Anna Olijnyk and Cornelia Koch

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.

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).

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.  

Maria O’Sullivan

The recent High Court decision in Davis v Minister for Immigration; DCM20 v Secretary of Department of Home Affairs contains some important statements on the reviewability of non-statutory ministerial guidelines. The key questions before the High Court were whether the Court could determine whether non-statutory executive action by federal departmental officers was unlawful on the ground of legal unreasonableness, and whether the guidelines used by officers to ‘screen’ visa applications to be presented to the Minister were valid.

Graeme Orr

It is 40 years since the Hawke government begat the regime that still essentially governs the funding of campaigns for Commonwealth elections.  That regime remains at rest on twin pillars. Public funding, for parties or candidates that attract above 4% of the vote, in return for some disclosure requirements – whose lack of timeliness is redolent of the paper-and-pen era in which they were hatched.  Whether in an absolute sense, or relative to our usual democratic comparators, the electoral funding and disclosure rules in the Commonwealth Electoral Act remain lax. This state of affairs may align with liberal philosophy in the abstract. But it is not merely passé in terms of developments in the field in the last 40 years; it is corrosive of faith in integrity and political equality in Australian elections.

With a Labor government ostensibly driven by social democratic norms, and an expansive cross-bench of Greens and independents committed in principle to more fairness in electoral participation, what are the prospects for renewal? To discuss this, we need to consider the main dishes on the regulatory menu: disclosure, donation caps, expenditure limits. Then, finally, to ask if reform is imminent after all these years.

Julie Falck, Jessica Kerr and Marco Rizzi

This is a story about the edges of the law and the limits of accountability. It involves some of the most stringent public health measures ever imposed by an Australian government at the height of the COVID-19 pandemic. Those measures are no longer in force and, in the eyes of the Western Australian (WA) Government, they are accordingly no longer of interest to the public. They have effectively disappeared from public view. The effort required for three academic lawyers to find them, during the submission period for an ongoing independent review of the Government’s pandemic response, was alarming. This post offers a snapshot of how this issue has evolved in WA, and where we stand in 2023.

Craig Lenehan

Kate Griffiths

During the 2022 federal election campaign, then-Opposition Leader Anthony Albanese promised Australians a new kind of politics: one that would regain respect from the people. Australians backed this new politics – not only in their support for a new government, but also for a wave of ‘Teal’ candidates who put integrity front and centre in their campaigns.

Now, almost a year into the job, the Albanese Government faces a test of this commitment to new politics.

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.

Alex Deagon

In my new book, A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination (Hart Publishing, 2023), I give substantive content to calls for a principled approach to reconciling the sometimes-competing imperatives of religious freedom and equality, through applying theological virtues such as dignity, humility, patience, generosity, kindness, forgiveness and compassion to create a peaceful coexistence of difference. The purpose of my book is to deploy these theological virtues to reconcile the tensions between religious freedom and equality.

Fiona McDonald, Stephen Duckett and Emma Campbell

The recent Independent Review of Medicare Integrity and Compliance highlighted that ‘the current state of Medicare, and some of the challenges … are the result of previous attempts to apply discrete and band-aid solutions to single issues over time and a lack of system thinking and consideration’.

One of the issues in contemplating the reform of Medicare is the long-standing debate about whether there is a constitutional impediment to implementing major reforms. This post discusses the impact of the High Court’s evolving interpretation of the civil conscription sub-clause in s51(xxiiiA) of the Commonwealth Constitution, and the implications of that response for the current and future design of Medicare as reflected in the Health Insurance Act 1973 (Cth).

Scott Stephenson

Elisa Arcioni and Andrew Edgar

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.

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.

Samuel Naylor

On 2 December 2022, the Full Federal Court unanimously dismissed an appeal brought by Santos NA Barossa Pty Ltd (Santos) against a decision of Bromberg J: Santos NA Barossa Pty Ltd v Tipakalippa. This set aside the decision of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to accept Santos’ Drilling EP. On appeal, all judges held that Santos and in turn NOPSEMA had failed to understand the correct meaning of the statutory language and the decision of the regulator was set aside.

In this case note, I discuss how the parties and, in turn, the Court in this case approached the issue of whether a decision maker had lawfully reached a state of ‘reasonable satisfaction’: a subjective jurisdictional fact, or precondition, to the acceptance of the Drilling EP prepared by Santos. I suggest that while the Full Court took an orthodox approach, the judgment at first instance illustrates the uncertainties which trouble this form of judicial review.

Gabrielle Appleby, Elisa Arcioni, Sean Brennan, Megan Davis, Stephen McDonald and Scott Stephenson

AUSPUBLAW Editorial Team

Dane Luo

In early January, the world watched in disbelief as the US House of Representatives went through vote after vote to elect a Speaker. The chaos stemmed from 19 Republican Representatives (joined later by one more) who rebelled against the House Republican Conference’s pick of Kevin McCarthy for Speaker. Four days and 15 votes later, at the stroke of midnight, McCarthy was elected Speaker.

It begs the question: would such a messy, protracted political battle for the position of Speaker happen in Australia? In short, the answer is no. To demonstrate why, this article will compare and contrast the role, powers, and method of electing the Speaker in these two countries.