Welcome to the August edition of the AUSPUBLAW Australian Public Law Events Roundup.

Helen Irving

Alexander v Minister for Home Affairs [2022] HCA 19 (Alexander), handed down by the High Court on 8 June this year, involved a challenge to section 36B of the Australian Citizenship Act 2007 (as amended in 2020) (the Citizenship Act), which purported to empower the Minister to strip citizenship from an Australian dual national who, ‘by their conduct, demonstrates that the person has repudiated their allegiance to Australia’ and if the Minister is satisfied that ‘it would be contrary to the public interest for the person to remain an Australian citizen.’ The revocation of citizenship, the Court concluded, was punitive. Punishment for unlawful conduct, as it held in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992], is a judicial function, made exclusive to the federal courts under Chapter III of the Constitution. Citizenship revocation, imposed by the executive, therefore breaches the constitutional separation of powers. Section 36B was accordingly invalid, and Mr Alexander, an Australian-Turkish dual national whose citizenship had been revoked after he travelled to Syria (and following an adverse ASIO report), remained an Australian citizen.

Theunis Roux

Australia is one of the few liberal democracies today without a judicially enforced bill of rights in its national constitution. Instead, the protection of rights is largely left to the democratic process. What does the US Supreme Court’s recent decision on the right to abortion in Dobbs v Jackson Women’s Health Organization 597 US ___ (2022) tell us about the virtues of this approach?

Welcome to the July edition of the AUSPUBLAW Australian Public Law Events Roundup.

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).

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.

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.

Welcome to the June edition of the AUSPUBLAW Australian Public Law Events Roundup.

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.

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.

Megan Davis

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 to join the editorial team of AUSPUBLAW.

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.

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.

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.

Welcome to the May edition of the AUSPUBLAW Australian Public Law Events Roundup.

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).

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.

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.