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?

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

Zoe Bush

On 15 March 2022, the Full Court of the Federal Court (Full Court) unanimously reversed Bromberg J’s finding that the Commonwealth Minister for the Environment (Minister) owed all Australian children a duty of care to avoid causing personal injury or death arising from the emission of greenhouse gases when exercising her powers to approve a coal mine extension under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

Ryan Feuerherdt

Heading into the final weeks of the 2022 federal election campaign, it was difficult to avoid the extensive discussion devoted to the issue of government accountability and integrity.

The failure of Scott Morrison’s Coalition government to implement an anti-corruption body was successfully targeted by the Australian Labor Party, the Greens, as well as the various ‘teal independents’, throughout the campaign.

Narelle Miragliotta and Sarah Murray

In January 2022, the NSW Electoral Commission (NSWEC) petitioned the NSW Supreme Court to void the outcome in three local council elections held on December 4 the previous year. The basis for the petition was not one of the more familiar triggers. As the counsel for one of the defendants in the case observed: ‘This is not a case where there was rampant widespread voter fraud, or lost ballot boxes, or ballot stuffing. There were no riots [or] outbreak of warfare that suspended an election’. The problem in this instance was a system capacity issue. The basis of the petition launched by the NSWEC was a ‘defect or irregularity’ in the electronic iVote system.

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

Chris Honnery

‘A sentence of death.’ The title of Edelman J’s dissenting judgment in Plaintiff M1/2021 v Minister for Home Affairs (M1) captures the stakes of visa cancellation matters in which a former visa holder claims to face serious harm in their country of origin.

In M1, the High Court addressed whether a decision maker is required to consider claims that raise a potential breach of Australia's international nonrefoulement obligations when determining if there is ‘another reason’ to revoke a mandatory visa cancellation under s 501CA of the Migration Act 1958 (Cth) (the Act). By majority, the High Court held that it is permissible to ‘defer’ consideration of non-refoulement claims raised in a request to revoke a visa cancellation on the basis that these claims will be assessed in a protection visa application.

Megan Davis

The commitment by Prime Minister Anthony Albanese to a referendum in his first term of government puts lawyers squarely in the frame of influence over the coming years. Referendums are rare in this country. The last one was in 1999, and the last successful referendum was in 1977. Referendums are one occasion that Australians do want to hear the views of lawyers. And this is a serious responsibility for all of us.

Megan Davis