Ellen Rock

I am very grateful to Dr Anna Olijnyk and Emeritus Professor John McMillan for taking the time to engage so thoughtfully with the arguments I have made in the book, and for their insightful contributions to this book forum. In my reply, I would like to reflect on their comments by reference to perhaps the most high-profile accountability development that has post-dated the publication of this book: the establishment of a National Anti-Corruption Commission. This development has of course been on the agenda for some time, allowing ample opportunity to design an optimal model. The Labor government introduced its long-awaited bill into Parliament in September and has since been passed in an amended form by both Houses. It is clearly too early to predict how effective the ultimate Commission will be as an accountability mechanism. However, informed by the arguments I have made in Measuring Accountability, two key points bear consideration.

Anna Olijnyk

Ellen Rock pulls off an impressive feat in Measuring Accountability in Public Governance Regimes (‘Measuring Accountability’). The book’s two central insights are, on the one hand, usually overlooked in administrative law scholarship and, on the other, so convincing as to elicit a reaction of ‘yes, of course!’ Rock points out, first, that claims of ‘too much’ or ‘not enough’ accountability make little sense without a normative benchmark of the ideal amount of accountability. Secondly, she argues the existence of an accountability deficit or overload must be assessed at a systemic level, rather than by focusing on single accountability mechanisms in isolation.

In this post, I explore how these insights might shed light on the (non)development of novel grounds of judicial review addressing serious forms of administrative injustice (‘substantive grounds of review’) in Australia.

John McMillan

Accountability has become an accustomed concept in our professional and public life.

We are constantly reminded in the workplace that we are accountable for how we discharge functions and the impact of our actions on others. We are equally likely to draw on accountability principles to question the professional conduct of others. A familiar line in daily media stories is that government officials must be held accountable if allegations are substantiated about matters as diverse as Robodebt collection, flood prevention, grant allocation, COVID enforcement, workplace abuse, conflict of interest, privacy breaches, wasteful spending and misleading promises. Those of us engaged in teaching or legal practice are likely to rely on accountability as an overarching norm to explain how public (and private) sector entities and officers should be answerable for what they do.

What more can be said? Dr Ellen Rock dives straight in! While explaining accountability theory both comprehensively and lucidly, she takes the discussion further by focussing valuably on two practical dimensions.

Anne Carter

I am honoured and humbled to have such an eminent panel engage with my book, Proportionality and Facts in Constitutional Adjudication. As I will explain below, the motivations for this book stemmed in part from my time as a practising government lawyer, so I’m particularly delighted that this book forum includes two practitioners of public law, along with a leading comparative constitutional law scholar. Each panellist has engaged thoughtfully with the substance of the book and has raised a number of distinct issues. In this post I will explain the motivations behind the book and its main themes and findings, as well as responding to the helpful contributions from the three panellists. In doing so I will sketch some future directions about the ongoing conversation about facts in proportionality reasoning (and public law more generally).

Samuel Murray

Dr Anne Carter’s Proportionality and Facts in Constitutional Adjudication is a timely and welcome addition to the perpetually growing commentary concerning the advent of structured proportionality in the High Court’s jurisprudence of the implied freedom of political communication.

As Dr Carter notes throughout the book , a bare majority of the High Court in McCloy v New South Wales (2015) 257 CLR 178 dramatically changed the approach to testing proportionality in respect of the implied freedom by adopting a structured, multi-faceted approach to proportionality testing, effectively in lieu of the prior verbal formulation from Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. given how extensively it changed the approach to the implied freedom. McCloy heralded a new wave of both academic commentary and case-law about the merits and application of the new formulation. This book does an excellent job at building out the former and offering guidance for the latter in respect of the use of facts in the new world of implied freedom proportionality testing.

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.

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

Lisa Burton Crawford, Elma Akand, Steefan Contractor and Scott Sisson

The ongoing inquiry of the Australian Law Reform Commission (ALRC) into Financial Services Legislation has cast new light on the complexity of legislation enacted by the Australian Parliament. This post aims to harness some of the ‘significant appetite and impetus for change’ that the ALRC identified with respect to federal financial services legislation for the broader phenomenon legislative complexity — which, we argue, has become systemic. This is demonstrated by data that we collected from the Federal Register of Legislation (FRL).

Tamara Tulich and Sarah Murray

On 7 September 2022, the High Court handed down its decision in Garlett v Western Australia [2022] HCA 30 (Garlett) upholding, by a 5:2 majority, the validity of item 34 of Sch 1 of Div 1 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) on the basis that it did not infringe the principle established in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 (Kable). The constitutional reasoning of the High Court in Garlett follows the pattern of Vella v Commissioner of Police (NSW) [2019] HCA 38 (Vella) and Minister for Home Affairs v Benbrika [2021] HCA 4 (Benbrika) with Gageler J and Gordon J dissenting from the rest of the Court in relation to the constitutionality of the risk assessment role being conferred on ‘courts of a State’. However, the case also provides important new insights on Chapter III of the Commonwealth Constitution (Ch III) in that a minority of the Court identified a role for the principle established in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] 176 CLR 1 (Lim) beyond the federal court context to state courts and, relatedly, new strands of convergence in Ch III jurisprudence. .

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

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’.

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

Sangeetha Pillai

Since 2015, Australia has had controversial citizenship-stripping laws as a part of its national security toolkit. These laws apply to dual citizens deemed to have repudiated their allegiance to Australia by virtue of their activities, and were first introduced in response to an increase in citizens travelling overseas to serve as ‘foreign fighters’ for organisations like Islamic State. In the recent decision of Alexander v Minister for Home Affairs [2022], the High Court found a provision of these laws, s 36B of the Australian Citizenship Act 2007, to be invalid in its entirety by a 6:1 majority (Steward J dissenting). For many, this was not an unexpected outcome: since the earliest days of Australia’s citizenship-stripping laws, multiple experts have warned that there was a likelihood that legislating for conduct-based denationalisation without conviction carried a serious risk of constitutional invalidity. This post unpacks key aspects of this decision. It focuses on the lines of agreement and disagreement amongst members of the Court with respect to the two issues that attracted the most consideration: whether s 36B infringed the separation of judicial power, and whether it fell within the scope of the naturalization and aliens power in s 51(xix) of the Constitution.

Brandon Smith

The High Court has once again entered the fray on the concept of materiality in Nathanson v Minister for Home Affairs [2022] HCA 26 (Nathanson). This time, the Court clarified the evidentiary burden imposed on a judicial review applicant to show the realistic possibility of a different outcome where there is a denial of a fair opportunity to be heard. While the appeal was allowed 6:0 from the majority judgment of the Full Court of the Federal Court (Steward and Jackson JJ), the High Court has again divided on the question of onus for materiality. While this decision arises in the context of decision-making under the Migration Act 1958 (Cth), it may have broader ramifications for judicial review applications involving issues of procedural fairness.