Index
- November 2024 5
- October 2024 2
- August 2024 3
- July 2024 2
- June 2024 4
- May 2024 1
- 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
Public Law Events Roundup July 2022
Welcome to the July edition of the AUSPUBLAW Australian Public Law Events Roundup.
Is Climate Change Justiciable? Politics and Policy in Minister for the Environment v Sharma
Zoe Bush
On 15 March 2022, the Full Court of the Federal Court (Full Court) unanimously reversed Bromberg J’s finding that the Commonwealth Minister for the Environment (Minister) owed all Australian children a duty of care to avoid causing personal injury or death arising from the emission of greenhouse gases when exercising her powers to approve a coal mine extension under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
Anti-corruption bodies in 2021 and their impact on the 2022 elections
Ryan Feuerherdt
Heading into the final weeks of the 2022 federal election campaign, it was difficult to avoid the extensive discussion devoted to the issue of government accountability and integrity.
The failure of Scott Morrison’s Coalition government to implement an anti-corruption body was successfully targeted by the Australian Labor Party, the Greens, as well as the various ‘teal independents’, throughout the campaign.
iVote, the 2021 NSW Government Elections and the Future of Internet Voting
Narelle Miragliotta and Sarah Murray
In January 2022, the NSW Electoral Commission (NSWEC) petitioned the NSW Supreme Court to void the outcome in three local council elections held on December 4 the previous year. The basis for the petition was not one of the more familiar triggers. As the counsel for one of the defendants in the case observed: ‘This is not a case where there was rampant widespread voter fraud, or lost ballot boxes, or ballot stuffing. There were no riots [or] outbreak of warfare that suspended an election’. The problem in this instance was a system capacity issue. The basis of the petition launched by the NSWEC was a ‘defect or irregularity’ in the electronic iVote system.
Public Law Events Roundup June 2022
Welcome to the June edition of the AUSPUBLAW Australian Public Law Events Roundup.
Justice deferred: Plaintiff M1/2021 v Minister for Home Affairs
Chris Honnery
‘A sentence of death.’ The title of Edelman J’s dissenting judgment in Plaintiff M1/2021 v Minister for Home Affairs (M1) captures the stakes of visa cancellation matters in which a former visa holder claims to face serious harm in their country of origin.
In M1, the High Court addressed whether a decision maker is required to consider claims that raise a potential breach of Australia's international nonrefoulement obligations when determining if there is ‘another reason’ to revoke a mandatory visa cancellation under s 501CA of the Migration Act 1958 (Cth) (the Act). By majority, the High Court held that it is permissible to ‘defer’ consideration of non-refoulement claims raised in a request to revoke a visa cancellation on the basis that these claims will be assessed in a protection visa application.
A First Nations Voice, Constitutional Law Reform, and the Responsibility of Lawyers
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.
“I’m sorry, I can’t hear you … my jurisdiction keeps dropping out” Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
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.
Call for Expressions of Interest
Call for Expressions of Interest to join the editorial team of AUSPUBLAW.
The urgent need for Commonwealth grants reform
Catherine Williams
Upwards of $55 billion has been spent on Commonwealth grants programs since mid-2018, when the current Prime Minister came to power. In that period, there has been a series of findings of maladministration – and worse – by the Australian National Audit Office (ANAO) in respect of Commonwealth grants programs, giving rise to an urgent need for reform in this area.
Aboriginal and Torres Strait Islander Peoples, Law Reform and the Return of the States
Dani Larkin, Harry Hobbs, Dylan Lino and Amy Maguire
In the wake of the historic 1967 referendum extending the Commonwealth Parliament’s legislative power in Indigenous affairs, Prime Minister Harold Holt made a prediction to his Cabinet that the electorate would undoubtedly look increasingly to the Commonwealth Government as the centre of policy and responsibility regarding Aboriginal and Torres Strait Islander affairs. That prediction proved true.
Originalism and Constitutional Amendment
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.
Public Law Events Roundup May 2022
Welcome to the May edition of the AUSPUBLAW Australian Public Law Events Roundup.
Workplace Reforms in Courts and Parliaments: Some Guiding Principles
Gabrielle Appelby and Prabha Nanda
In the four years since the global #MeToo movement, misconduct in the workplace – and in particular sexual harassment, bullying and discrimination – continue to dominate headlines. The last two years has seen serious allegations and findings of sexual misconduct emerge in the workplaces of the courts, and Australian Parliament House. This has led to a series of workplace reviews, including an internal High Court review that led to a new workplace conduct policy, an Independent Review into Commonwealth Parliamentary Workplaces (often referred to as the Jenkins Review, resulting in the Set the Standard Report), an ongoing Independent Review into Bullying, Harassment and Sexual Misconduct in NSW Parliament, the South Australian Equal Opportunity Commission’s Review of Harassment in the South Australian Parliament Workplace, an ongoing Tasmanian review into parliamentary practices and procedures to support workplace culture by the Tasmanian Anti-Discrimination Commissioner, and an independent review into sexual harassment in Victorian courts and the VCAT (Victorian Courts Review).
Transforming the culture of Parliament House
Margaret Thornton
The Jenkins Review into Commonwealth Parliamentary Workplaces was published on 30 November 2021: Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces. This post provides the context for the report and an explanation of its findings and recommendations, together with the responses by the Australian Government to date.
Are Truth in Political Advertising Laws Constitutional?
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.
The ‘March of Structured Proportionality’: The Future of Rights and Freedoms in Australian Constitutional Law
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).
How to draft a workable Religious Discrimination Bill
Luke Beck
With the recent implosion of the Morrison Government’s Religious Discrimination Bill and both major parties continuing to promise to legislate in this space in future, it is timely to think about how to draft a workable Religious Discrimination Bill.
The Government’s Bill was controversial because it included provisions overriding existing anti-discrimination protections to enable a range of religiously-motivated conduct (such as refusing to hire gay people or making disparaging comments about disabled people in healthcare settings) that would otherwise be prohibited. This post considers some key issues of process and constitutional substance, and concludes with a proposal for a proper Australian Law Reform Commission inquiry into the issue.
What’s in a Name? Political Party Names and Ruddick v Commonwealth
Graeme Orr
In late 2021, the Australian government enacted various amendments affecting the registration of political parties, with the support of the Labor opposition. The oddest, if not most contentious, aspect of the reforms is a rule allowing established parties to effectively “bags” key words in their names. Words such as ‘liberal’, ‘labo(u)r’, ‘greens’ – even ‘Christian’ – and grammatical variants are now controlled by the oldest registered party with that word in its name. (Certain words, such as ‘democratic’ or ‘country’, place names like ‘Australia’ and ‘collective nouns for people’ are not so controlled.)