Harry Hobbs and Lorne Neudorf

Much of the political momentum surrounding Indigenous rights quickly dissipated following the defeat of the Voice referendum in October 2023. Newly elected governments in the Northern Territory and Queensland abandoned their long-running treaty processes, while the federal government has remained conspicuously silent about a path forward. This is not the whole story, however. In South Australia, the government has maintained its commitment to the State’s First Nations Voice, despite early challenges and an unsuccessful attempt to repeal the legislation and dismantle the institution.

Developments in Victoria have also continued apace. Since November 2024, the First Peoples’ Assembly of Victoria and the State government have engaged in negotiations aimed at reaching a Statewide Treaty. If concluded, it would mark the first formal treaty in Australian history: a watershed moment in the legal relationship between First Peoples and the state. As Patrick Dodson has observed, treaties that give effect to Indigenous self-determination and establish ‘mutually agreed terms for our relationship with the Australian government’, remain part of the nation’s ‘unfinished business’.

Douglas McDonald-Norman

In its recent judgment in CZA19 v Commonwealth; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8(CZA19), the High Court has confirmed that a non-citizen may be detained for the purpose of receiving, investigating and determining their application for a visa. This is an important clarification and restatement of the principles articulated by the Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ). (For an explanation of those principles, see Sangeetha Pillai and Laura John, Josephine Langbien and Sanmati Verma for AUSPUBLAW.)

Across the ocean, in the Indian state of Assam, Rajendra Das was stripped of his Indian citizenship by a Foreigners Tribunal. This is part of a harsh and demanding process which, in conjunction with the compilation of a National Register of Citizens (NRC), has deprived nearly two million residents of Assam of citizenship where they have been unable to prove (through documentary evidence) that they or their ancestors lived in India before March 1971. In some cases, people have been deprived of citizenship based on minor inconsistencies within their identity documents – often simple matters of spelling or transliteration. 

Dane Luo

In Sofronoff v ACT Integrity Commission, a former Queensland judge, Walter Sofronoff KC, is seeking judicial review of findings made by the Australian Capital Territory (ACT) Integrity Commission (Commission) that he engaged in ‘serious corrupt conduct’. As the Commission’s findings are set out in a report tabled in the ACT Legislative Assembly (Assembly), the Commission argues that judicial review of its findings would contravene parliamentary privilege.

This issue is not unique to the ACT. Indeed, all Commonwealth and State legislation establishing integrity or anti-corruption bodies include provisions that provide for its reports to be delivered to the presiding officers or clerks of the Houses of Parliament to be formally tabled to those Houses. The argument is that, because reports are prepared for tabling to Parliament and are required to be tabled in Parliament, the making and contents of those reports attract parliamentary privilege. This post explains the factual background in Sofronoff and critically evaluates the Commission’s argument. It argues that the report is a ‘proceeding of Parliament’ and can thus be protected from actions such as defamation. However, it argues that the legislative provisions for parliamentary privilege should be read purposively so that they do not preclude judicial review of the report.

Cherry Tang and Eden Blair

In June 2024, the High Court handed down its decision in R v Hatahet [2024] HCA 23 (HCA Judgment) on appeal from the New South Wales Court of Criminal Appeal (CCA) decision in Hatahet v R [2023] NSWCCA 305 (CCA judgment). The High Court unanimously held that a reduced chance of parole as a result of the operation of s 19ALB of the Crimes Act 1914 (Cth) (Crimes Act) cannot be taken into account in sentencing. Even though terrorist offenders are extremely unlikely to be released on parole, sentencing courts cannot take this into consideration when setting the length of the head sentence and the non-parole period. Section 19ALB requires exceptional circumstances be proven before someone who has committed a terrorism offence can be granted parole. This holding overturned the CCA decision that a sentence served with almost no chance of parole constitutes a more onerous period of imprisonment and, in this case, warranted a reduction in the head sentence.

Kent Blore

The High Court handed down Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (Momcilovic) well over a decade now. That means it has been more than a decade since the High Court last grappled with the difficult questions of when and how legislation should be interpreted in a way that is compatible with human rights. The High Court recently returned to these vexed questions in the case of DPP v Smith [2024] HCA 32; (2024) 98 ALJR 1163 (Smith).

The issue in the case was whether a broad statutory discretion authorised a trial judge to meet privately with the complainant of child sex offences in the absence of the accused before she gave her evidence. That begged the question of whether the broad statutory discretion needed to be read down to ensure that it was compatible with human rights, including the right to a fair hearing, as required by the interpretive clause in s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).

Patrick Hossack

On the outskirts of Hobart Airport, where Holyman Avenue and Cranston Road meet the Tasman Highway, construction is set to begin on a new interchange. A Parliamentary Committee has considered and reported on the plans, clearing the way for work to begin. An aggrieved resident, claiming an interest in land adjacent to Cranston Parade, alleges that the works to be undertaken are not in fact the works that were considered by the Committee—the costs don’t add up, the roundabouts are absent, the works are in fact unlawful. This resident takes action against the contractors to prevent them proceeding. The State intervenes, seeking in turn to prevent the Court interrogating the contents of the Committee report to ascertain if the works contained within it are those same works currently taking place on the outskirts of Hobart Airport. The Committee has reported, and there can be no assessment of the contents of that report to contrast with the actual bitumen being laid under its auspices—even if the roundabouts are missing.

Dane Luo

On 21 November 2024, the International Criminal Court (ICC) issued an arrest warrant against the Israeli Prime Minister, Benjamin Netanyahu, and former Defence Minister, Yoav Gallant. The judges found reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility for the war crime of starvation as a method of warfare, and the crimes against humanity of murder, persecution, and other inhumane acts. 

After this announcement, one question that attracted attention was: ‘Will they be arrested if they step foot into Australia?’ There are several legal issues associated with this question, which are not the subject of this post. Rather, this post uses Australia’s legal framework for ICC arrest warrants and requests for arrest and surrender to highlight how the constitutional principle of dualism works, how it gives flexibility to nation-states and how issues about compliance with international law can still arise.

Anna Talbot

ASF17 v Commonwealth [2024] HCA 19 (ASF17 v Commonwealth) is the latest judgment of the High Court of Australia in the hotly contested space of immigration detention. With this case,the High Court reaffirmed that indefinite immigration detention remains available in Australia. Its permissible use has narrowed, however, when compared with the law prior to the High Court’s ruling in NZYQ v Minister for Immigration [2023] HCA 37 (NZYQ). In determining whether immigration detention is valid, ASF17 v Commonwealth tells us that the circumstances and motivations of the plaintiff is key. However, the ruling hinges on a troubling concept of ‘choice’, the consequence of which is that people who are at risk of persecution or death if they are deported can remain indefinitely detained if they refuse to be deported to such risks. This post examines the history leading up to the decision in ASF17 v Commonwealth, unpacking the facts and arguments made by the parties and how they were responded to by the Court. While the case is problematic, in that it permits indefinite detention based on choices that no person should be expected to make, it also offers insights which might serve to assist those seeking release from indefinite immigration detention in the future.

Sebastian Long

In March 2022, the Labor Party defeated the Liberal government in the South Australian election. Amongst the promises campaigned on by the victorious new Premier, the Hon Peter Malinauskas MP, was a commitment to ban political donations. It would be over two years before any such plan was announced, with the Attorney-General, the Hon Kyam Maher MLC, remarking in August 2022 that ‘[t]here are constitutional issues we need to look at when we do the drafting to make sure we overcome’. But on 12 June 2024, the Premier released a draft of the Electoral (Accountability and Integrity) Amendment Bill 2024 (Draft Bill or DB), with his government’s intention clear: ‘We want money out of politics’. At the time of writing, public consultation on the Bill has ended and we await its results.

Samuel Naylor

On 19 December 2023, Abdul Nacer Benbrika was released from custody after being detained for the best part of 20 years. He was released after Hollingworth J of the Victorian Supreme Court made orders replacing a continuing detention order (CDO) with an extended supervision order (ESO) pursuant to div 105A within Pt 5.3 of the Criminal Code (Cth) (Code). Division 105A is a Commonwealth legislative scheme of ‘post-sentence orders’ (PSOs) whose object is:

… to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to [a CDO or ESO].

Theunis Roux

There have been two significant developments in comparative constitutional studies over the last decade. First, the rise of authoritarian populism in Europe and the Americas has produced an outpouring of literature on the causes of this phenomenon and what can be done to protect constitutional democracies against it. Second, after a long and mysterious delay, the Global South critique has finally arrived in the field – hauling it kicking and screaming into, not quite the twenty-first century, rather something more like the 1980s in the humanities after Edward Said’s intervention – with a lot of ground still to make up.

Ben Schonthal

I fear this piece will be both less and more than what is asked for.

It will be less in that I do not consider myself an expert on Global South constitutionalism, but only an observer of one slice of it: the constitutional systems of South and Southeast Asia. And my true expertise is even narrower than that. My research explores what happens when national constitutions confront another major source of normativity in nation-states: the one that Hirschl and Shachar have called the ‘rival’ to constitutional law, namely religion.

My comments may be more than what’s asked for in that I tend to take a wider view of comparative constitutional law than is typical at public law conferences. I am a social scientist who writes about people and topics that don’t always find their way onto the pages of the International Journal of Constitutional Law. Yes, I consider the work of judges, lawmakers and national constitutions. But I also think about Buddhist monks, protest leaders and firewalkers. For me, they are also constitutional actors—or so I hope to persuade you.

So I offer these comments with humility.

Lael K Weis

Like the other contributors to this series, I had the privilege of travelling to Darwin to attend the High Court hearings for Commonwealth v Yunupingu (D5/2023) on August 7th, 8th and 9th. This post offers a set of reflections based on attending those hearings.  My focus is on the second ground of the appeal: namely, whether native title rights fall outside the scope of s 51(xxxi) because they are ‘inherently defeasible’.  This issue consumed most of the parties’ time and attention in argument over these three days, and my instinct is that the appeal is likely to be determined on this basis. 

Sean Brennan

For more than 40 years, cases initiated by Aboriginal people have tested the interpretation of key constitutional provisions in Australia’s highest court. Since Mabo v Queensland (No 2), the High Court of Australia has also been instrumental in defining and confining possibilities for what First Nations groups might achieve through the vehicle of native title. That has included ten test cases on extinguishment law, the Yorta Yorta decision that set a high legal bar for proving continuity of connection, and the Timber Creek case about statutory rights to compensation for the extinguishment of native title.

Another such moment of reckoning has arrived for First Nations people, and for the High Court in the development of native title law and its interpretation of the Constitution.

On 9 August, the High Court sitting in Darwin reserved judgment on the answer to three questions of law posed on appeal in Commonwealth v Yunupingu. This blog post will explore what the litigation is about, how the parties argued their position in Darwin and why the case is significant.

Lucinda O'Brien and Vivien Chen

The Royal Commission into the Robodebt Scheme found that the scheme was ‘disastrous’, a ‘crude and cruel mechanism’ that systematically harassed and ‘traumatised’ many thousands of social security recipients. Yet consumer advocates assert that lessons from Robodebt have not been learnt and several public agencies, including the agency responsible for social security, continue to use inappropriate methods to recover debts. Our new research, conducted with colleagues at Melbourne Law School, highlights significant and enduring deficiencies in the legal frameworks concerning debt collection by government agencies. We propose reforms to improve the debt collection practices of public agencies and reduce the risk that government debt collection will cause further serious and unjustifiable harm.

Lisa Burton Crawford

Recent decisions of the United States Supreme Court (SCOTUS) seem to have thrown the administrative state into crisis. A suite of recent cases have limited executive power in important ways—for example, by requiring executive action to be authorised by far more detailed legislation than has previously been required, or preventing executive agencies from performing certain functions that they have been allowed to in the past. These include the momentous decision in Loper Bright Enterprises v Raimondo, 603 US ___ (2024) — in which the SCOTUS effectively overturned the doctrine of Chevron deference.

Why should Australian public lawyers be interested in these developments? What light do they cast on our own legal system, and its particular strengths and pathologies? This post explores these issues, beginning with the complex legislative framework that sustains administrative government here.

Harry Sanderson

A majority of the United States Supreme Court in June abolished Chevron deference—a doctrine which had been a cornerstone of US administrative law for 40 years. The decision was long-anticipated, but is likely to be divisive. This post explains the Court’s reasoning in Loper Bright Enterprises v Raimondo, 603 US ___ (2024) and some of its possible implications for US and Australian administrative law.

Riley O’Keeffe

Maintaining integrity within the public sector is an integral component of responsible and good government. Theories of deviance suggest that as long as there are rules, there will be rule-breakers. Without proper or robust accountability mechanisms, public trust in government institutions would decline. Serious wrongdoing within the public sector, such as corruption, fraud or maladministration, is not within the public interest. Therefore, the inclination of public sector employees to speak up against serious wrongdoing is of vital importance in maintaining integrity within the public sector. The protections available for public sector whistleblowers must be strong enough to protect them from any possible detriment that may follow as a result of speaking up.

Public sector whistleblowing, also referred to as making a Public Interest Disclosure (‘PID’), is the action of identifying and reporting serious wrongdoing that affects the public sector. The Public Interest Disclosures Act 2022 (NSW) (‘new PID Act’) is one tool that can be used to ensure accountability and integrity are maintained within the public sector.

Michael Legg and Felicity Bell

At the end of 2023 the Australian public were captivated by the defamation case of Bruce Lehrmann v Network Ten Pty Limited (Lehrmann v Network Ten). Mr Lehrmann alleged that he had been defamed by the reporting of an interview with former parliamentary staffer Brittany Higgins, who alleged that she had been raped at Parliament House in the early hours of 23 March 2019. Mr Lehrmann was not named but it was alleged that the reporting indicated that he was the perpetrator. Judgment was handed down in April 2024. Justice Lee of the Federal Court found, on the balance of probabilities, Mr Lehrmann raped Ms Higgins at Parliament House in 2019 and Mr Lehrmann’s claim failed (Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 (Lehrmann (Trial Judgment))).

Attention then switched to the question of costs. While the media has focused on the sheer level of costs — reporting that some of the many counsel involved in the proceedings charge upward of $8000 per day — the Lehrmann case illustrates the dual costs risks of litigating civil matters in Australia. These are that you may have to pay both your own lawyers, and the legal costs of your opponent/s if you are unsuccessful.

William Partlett

In February 2024, the High Court held in AB v IBAC [2024] HCA 10 that individuals facing an ‘adverse’ finding in a report issued by Victoria’s anti-corruption commission, the Independent Broad-Based Anti-Corruption Commission (‘IBAC’), must be given broad access to the evidentiary material that justified that finding. In response, commentators have worried that this kind of ruling would damage the public interest, slowing down the release of anti-corruption reports while individuals litigate their ability to adequately respond to allegations.