision is seen in its proper context, the government’s change of position is justified. First, because it concerns matters of immigration policy and discretionary decision-making that are properly the province of the executive. Second, the government’s decision may help depolarise public debate on this issue, to facilitate more respectful and informed public deliberation in the lead up to a referendum on a constitutionally guaranteed First Nations Voice.

Theunis Roux

Australia is one of the few liberal democracies today without a judicially enforced bill of rights in its national constitution. Instead, the protection of rights is largely left to the democratic process. What does the US Supreme Court’s recent decision on the right to abortion in Dobbs v Jackson Women’s Health Organization 597 US ___ (2022) tell us about the virtues of this approach?

Megan Davis

The commitment by Prime Minister Anthony Albanese to a referendum in his first term of government puts lawyers squarely in the frame of influence over the coming years. Referendums are rare in this country. The last one was in 1999, and the last successful referendum was in 1977. Referendums are one occasion that Australians do want to hear the views of lawyers. And this is a serious responsibility for all of us.

Megan Davis

Stephen McDonald SC

Each of the paragraphs of s 75 and s 76 of the Commonwealth Constitution identifies a class of matters with a federal aspect. The scheme of the Constitution is that matters of those kinds can only be determined in the exercise of judicial power by ‘courts’. Section 77 of the Constitution enables the Commonwealth Parliament to determine the extent to which judicial power in such matters is exercised by the High Court, other federal courts, and state courts.

State Parliaments may create tribunals which are not ‘courts’, and may confer upon such tribunals aspects of both the administrative power and the judicial power of the state. However, the power of state Parliaments with respect to state non-court tribunals does not extend to investing them with judicial power to decide matters of the kinds identified in ss 75 and 76 of the Constitution. A general grant of jurisdiction to a non-court tribunal under state law will thus be construed as excluding jurisdiction over matters of those kinds.

These principles were established by the High Court’s decision in Burns v Corbett [2018] HCA 15; 265 CLR 304. Burns v Corbett had involved a claim in a state non-court tribunal between residents of different states – the subject matter identified in s 75(iv). The recent decision of Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 concerned the application of these principles in a different context: it concerned a claim that was said to give rise to the kind of federal matters identified in sub-ss 76(i) and 76(ii) of the Constitution. This post will discuss the decision in Citta Hobart, before turning to the practical problems posed by the substantial limits – confirmed by these two cases – on state legislative power in respect of the jurisdiction of state non-court tribunals.

Lael K. Weis

With the federal election just a few weeks away, the next Commonwealth Government may be tasked with bringing forward one or two major proposals for constitutional change: the proposal for a constitutionalised First Nations Voice to Parliament set out in the Uluru Statement from the Heart, and the proposal for Australia to be a republic set out in the Australian Republican Movement’s Australian Choice Model.

Kieran Pender

A federal election is imminent. Following the Mediscare scandal of 2016 and the death tax saga of 2019, it is perhaps only a matter of time before a major mis- or dis-information campaign hits the 2022 election. Attention will inevitably turn to a regulatory response. One frequently-cited proposal is a truth in political advertising law, which would penalise false or misleading political advertising. Such laws currently exist in South Australia and the Australian Capital Territory. Last year, independent MP Zali Steggall proposed a federal equivalent via a private member’s Bill.

Dane Luo

Following a ‘march of structured proportionality’ globally, the High Court adopted, in the 2015 McCloy v New South Wales (2015) decision, the framework of ‘suitability’, ‘necessity’ and ‘adequacy in the balance’ to a legitimate end to assess the proportionality of laws that burden the implied freedom of political communication (implied freedom).

Samuel White

In January 2020, the Prime Minister of Australia announced that the Australian Defence Force (ADF) would move from ‘respond to request’ to ‘move forward and integrate’, signalling increased domestic deployments in response to the devastating bushfires over the summer of 2019/2020. Two months later, Operation COVID-19 Assist was established and constituted the largest deployment – domestic or external - of the ADF since World War Two.

Dane Luo

Last month, the Australian Republic Movement (ARM) published the Australian Choice Model – a model for a Australian republic where the Head of State would be elected by the Australian people every five years from a pool of candidates nominated by the Commonwealth, state and territory Parliaments.

Paul Kildea

On 20 December 2021, the House of Representatives Standing Committee on Social Policy and Legal Affairs completed its inquiry into constitutional reform and referendums and published an anticipated Report. The Report makes 10 recommendations …

Guy Baldwin

Since the shift in focus for supporting Commonwealth migration legislation from the ‘immigration’ power under s 51(xxvii) of the Constitution to the ‘aliens’ power under s 51(xix) in the 1980s, there has been a great deal of litigation before the High Court about the scope of s 51(xix). Perhaps the most influential judicial dicta …

Jonathan Bonnitcha

The High Court’s decisions in Mineralogy v WA and Palmer v WA end the dispute between Mineralogy/Clive Palmer and the Western Australian government as a matter of Australian law. It is not, however, the end of the dispute. A Singaporean-incorporated entity in Palmer’s corporate group is now poised to commence international arbitration. …

Anne Twomey

One of the difficulties in understanding and applying manner and form constraints on state legislative power is that there is little jurisprudence on the subject and what exists is often unclear, poorly reasoned and in some cases just wrong. That is why the manner and form arguments in Mineralogy …

The Hon William Gummow AC

When the Judiciary Committee of the 1891 National Australasian Convention, under the Chairmanship of Andrew Inglis Clark, prepared its report (which is reproduced in Judicial Federalism in Australia: History, Theory, Doctrine and Practice at pp 208 to 210), there were in operation in what today could be identified …