Index
- October 2026 6
- September 2026 2
- August 2026 1
- July 2026 1
- June 2026 3
- May 2026 2
- March 2026 2
- February 2026 3
- December 2025 4
- November 2025 4
- October 2025 1
- September 2025 1
- August 2025 1
- July 2025 2
- June 2025 1
- May 2025 2
- March 2025 2
- February 2025 2
- January 2025 1
- November 2024 5
- October 2024 2
- August 2024 3
- July 2024 2
- June 2024 4
- May 2024 1
- April 2024 5
- March 2024 5
- February 2024 4
- January 2024 2
- December 2023 5
- November 2023 7
- October 2023 4
- September 2023 5
- August 2023 3
- July 2023 5
- June 2023 3
- May 2023 5
- April 2023 3
- March 2023 5
- February 2023 9
- December 2022 9
- November 2022 3
- October 2022 7
- September 2022 4
- August 2022 8
- July 2022 3
- June 2022 4
- May 2022 9
- April 2022 7
- March 2022 2
- February 2022 5
- December 2021 7
- November 2021 12
- October 2021 9
- September 2021 14
- August 2021 9
- July 2021 5
- June 2021 9
- May 2021 4
- April 2021 3
- March 2021 13
- February 2021 7
- December 2020 1
- November 2020 4
- October 2020 4
- September 2020 5
- August 2020 5
- July 2020 8
- June 2020 5
- May 2020 11
- April 2020 6
- March 2020 5
- February 2020 3
- January 2020 1
- December 2019 1
- November 2019 3
- October 2019 2
- September 2019 2
- August 2019 4
- July 2019 2
- June 2019 2
- May 2019 5
- April 2019 8
- March 2019 2
- February 2019 3
- December 2018 1
- November 2018 9
- October 2018 2
- September 2018 5
- August 2018 3
- July 2018 3
- June 2018 2
- May 2018 5
- April 2018 7
- March 2018 3
- February 2018 4
- December 2017 3
- November 2017 7
- October 2017 4
- September 2017 3
- August 2017 3
- July 2017 1
- June 2017 3
- May 2017 2
- April 2017 3
- March 2017 4
- February 2017 3
- January 2017 1
- December 2016 3
- November 2016 4
- October 2016 2
- September 2016 1
- August 2016 3
- July 2016 1
- June 2016 3
- May 2016 3
- April 2016 4
- March 2016 4
- February 2016 3
- January 2016 1
- December 2015 2
- November 2015 4
- October 2015 4
- September 2015 4
- August 2015 3
- July 2015 6
- June 2015 6
Removing the watchdog’s bark: Crime and Corruption Commission v Carne
Neil Laurie
It is not uncommon for the activities of ad hoc and permanent commissions of inquiry to be the subject of judicial review. But the series of decisions that culminated in the very recent High Court decision of Crime and Corruption Commission v Carne [2023] HCA 28 requires special attention as they deal with the intersection of judicial review of a permanent commission of inquiry’s report provided to its parliamentary oversight committee, thereby potentially raising issues of parliamentary privilege.
What is an Appeal For? AZC20 v MICMSMA
Joe McIntyre
What is a Court? What does a Court do? What are we left with when we strip away the theatre and ceremony, the grand buildings and reams of paper, the gladiatorial intellectual sparring, and careful deliberations? We are so focused on the processes and outputs of courts that we rarely stop to reflect on the fundamental purposes they serve, and the limits that these purposes impose on them.
The peccadillos of the Australian Constitution (the autochthonous expedient, structural implications, the US/UK hybrid etc) means that we have a particularly active jurisprudence on the nature, limits and implication of judicial power. In its latest contribution to this oeuvre, AZC20 v MICMSMA, the High Court grappled once more with the concept of ‘matter’ in the context of an appeal rendered moot by intervening events. In an 4-1 decision, the Court held that the Full Court of the Federal Court lacked jurisdiction to hear an appeal where events meant that there was no longer any active dispute.
Section 80 and the Territories: Vunilagi v The Queen [2023] HCA 24
Bharan Narula
Is a trial on indictment for an offence contrary to a law of a self-governing territory a ‘law of the Commonwealth’ for the purpose of s 80 of the Constitution? To the extent that R v Bernasconi (1915) (Bernasconi) has been understood to decide that the power in s 122 is not subject to the requirements of s 80, will a case likely need to involve a trial on indictment of an offence enacted by the Commonwealth Parliament under s 122 for a majority to decide whether Bernasconi should be distinguished or re-opened? These questions were considered in Vunilagi v The Queen [2023] HCA 24.
A perspective from a jurisdiction without a doctrine of deference: Australia
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.
Protest bans in NSW and South Australia - are they constitutionally valid?
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?
Caesar judging Caesar: lay-person membership of a federal judicial commission
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.
Commissioner Holmes’ Revolution? Robodebt, Transparency and Record Creation
Darren O’Donovan
The Final Report of the Robodebt Royal Commission was released on 7 July 2023, in a landmark moment for Australian public administration. The report makes searing findings against senior public servants and politicians. In this post I discuss how, in her report, Commissioner Catherine Holmes AC SC effectively inverts a generation of public service thinking about cabinet confidentiality and the duty to give frank and fearless advice. I argue that the Report’s final two recommendations – suggesting reform to cabinet confidentiality and record creation – are the lynchpins for successful public service reform after Robodebt.
‘For every wrong, there is a remedy’: the availability of mandamus against federal court judges and other alternatives to judicial injustice
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.
Structure over Text: the High Court splits on constitutional implications
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.
Federal Jurisdiction and Post-Conviction Review Mechanisms: Attorney-General (Cth) v Huynh [2023] HCA 13
Jack Zhou
States and Territories allow the possibility, in certain circumstances, for a review of a conviction or sentence even after an offender has exhausted all avenues of appeal. But do these circumstances apply in federal jurisdiction over Commonwealth offences? In the absence of Commonwealth law to that effect, s 68 of the Judiciary Act 1903 (Cth), which places the administration of federal criminal law substantially in the hands of the States and Territories, could possibly achieve that.
This post will consider the High Court’s recent decision in Attorney-General (Cth) v Huynh [2023] HCA 13 (Huynh) and outline the reasoning of the majority and minority judgments. It then provides some observations about the importance of post-conviction inquiries and the potential gap left by the High Court’s decision.
The Trump Card: ENT19 v Minister for Home Affairs [2023] HCA 18
Douglas McDonald-Norman
‘The national interest’ is a broad concept, and ‘largely a political question’. Decision-makers ordinarily enjoy considerable discretion in deciding what is and is not in ‘the national interest’. But in its recent judgment in ENT19 v Minister for Home Affairs [2023] HCA 18, by a narrow majority of 4 to 3, the High Court identified and reiterated important limits to what factors may be relevant in deciding whether it is in the ‘national interest’ to grant a protection visa.
This post will set out the factual and procedural history to this matter and analyse the majority’s reasoning in ENT19. This post will then examine the potential implications of this judgment for the scope of the term ‘national interest’, and for ENT19 himself.
Gremlins, Borgs, and judicial impartiality in multi-member courts: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Sarah Fulton and Geneviève Murray
Judicial impartiality — and within that, an absence of bias — is at the heart of the Australian judicial system and central to how judges see themselves. But while serving and retired judges of the High Court have had a lot to say about when judicial bias arises, they have (with some notable exceptions, as noted in the ALRC Judicial Impartiality Report, p 234) said little publicly about how such matters should be raised with and considered by the courts. Until now.
In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (‘QYFM’), judges of the High Court not only clarified the law on apprehended bias as it applies to a judge who was previously involved in the prosecution of a party, but also took the opportunity to set out their views on the processes for determining issues of bias raised in multi-member courts (such as Courts of Appeal, Full Courts, or the High Court itself).
The Constitutional Relationships Between 'Just Terms' Acquisition, Territories, and Native Title: Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia
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.
Limits on Non-Statutory Executive Power: Davis v MICMSMA; Davis v Secretary of Department of Home Affairs [2023] HCA 10
Maria O’Sullivan
The recent High Court decision in Davis v Minister for Immigration; DCM20 v Secretary of Department of Home Affairs contains some important statements on the reviewability of non-statutory ministerial guidelines. The key questions before the High Court were whether the Court could determine whether non-statutory executive action by federal departmental officers was unlawful on the ground of legal unreasonableness, and whether the guidelines used by officers to ‘screen’ visa applications to be presented to the Minister were valid.