Mike Wait

Dr Anne Carter’s new book, Proportionality and Facts in Constitutional Adjudication, makes a substantial and timely contribution to our understanding of a range of issues emerging in the burgeoning field of proportionality litigation. The focus of the book is on sources of evidence, burdens of proof and aspects of procedure. However, the book’s real strength is that it locates what are ultimately practical litigious issues within a sophisticated account of the evolution of the implied freedom of political communication in Australia and an appreciation of comparative approaches drawn from jurisdictions which have long wrestled with these issues.

Rosalind Dixon

Proportionality analysis is ultimately deeply fact dependent. It depends on an assessment of the suitability of laws for achieving their purposes – a question of basic logic and social fact. It further requires an assessment of whether a law is necessary, or could achieve its objective through some hypothetical, less restrictive alternative, and is 'adequate in the balance', namely achieves greater benefits than costs, from a constitutional perspective.

Anne Carter notes in her important new book that these are all arguably 'legislative' rather than 'adjudicative' facts, but also distinct in nature and scope. As the High Court has indicated, each calls for different sources of evidence, and procedures and rules governing their use. Yet to date, the constitutional law-fact nexus has attracted only limited attention in Australia. Carter’s book therefore makes an important contribution to the literature on this question. It provides a nuanced survey of the procedural challenges and complexities facing the High Court in this context, and offers tentative, well-reasoned potential solutions, informed by comparative experience.

David Hume

In SDCV v Director-General of Security [2022] HCA 22, the High Court held, 4:3, that it was constitutionally-permissible for the Federal Court to have regard to 'closed' information, which was known to the Court and the Government’s lawyers, and was the subject of 'closed' submissions involving the judges and the Government’s lawyers but was not disclosed to SDCV or his lawyers. The key issue in the case was whether the statutory scheme established by the Administrative Appeals Tribunal Act 1975 (Cth) – which permitted the Federal Court to rely on closed information, while prohibiting it from being disclosed to SDCV – required or permitted the Federal Court to act in a procedurally unfair way.

In this post, I first address the factual and procedural background (which are interesting in and of themselves); secondly, I address some key aspects of the majority’s reasoning; and, thirdly, I make some observations on the reasoning and outcome.

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’.

The Hon William Gummow AC

When the Judiciary Committee of the 1891 National Australasian Convention, under the Chairmanship of Andrew Inglis Clark, prepared its report (which is reproduced in Judicial Federalism in Australia: History, Theory, Doctrine and Practice at pp 208 to 210), there were in operation in what today could be identified …

Brendan Lim

History, theory, doctrine and practice. The subtitle of this splendid new book by Gabrielle Appleby, Anna Olijnyk, James Stellios and John Williams, Judicial Federalism in Australia: History, Theory, Doctrine and Practice (Federation Press, 2021), reminds us of the many different resources on which we can draw in …

Sarah Murray

Appleby, Olijnyk, Stellios and Williams’ book, Judicial Federalism in Australia – History, Theory, Doctrine and Practice (2021, Federation Press), is nothing short of a constitutional law aficionado’s delight – unravelling the mysteries and twists and turns of Kable through the combined expertise of the authors and the historical, doctrinal …

Erin F. Delaney

If, as A.V. Dicey once wrote, ‘federalism means legalism,’ it is particularly surprising that studies of federalism so often overlook a federal system’s judicial architecture and its operation. Exploring the ‘predominance of the judiciary in the constitution’ often begins and ends with analysis of …

Gabrielle Appleby, Anna Olijnyk, James Stellios & John Williams

This book is the result of years of collective and collaborative thinking around Chapter III of the Australian Constitution, and, to use Professor Sarah Murray’s phrase, the ‘unique form of Australian judicial federalism’ that it reflects today. We are delighted to see the book launched …

Alan Robertson SC

Dr Amanda Sapienza’s Judicial Review of Non-Statutory Executive Action is an important work because it has as its centre of attention non-statutory executive action, rather than dealing with it, however well, in a more general context of public law. In this second category I would include, for …

Cheryl Saunders

Publication of a serious work on judicial review of non-statutory executive power in Australia is long overdue and Amanda Sapienza’s book is very welcome for this reason. I have watched her ideas on these complex issues develop since her presentation to the Cambridge Public Law Conference in 2016. …

Jackson Wherrett

On one level, Dr Amanda Sapienza’s Judicial Review of Non-Statutory Executive Action is a novel examination of an under-explored area of administrative law. At the same time, it joins a very long line of scholarship that considers the principle of the separation of powers. More particularly, it draws on the …

Amanda Sapienza

Between the pandemic and my post-PhD career choices, an in-person launch of Judicial Review of Non-Statutory Executive Action, which was published by the Federation Press at the end of 2020, was out of the question. So I’m indebted to the editors of AUSPUBLAW for hosting this online …

Craig Lenehan

Shipra Chordia’s excellent book, Proportionality in Australian Constitutional Law, is a fine contribution to this difficult and developing area. As Sir Anthony Mason observes in his foreword, it is “an important addition to the Australian Constitutional Law Bookshelf” (at vi). Notably, the High Court has already begun to engage with Dr Chordia’s work …

Murray Wesson

Proportionality is a vexed topic in Australian constitutional law. On the one hand, the High Court has for many years relied upon forms of proportionality to characterise laws enacted with respect to purposive and incidental law-making powers, and to determine the validity of laws burdening constitutional limits. On the other hand, …

Theunis Roux

Philipp Dann, Michael Riegner and Maxim Bönnemann’s edited collection of essays on The Global South and Comparative Constitutional Law constitutes a major advance in scholarly thinking on this topic. Theorising the Global South as an ‘epistemic, methodological and institutional sensibility’ (p. 3), Dann and his co-editors persuasively show …