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.

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.

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.

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.

Lucas Lixinski

Luke Beck

Michael Douglas

Douglas McDonald-Norman

‘The national interest’ is a broad concept, and ‘largely a political question’. Decision-makers ordinarily enjoy considerable discretion in deciding what is and is not in ‘the national interest’. But in its recent judgment in ENT19 v Minister for Home Affairs [2023] HCA 18, by a narrow majority of 4 to 3, the High Court identified and reiterated important limits to what factors may be relevant in deciding whether it is in the ‘national interest’ to grant a protection visa.

This post will set out the factual and procedural history to this matter and analyse the majority’s reasoning in ENT19. This post will then examine the potential implications of this judgment for the scope of the term ‘national interest’, and for ENT19 himself.

Sarah Fulton and Geneviève Murray

Judicial impartiality — and within that, an absence of bias — is at the heart of the Australian judicial system and central to how judges see themselves. But while serving and retired judges of the High Court have had a lot to say about when judicial bias arises, they have (with some notable exceptions, as noted in the ALRC Judicial Impartiality Report, p 234) said little publicly about how such matters should be raised with and considered by the courts. Until now.

In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (‘QYFM’), judges of the High Court not only clarified the law on apprehended bias as it applies to a judge who was previously involved in the prosecution of a party, but also took the opportunity to set out their views on the processes for determining issues of bias raised in multi-member courts (such as Courts of Appeal, Full Courts, or the High Court itself).