Index
- 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
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.
ART Appointments: Is this the start of something beautiful?
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.
The exclusion of aliens under federal law: Analysing the impact of NZYQ, Alexander and Benbrika
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).
NZYQ: A new style of unanimous judgment for the High Court of Australia
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.
‘For every wrong, there is a remedy’: the availability of mandamus against federal court judges and other alternatives to judicial injustice
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.
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.
The Trump Card: ENT19 v Minister for Home Affairs [2023] HCA 18
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.
Gremlins, Borgs, and judicial impartiality in multi-member courts: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
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).
The Constitutional Relationships Between 'Just Terms' Acquisition, Territories, and Native Title: Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia
Aaron Moss
On 22 May 2023, the Full Court of the Federal Court of Australia (Mortimer CJ, Moshinsky and Banks-Smith JJ) delivered judgment in Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75 (Yunupingu), a decision regarding the intersection between native title and constitutional law.
This post explores aspects of the Court's decision, and outlines their significance for public lawyers more generally.
An urgent hearing of what became a ‘non-urgent case’: Unions NSW v New South Wales [2023] HCA 4
Josh Gibson
On 15 February 2023, the High Court (the Court) delivered its judgment in Unions NSW v New South Wales [2023] HCA 4 (Unions NSW). Unions NSW was brought by way of special case in the original jurisdiction of the Court. Two key provisions of the Electoral Funding Act 2018 (NSW) (the EF Act), sections 29(11) and 35, were challenged on the ground they impermissibly burdened the implied freedom of communication (the implied freedom). Two weeks before the hearing of Unions NSW, the New South Wales (NSW) Parliament passed the Electoral Legislation Amendment Bill 2022, which repealed section 35 of the EF Act. This raised significant questions about whether a plaintiff retains standing to challenge a provision if that provision is repealed after the case commences.
Retrospective Response: Pearson v Minister for Home Affairs
Sanmati Verma
In its important judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203, the Full Court of the Federal Court found that an aggregate sentence of imprisonment did not constitute a single ‘term of imprisonment for 12 months or more,’ and therefore did not attract the operation of the mandatory visa cancellation power at s 501(3A) of the Migration Act 1958 (Cth).
This post discusses the Full Court’s decision in Pearson, the immediate legislative response by way of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), and the implications of that response – particularly for the people taken back into immigration detention as a result.
Unlawful failure to remove extends lawful detention: A critique of the decision in AJL20
Stephen McDonald
In this post, I offer a critique of one aspect of the reasoning of the majority judges in the Commonwealth v AJL20 (‘AJL20’), where it was held that AJL20’s detention was, at all times, lawfully permitted and required by the Migration Act, notwithstanding the failure of Commonwealth officers to comply with the duty to remove him as soon as reasonably practicable.
Essentially, the majority reasoning permits and requires detention by the executive to continue, even though the purposes for which detention can occur are constitutionally limited, and even though the detention exceeds what is reasonably necessary to give effect to the permissible purposes established by the Migration Act. I argue that, in construing the Migration Act in this way, the majority in AJL20 have implicitly given it an operation that authorises and requires continuing executive detention in excess of constitutional limits if officers of the executive have failed to comply with other duties imposed on them by the Act.
Worth a thousand words? Videos and the implied freedom of political communication in Farm Transparency v NSW
Henry Palmerlee
Justice Gageler’s dissenting judgement in the recent case of Farm Transparency International Ltd v New South Wales [2022] HCA 23 includes an insightful explanation of why video-based political communication has attracted consistent judicial interest. His Honour argued that two unique characteristics of visual imagery – its persuasiveness and inherent veracity – make it a potent medium for political communication in the modern age.
In this piece, I consider Gageler J’s reasoning in the context of recent advances in video manipulation through artificial intelligence, specifically deepfakes.
Proportionality and Facts in Constitutional Adjudication book forum - Author’s reply
Anne Carter
I am honoured and humbled to have such an eminent panel engage with my book, Proportionality and Facts in Constitutional Adjudication. As I will explain below, the motivations for this book stemmed in part from my time as a practising government lawyer, so I’m particularly delighted that this book forum includes two practitioners of public law, along with a leading comparative constitutional law scholar. Each panellist has engaged thoughtfully with the substance of the book and has raised a number of distinct issues. In this post I will explain the motivations behind the book and its main themes and findings, as well as responding to the helpful contributions from the three panellists. In doing so I will sketch some future directions about the ongoing conversation about facts in proportionality reasoning (and public law more generally).
The Factual Questions in Legitimacy Testing - Proportionality and Facts in Constitutional Adjudication book forum
Samuel Murray
Dr Anne Carter’s Proportionality and Facts in Constitutional Adjudication is a timely and welcome addition to the perpetually growing commentary concerning the advent of structured proportionality in the High Court’s jurisprudence of the implied freedom of political communication.
As Dr Carter notes throughout the book , a bare majority of the High Court in McCloy v New South Wales (2015) 257 CLR 178 dramatically changed the approach to testing proportionality in respect of the implied freedom by adopting a structured, multi-faceted approach to proportionality testing, effectively in lieu of the prior verbal formulation from Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. given how extensively it changed the approach to the implied freedom. McCloy heralded a new wave of both academic commentary and case-law about the merits and application of the new formulation. This book does an excellent job at building out the former and offering guidance for the latter in respect of the use of facts in the new world of implied freedom proportionality testing.
Challenges for State Parties Engaged in Proportionality Litigation - Proportionality and Facts in Constitutional Adjudication book forum
Mike Wait
Dr Anne Carter’s new book, Proportionality and Facts in Constitutional Adjudication, makes a substantial and timely contribution to our understanding of a range of issues emerging in the burgeoning field of proportionality litigation. The focus of the book is on sources of evidence, burdens of proof and aspects of procedure. However, the book’s real strength is that it locates what are ultimately practical litigious issues within a sophisticated account of the evolution of the implied freedom of political communication in Australia and an appreciation of comparative approaches drawn from jurisdictions which have long wrestled with these issues.
The Art and (Social) Science of Proportionality and Facts in Constitutional Adjudication - Proportionality and Facts in Constitutional Adjudication book forum
Rosalind Dixon
Proportionality analysis is ultimately deeply fact dependent. It depends on an assessment of the suitability of laws for achieving their purposes – a question of basic logic and social fact. It further requires an assessment of whether a law is necessary, or could achieve its objective through some hypothetical, less restrictive alternative, and is 'adequate in the balance', namely achieves greater benefits than costs, from a constitutional perspective.
Anne Carter notes in her important new book that these are all arguably 'legislative' rather than 'adjudicative' facts, but also distinct in nature and scope. As the High Court has indicated, each calls for different sources of evidence, and procedures and rules governing their use. Yet to date, the constitutional law-fact nexus has attracted only limited attention in Australia. Carter’s book therefore makes an important contribution to the literature on this question. It provides a nuanced survey of the procedural challenges and complexities facing the High Court in this context, and offers tentative, well-reasoned potential solutions, informed by comparative experience.