Alysia Blackham

It is an incredible privilege to have such an esteemed panel reflect on this book. Reforming Age Discrimination Law is, at its heart, a call to action. It maps the many ways in which individual enforcement of age discrimination law is struggling to achieve meaningful change. It puts forward a series of reforms to improve the individual enforcement model, strengthen positive equality duties, bolster the roles of statutory equality agencies, and enhance collective enforcement. This is an ambitious programme of reform, that requires action by governments, employers, unions, statutory agencies, legal practitioners, legal educators, courts, and judges. I argue, too, that these reforms work best together; they are mutually supportive and reinforcing, just as these forms of enforcement work best together.

The Hon Anthony North KC

Congratulations to Alysia Blackham on a very high-quality contribution to the learning in this area. I was particularly impressed by the logic and coherence in the development of the argument.

There are many issues raised in this book that capture my interest. I have chosen two, each of which reflects the different phases of my career, first as a judge, and then as a law reformer. Improvements here would make a significant difference to age discrimination law. The first concerns the reverse onus of proof, and the second concerns the enforcement of positive duties.

Oanh Tran

When we think about age discrimination, we think and talk about how it affects older people, but it equally affects young people. The law itself is discriminatory for young people. Alysia Blackham’s new book both explains the problems, and proffers solutions. Blackham's book considers the framework of ‘naming, blaming and claiming’ to explain how disputes emerge. In this post, I discuss some relevant examples where young workers name and blame, and discuss why they do not claim. I also comment on a few of Blackham’s suggested reforms.

Andrew Byrnes

At the outset let me congratulate Associate Professor Blackham on the publication of what is a major contribution to the literature on discrimination law and age discrimination. There is, of course, a considerable body of literature examining the limitations of the legal frameworks that we have adopted in Australia and comparable jurisdictions to address different forms of discrimination. However, this book makes important and innovative contributions on the empirical, theoretical and policy levels: it should stimulate deep reflection and policy change.

Rosalind Croucher

This post was prompted by remarks I made as part of a panel discussion to mark the publication of Associate Professor Alysia Blackham’s new book, Reforming Age Discrimination Law: Beyond Individual Enforcement, published this year by Oxford University Press in their prestigious Oxford Labour Law series.

First, I should say, that this is a fine book. Even before you get to page 1 you find a set of endorsements that would make any author blush. Phrases like ‘must read’ and ‘”go-to” resource’, ‘groundbreaking’, and ‘outstanding contribution’ leap off the page. This is in addition to the usual accolades you would expect for an academic book, like ‘meticulous research’, ‘scrupulous comparative doctrinal research with meticulous empirical case studies’, ‘sophisticated account’, ‘nuanced understanding’, ‘impressive socio-legal study’. It is, as Professor Colm O’Cinneide, acclaims, ‘a remarkably good book’.

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

Sangeetha Pillai

Since 2015, Australia has had controversial citizenship-stripping laws as a part of its national security toolkit. These laws apply to dual citizens deemed to have repudiated their allegiance to Australia by virtue of their activities, and were first introduced in response to an increase in citizens travelling overseas to serve as ‘foreign fighters’ for organisations like Islamic State. In the recent decision of Alexander v Minister for Home Affairs [2022], the High Court found a provision of these laws, s 36B of the Australian Citizenship Act 2007, to be invalid in its entirety by a 6:1 majority (Steward J dissenting). For many, this was not an unexpected outcome: since the earliest days of Australia’s citizenship-stripping laws, multiple experts have warned that there was a likelihood that legislating for conduct-based denationalisation without conviction carried a serious risk of constitutional invalidity. This post unpacks key aspects of this decision. It focuses on the lines of agreement and disagreement amongst members of the Court with respect to the two issues that attracted the most consideration: whether s 36B infringed the separation of judicial power, and whether it fell within the scope of the naturalization and aliens power in s 51(xix) of the Constitution.

Brandon Smith

The High Court has once again entered the fray on the concept of materiality in Nathanson v Minister for Home Affairs [2022] HCA 26 (Nathanson). This time, the Court clarified the evidentiary burden imposed on a judicial review applicant to show the realistic possibility of a different outcome where there is a denial of a fair opportunity to be heard. While the appeal was allowed 6:0 from the majority judgment of the Full Court of the Federal Court (Steward and Jackson JJ), the High Court has again divided on the question of onus for materiality. While this decision arises in the context of decision-making under the Migration Act 1958 (Cth), it may have broader ramifications for judicial review applications involving issues of procedural fairness.

Anthony Gray

The highly emotive subject of animal cruelty, and the legality of attempts to bring its possible existence to the attention of the public, was considered in a recent High Court decision. Anti-cruelty activists challenged the validity of a surveillance law that could be applied to their activities. The High Court dismissed the activists’ challenge, but in so doing, significant differences on key issues were apparent. The case also demonstrates that for a constitutional challenge to legislation based on the implied freedom of political communication, the requirements of proportionality, as applied by the current High Court, can present very high, if not virtually insurmountable, hurdles to overcome.

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

Daniel Ghezelbash, Keyvan Dorostkar, Saul Wodak and Robert Ross

In the age of ‘big data’, governments and corporations are using data analytics to evaluate and improve programs and services across a wide range of areas. The courts have been relatively immune to this trend — but the tide may finally be turning.

The recent Australian Law Reform Commission (ALRC) Report on judicial impartiality includes ground-breaking findings and recommendations on how data can be used to promote judicial impartiality and public confidence in the legal system. The Report’s 14 recommendations draw on research from the fields of law and social science to formulate strategies to address these issues at an institutional level. A number of these recommendations focus on the role data can play in promoting transparency and judicial impartiality. This includes collecting data on court users’ subjective perceptions of procedural justice (recommendation 12) and collecting and reporting statistics regarding the diversity of the federal judiciary (recommendation 8).

Gabrielle Appleby

The Australian Law Reform Commission’s (ALRC) recent Report on judicial impartiality and the law on bias, Without Fear or Favour, makes important connections between a number of much needed regulatory reforms and the foundational judicial value of impartiality. These include connecting impartiality to judicial appointments, and to the structure and reporting of the training and ongoing professional development of judges. The ALRC has also recommended that the government establish a federal judicial commission to create an alternative mechanism for raising allegations of bias. In the ALRC’s survey of lawyers this was ranked as the most important reform that could be achieved to maintain public confidence in judicial impartiality. The Attorney-General, Mark Dreyfus QC, has indicated that he supports such a proposal.

Jessica Kerr

‘Judges need better education’. Seeing those words headlining Gabrielle Appleby’s explainer of the Australian Law Reform Commission’s (ALRC) ground-breaking Report was a proud moment for those of us championing judicial education as a ‘vitally important form of regulation’. While education is a recurring theme in what the ALRC calls the ‘institutional architecture’ of impartial judging, two related recommendations in the category of ‘institutional supports and safeguards’ are specifically directed to investment in this area.

Joe McIntyre

All law is politics. But law is not just politics. At its best, it can rise above: challenge and engage us to be better, to take responsibility and guide our society. Of course, it can collapse in the other direction: be reduced a tawdry imposition of blind power by the powerful.

Perhaps nowhere is this clearer than in the exercise of the judicial function, where that anguish of choice by the very human judge – replete with biases, personalities and integrity - can so profoundly shape the evolution of the law, and indeed the society from which it emerges.

The interplay between politics, partisanship and judging has been on stark display globally over the last few years. From Miller No 2 [2019] to Dobbs [2022], the role of judges (collectively and individually) in shaping law and society has rarely been more apparent. Similarly apparent has been our vulnerability to the quality of individual judge and their commitment to judicial values.

Despite their glamour, each case each represents only a fleeting moment. While it is easy to focus purely on the flash of a decision, it is sometimes critical to revel in the larger picture of the operation of the judicial system as a whole.

Julian R Murphy and Shireen Morris

The federal government’s recent decision to discontinue the proceedings in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery, a high-profile case concerning the constitutional status of Aboriginal and Torres Strait Islander people, has attracted criticism from the shadow Attorney-General and some conservative legal commentators. These commentators argue that the decision not to pursue the appeal, in which the government challenged the earlier High Court decision in Love v Commonwealth [2020], risks politicising the Court.

In this post we argue that when the decision is seen in its proper context, the government’s change of position is justified. First, because it concerns matters of immigration policy and discretionary decision-making that are properly the province of the executive. Second, the government’s decision may help depolarise public debate on this issue, to facilitate more respectful and informed public deliberation in the lead up to a referendum on a constitutionally guaranteed First Nations Voice.

Andrew Lynch

The Australian Law Reform Commission (ALRC) is to be commended for its searching and inclusive approach to the topic of judicial bias in the recently released report of its Inquiry into Judicial Impartiality (Inquiry). The ALRC has not shied away from specific structural dimensions of the Australian court system that go to the impartiality of its judges and the confidence that the public must be able to repose in them if the courts are to fulfil their constitutional function.

A striking example of this is the Report’s substantial discussion and unambiguous recommendations in respect of judicial appointments reform. This is a topic that some may not have anticipated as one to emerge from the review. In this post, I consider the inclusion of judicial appointments and the significance of the ALRC’s contribution at this particular time, coinciding with the return of Mark Dreyfus QC to the post of Commonwealth Attorney-General.

William Isdale and Sarah Fulton

Last week, the Australian Law Reform Commission’s report, Without Fear or Favour: Judicial Impartiality and the Law on Bias, was tabled in the Commonwealth Parliament. It provides the first comprehensive review in Australia of the laws, practices and procedures relating to judicial impartiality and bias, and makes 14 recommendations for reform.

The Australian Law Reform Commission (ALRC) is grateful for the opportunity to contribute to this special AUSPUBLAW forum. The report is the product of the contributions of many, including litigants, judges, legal practitioners, and academics. We hope that the report generates debate and discussion regarding the merits (or otherwise) of the ALRC’s recommendations for reform, and we look forward to reading the contributions of the assembled expert commentators, as they share their views on this blog over the coming weeks.

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?