Index
- November 2024 4
- October 2024 2
- August 2024 3
- July 2024 2
- June 2024 4
- May 2024 1
- April 2024 5
- March 2024 5
- February 2024 4
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- December 2023 5
- November 2023 7
- October 2023 4
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- August 2023 3
- July 2023 5
- June 2023 3
- May 2023 5
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- 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
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- July 2021 5
- June 2021 9
- May 2021 4
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- March 2021 13
- February 2021 7
- December 2020 1
- November 2020 4
- October 2020 4
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- August 2020 5
- July 2020 8
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- May 2020 11
- April 2020 6
- March 2020 5
- February 2020 3
- January 2020 1
- December 2019 1
- November 2019 3
- October 2019 2
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- August 2019 4
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- May 2019 5
- April 2019 8
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- December 2018 1
- November 2018 9
- October 2018 2
- September 2018 5
- August 2018 3
- July 2018 3
- June 2018 2
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- 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
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- 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
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- 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
Section 80 and the Territories: Vunilagi v The Queen [2023] HCA 24
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.
Protest bans in NSW and South Australia - are they constitutionally valid?
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?
Caesar judging Caesar: lay-person membership of a federal judicial commission
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.
Structure over Text: the High Court splits on constitutional implications
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.