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.

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.

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).

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.

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.

Guy Baldwin

The growth of structured proportionality in recent years has been a much remarked upon feature of global constitutionalism. Even supporters of proportionality describe how it ‘exhibits a viral quality, spreading relatively quickly from one jurisdiction to another’ – not, exactly, an image of careful adaptation. Originating in Germany, proportionality spread to Australian constitutional law in respect of the implied freedom of political communication in the case of McCloy in 2015, and in respect of s 92 in the case of Palmer in 2021 (after previously being considered in earlier cases). However, Gageler J and Gordon J have maintained principled opposition to the use of structured proportionality in these and other cases. Gageler J became Chief Justice of Australia on 6 November 2023. Does that change things?

In this blog, I consider the possible significance of the new Chief Justice to the proportionality debate, before explaining why I consider that proportionality should be abandoned in Australian constitutional law, and suggesting an alternative approach.

Joe McIntyre

What is a Court? What does a Court do? What are we left with when we strip away the theatre and ceremony, the grand buildings and reams of paper, the gladiatorial intellectual sparring, and careful deliberations? We are so focused on the processes and outputs of courts that we rarely stop to reflect on the fundamental purposes they serve, and the limits that these purposes impose on them.

The peccadillos of the Australian Constitution (the autochthonous expedient, structural implications, the US/UK hybrid etc) means that we have a particularly active jurisprudence on the nature, limits and implication of judicial power. In its latest contribution to this oeuvre, AZC20 v MICMSMA, the High Court grappled once more with the concept of ‘matter’ in the context of an appeal rendered moot by intervening events. In an 4-1 decision, the Court held that the Full Court of the Federal Court lacked jurisdiction to hear an appeal where events meant that there was no longer any active dispute.

Bharan Narula

Is a trial on indictment for an offence contrary to a law of a self-governing territory a ‘law of the Commonwealth’ for the purpose of s 80 of the Constitution? To the extent that R v Bernasconi (1915) (Bernasconi) has been understood to decide that the power in s 122 is not subject to the requirements of s 80, will a case likely need to involve a trial on indictment of an offence enacted by the Commonwealth Parliament under s 122 for a majority to decide whether Bernasconi should be distinguished or re-opened? These questions were considered in Vunilagi v The Queen [2023] HCA 24.

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.

Brenda Tronson

In Australia, we can generally display our political opinions in public without fear of penalty, government persecution or violence. The High Court confirmed in the mid 1990s that our constitution contains an implied freedom of political communication, which is central to our representative democracy. The freedom is not absolute, and some regulation of protests is permitted.

But in 2022 and 2023, two Australian states (NSW and South Australia) passed laws which banned certain forms of protest. Do those laws go too far?

Jane Hall

Henry Palmerlee

This post first briefly summarises the case for a federal judicial commission, a proposal which has been mooted for decades but has only recently gathered broad support from the legal sector. It then argues that, to perform its role of maintaining public confidence in the judiciary, the commission should include lay-people as members. (In this post, the term ‘lay-person’ refers to someone disconnected from the three branches of government – for example, a legal practitioner, an eminent community figure, or simply a member of the public. The operative aspect of lay-personhood is that a person does not hold a role within the legislature, executive or judiciary, and has not held one in the past.) Finally, constitutional concerns regarding the inclusion of non-judicial members are addressed.

The post concludes that, while the inclusion of lay-members in a commission may raise unique constitutional concerns, these concerns are unlikely to pose an insurmountable obstacle so long as suitable qualification requirements are implemented for lay-members.

Jerry To

The recent judgment of the Federal Court of Australia in Smart Education Program Pty Ltd (in liq) v CLGC Australia Pty Ltd [2023] FCA 826 (Smart Education) has raised much consternation. At first glance, the case appears to be a run-of-the-mill contractual dispute. However, the source of controversy arises from an unexpected source, which concerned not the parties but the conduct of the judges themselves.

Smart Education prompts interesting questions about whether there is any scope in Australian public law to provide relief to the parties in circumstances of undue judicial delay. This article will focus on one such possibility: whether the High Court of Australia could have issued a writ of mandamus compelling the Federal Court to hand down its judgment in a timely manner. This, in turn, raises complex questions going to the very heart of the operation of the federal judiciary and the High Court’s ability to regulate their conduct.

Harry Sanderson

Many foundational principles of Australian public law arise from constitutional implications, to the extent that that within the Constitution ‘much of the greatest importance is implied’ (McGraw-Hinds (Aust) Pty Ltd v Smith at 668 (Murphy J)). In Zurich Insurance Company Ltd & Anor v Koper & Anor [2023] HCA 25 (Zurich), the High Court unanimously rejected an argument identifying a novel constitutional implication. The Court was divided, however, on the proper approach to drawing implications within the Constitution. That division maps onto longstanding debates regarding the proper approach to constitutional interpretation.

This post considers the different approach taken by each judgment on the point of implications in light of the dominant methodology of textualism, and questions the distinction between text and structure which informs their reasoning.