Janina Boughey

Among English-speaking common law jurisdictions Australia has been the most resistent to doctrines of deference in the administrative law context. It is often said that Australia’s High Court has rejected deference. In fact, a majority of the High Court has rejected Chevron deference, but only in obiter. Nevertheless, it is true that Australia has no ‘doctrine’ of deference, that Chevron deference specifically is generally thought to be inconsistent with the Australian conception of the separation of powers, and that the very mention of the word ‘deference’ seems to provoke the ire of some judges.

Brenda Tronson

In Australia, we can generally display our political opinions in public without fear of penalty, government persecution or violence. The High Court confirmed in the mid 1990s that our constitution contains an implied freedom of political communication, which is central to our representative democracy. The freedom is not absolute, and some regulation of protests is permitted.

But in 2022 and 2023, two Australian states (NSW and South Australia) passed laws which banned certain forms of protest. Do those laws go too far?

Jane Hall

Henry Palmerlee

This post first briefly summarises the case for a federal judicial commission, a proposal which has been mooted for decades but has only recently gathered broad support from the legal sector. It then argues that, to perform its role of maintaining public confidence in the judiciary, the commission should include lay-people as members. (In this post, the term ‘lay-person’ refers to someone disconnected from the three branches of government – for example, a legal practitioner, an eminent community figure, or simply a member of the public. The operative aspect of lay-personhood is that a person does not hold a role within the legislature, executive or judiciary, and has not held one in the past.) Finally, constitutional concerns regarding the inclusion of non-judicial members are addressed.

The post concludes that, while the inclusion of lay-members in a commission may raise unique constitutional concerns, these concerns are unlikely to pose an insurmountable obstacle so long as suitable qualification requirements are implemented for lay-members.

Jerry To

The recent judgment of the Federal Court of Australia in Smart Education Program Pty Ltd (in liq) v CLGC Australia Pty Ltd [2023] FCA 826 (Smart Education) has raised much consternation. At first glance, the case appears to be a run-of-the-mill contractual dispute. However, the source of controversy arises from an unexpected source, which concerned not the parties but the conduct of the judges themselves.

Smart Education prompts interesting questions about whether there is any scope in Australian public law to provide relief to the parties in circumstances of undue judicial delay. This article will focus on one such possibility: whether the High Court of Australia could have issued a writ of mandamus compelling the Federal Court to hand down its judgment in a timely manner. This, in turn, raises complex questions going to the very heart of the operation of the federal judiciary and the High Court’s ability to regulate their conduct.

Harry Sanderson

Many foundational principles of Australian public law arise from constitutional implications, to the extent that that within the Constitution ‘much of the greatest importance is implied’ (McGraw-Hinds (Aust) Pty Ltd v Smith at 668 (Murphy J)). In Zurich Insurance Company Ltd & Anor v Koper & Anor [2023] HCA 25 (Zurich), the High Court unanimously rejected an argument identifying a novel constitutional implication. The Court was divided, however, on the proper approach to drawing implications within the Constitution. That division maps onto longstanding debates regarding the proper approach to constitutional interpretation.

This post considers the different approach taken by each judgment on the point of implications in light of the dominant methodology of textualism, and questions the distinction between text and structure which informs their reasoning.

Lucas Lixinski

Luke Beck

Michael Douglas

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.  

Craig Lenehan

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).

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.