Craig Lenehan

Kate Griffiths

During the 2022 federal election campaign, then-Opposition Leader Anthony Albanese promised Australians a new kind of politics: one that would regain respect from the people. Australians backed this new politics – not only in their support for a new government, but also for a wave of ‘Teal’ candidates who put integrity front and centre in their campaigns.

Now, almost a year into the job, the Albanese Government faces a test of this commitment to new politics.

Josh Gibson

On 15 February 2023, the High Court (the Court) delivered its judgment in Unions NSW v New South Wales [2023] HCA 4 (Unions NSW). Unions NSW was brought by way of special case in the original jurisdiction of the Court. Two key provisions of the Electoral Funding Act 2018 (NSW) (the EF Act), sections 29(11) and 35, were challenged on the ground they impermissibly burdened the implied freedom of communication (the implied freedom). Two weeks before the hearing of Unions NSW, the New South Wales (NSW) Parliament passed the Electoral Legislation Amendment Bill 2022, which repealed section 35 of the EF Act. This raised significant questions about whether a plaintiff retains standing to challenge a provision if that provision is repealed after the case commences.

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).

Scott Stephenson

Elisa Arcioni and Andrew Edgar

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.

Samuel Naylor

On 2 December 2022, the Full Federal Court unanimously dismissed an appeal brought by Santos NA Barossa Pty Ltd (Santos) against a decision of Bromberg J: Santos NA Barossa Pty Ltd v Tipakalippa. This set aside the decision of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to accept Santos’ Drilling EP. On appeal, all judges held that Santos and in turn NOPSEMA had failed to understand the correct meaning of the statutory language and the decision of the regulator was set aside.

In this case note, I discuss how the parties and, in turn, the Court in this case approached the issue of whether a decision maker had lawfully reached a state of ‘reasonable satisfaction’: a subjective jurisdictional fact, or precondition, to the acceptance of the Drilling EP prepared by Santos. I suggest that while the Full Court took an orthodox approach, the judgment at first instance illustrates the uncertainties which trouble this form of judicial review.

Gabrielle Appleby, Elisa Arcioni, Sean Brennan, Megan Davis, Stephen McDonald and Scott Stephenson

AUSPUBLAW Editorial Team

Dane Luo

In early January, the world watched in disbelief as the US House of Representatives went through vote after vote to elect a Speaker. The chaos stemmed from 19 Republican Representatives (joined later by one more) who rebelled against the House Republican Conference’s pick of Kevin McCarthy for Speaker. Four days and 15 votes later, at the stroke of midnight, McCarthy was elected Speaker.

It begs the question: would such a messy, protracted political battle for the position of Speaker happen in Australia? In short, the answer is no. To demonstrate why, this article will compare and contrast the role, powers, and method of electing the Speaker in these two countries.

Sana Nakata

Robert French

William Isdale and Nicholas Simoes da Silva

In this piece, we build upon a recent post on legislative complexity by Crawford, Akand, Contractor and Sisson to reveal just how big a problem legislative complexity actually is. In doing so, we will explain how a recently launched ALRC initiative — the DataHub — can deliver new insights for scholars interested in probing these issues further. We will also outline some additional answers to a question posed by Crawford and colleagues: “how do we actually simplify legislation?”, drawing on the ALRC’s latest research.

Henry Palmerlee

Justice Gageler’s dissenting judgement in the recent case of Farm Transparency International Ltd v New South Wales [2022] HCA 23 includes an insightful explanation of why video-based political communication has attracted consistent judicial interest. His Honour argued that two unique characteristics of visual imagery – its persuasiveness and inherent veracity – make it a potent medium for political communication in the modern age.

In this piece, I consider Gageler J’s reasoning in the context of recent advances in video manipulation through artificial intelligence, specifically deepfakes.

Somali Cerise and Prabha Nandagopal

On 28 November 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 was passed by Federal Parliament, heralding a new era for gender equality and the prevention of sexual harassment in Australian workplaces. The key reform introduced by the bill is the highly anticipated positive duty for employers to eliminate discriminatory conduct under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act). The positive duty was the cornerstone recommendation in the Australian Human Rights Commission’s Respect@Work Report and will shift the burden away from individuals taking remedial action, instead putting the onus on employers to prioritise early intervention and prevention.

Paul Kildea

In early December 2022 the Albanese government took another important step towards the referendum to constitutionally enshrine a First Nations Voice. It introduced into the House of Representatives the Referendum (Machinery Provisions) Amendment Bill 2022. The Bill proposes numerous changes to referendum process, including new arrangements for public education and campaign finance.

Referendum process usually takes a backseat to substantive debates on constitutional change. That is understandable, but process matters now deserve a place in the spotlight. How Parliament approaches these machinery changes will influence how the public debate and campaign over the Voice unfolds. Getting the process right is essential if the Voice vote is to be fair and informed.

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