Rosalind Dixon

Cass Sunstein is well known to many readers – for his work on constitutional law and theory, but also (with Richard H Thaler) on 'nudges' and how government and private actors can make better decisions using the insights of social psychology and behavioural economics. On some measures, he is the most cited contemporary legal scholar, and so prolific that he is the lawyer’s equivalent of Kevin Bacon – the person we use to judge 'degrees of separation' in the academy.

Any new book by Sunstein is thus highly anticipated, and his new book on constitutional interpretation, How to Interpret the Constitution, does not disappoint. In this pithy new work, Sunstein provides an interesting and novel account of how to approach the interpretation of a written constitution.

Brenda Tronson

Open AI announced the release of ChatGPT-4 in late 2022, billing it as a revolutionary next step in 'artificial intelligence'. Many people around the world got stuck into finding out what this new tool could do. So, what ethical issues arise for a lawyer using ChatGPT-4, or a similar tool?

Sangeetha Pillai

The Australian Constitution has a rather infamous track record when it comes to exclusion. Sometimes it excludes through silence. For example, since 1967 there has been no mention of First Nations peoples within its pages. It has very little to say about rights protection. It makes no reference to a national citizenship (but it does mention foreign citizens, if only to exclude them from Parliament).

Harry Sanderson and Meghan Malone

The High Court alone has the power to overrule High Court authority. In NZYQ, the Court unanimously overruled its prior constitutional holding in Al-Kateb and held that ss 189(1) and 196(1) of the Migration Act, which allowed an unlawful non-citizen to be detained indefinitely, contravened Ch III of the Constitution.

In this respect the decision provides insight into the circumstances in which the Court will elect to reopen, and thereafter overrule, constitutional authority. It reaffirms that, in deciding whether to reopen and overrule a constitutional decision, the 'consistency and continuity' of that decision in light of subsequent jurisprudence will be the Court’s primary consideration. The Court’s reasoning also indicates that while other factors will remain relevant to its assessment of whether a constitutional holding should be reopened, these factors will bear less weight.

Stephen McDonald SC

Much has been, and will continue to be, written about the substance of NZYQ v MICMA and its implications, both political and legal. This post focusses on some notable features of the judgment itself: in particular, the presentation of a single judgment joined in by all Judges, but which identifies individual positions taken by some of those Judges.

Call for Expressions of Interest to join the editorial team of AUSPUBLAW.

Ruchira Abeyratna

The Robodebt Royal Commission Report, published in July 2023, was a sobering reminder of the dire consequences of ineffective government accountability. The Albanese Federal Government’s recent commitment to adopting all the recommendations of the Royal Commission, at least in principle, represents a potential step towards preventing future disastrous misadministration. However, healing the wounds inflicted by the Robodebt scheme requires more than political promises. It requires substantial reflection and discourse on how public institutions should operate to effectively hold the government accountable.

This article will posit that while the judiciary adequately scrutinised the government’s administration of Robodebt, its dispute-dependency meant that justice was far from immediate. Thus, non-judicial institutions must be adequately empowered to take proactive and rapid action when the government acts unlawfully or against the principles of good government. I advance two suggestions on how this can be achieved. Firstly, imposing a positive duty on the Ombudsman to act when it reasonably suspects unlawful or unprincipled governmental conduct. Secondly, bolstering the protection of non-judicial accountability institutions from governmental interference.

Marco Rizzi, Fiona McGaughey and Alex Gardner

In August 2023, Senator David Pocock introduced to the Senate the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth) (‘the Bill’), which seeks to establish a statutory duty of care to avert harm to the health and wellbeing of current and future Australian children by the Commonwealth Government when making decisions that may cause significant greenhouse gas emissions. The explanatory memorandum to the Bill describes climate change as ‘having increasingly significant impacts in Australia, in the Pacific region and across the globe’ and outlines how the damage to ‘Australia’s economic prosperity, environment, and our health and wellbeing is severe and getting worse’.

This post articulates how the Bill addresses key gaps and delays in common law and legislation, improves Australia’s compliance with international law, and has the potential to create a useful climate change mitigation governance tool.

Anne Twomey

An arresting opening line is essential if one is to entice readers into an intimidating tome. The High Court’s judgment in Vanderstock v Victoria [2023] HCA 30 (Vanderstock) is certainly a tome, concluding at paragraph [951] and page 384. But the arresting line does not appear until paragraph [8]. Journalists would call this ‘burying the lede’.

In paragraph [8], the joint judgment of Kiefel CJ, Gageler and Gleeson JJ explained that the cases of Capital Duplicators Pty Ltd v Australian Capital Territory (1993) 178 CLR 561 (Capital Duplicators [No 2]) and Ha v New South Wales (1997) 189 CLR 465 (Ha) should not be re-opened. This was because, they said, ‘the Court could not justify now taking the momentous step of unsettling the resultant constitutional doctrine’ set out in these cases and because the current federal-state financial arrangements are ‘not to be judicially disturbed’.

Why that is such an arresting, or perhaps more accurately breathtaking, statement is that the judgment proceeds to do precisely what it said it could not justify doing: establishing a new ‘high constitutional purpose’ for s 90; establishing a new test for an excise; extending excise to taxes related to the ownership, hiring or usage of goods, or indeed anything that affects the demand for goods, thereby creating high levels of uncertainty about the validity of State taxes; and up-ending existing Commonwealth-State financial relations.

Emily Hammond and Rayner Thwaites

Within the space of 18 months the High Court of Australia has delivered three judgments on the constitutional validity of ministerial powers to revoke citizenship. Benbrika v Minister for Home Affairs [2023] HCA 33 (‘Benbrika 2’), and Jones v Commonwealth of Australia [2023] HCA 34 (‘Jones’), handed down on 1 November 2023, join last year’s decision in Alexander v Minister for Home Affairs [2022] HCA 19 (‘Alexander’). Central to all three cases is the question: what constraints does Ch III of the Constitution impose on laws for citizenship deprivation?
In this post we explain how the authorities cohere to establish a clear structure for evaluating whether ministerial citizenship stripping powers comply with Ch III. Moreover, these cases further cement the proposition that by operation of Ch III, the Commonwealth cannot impose punishment on any basis other than breach of the law by past acts. This limitation on Commonwealth power to punish is emerging as the key organising principle for evaluating whether citizenship stripping powers — including judicial powers exercised by courts — are compatible with Ch III.

Laura John, Josephine Langbien and Sanmati Verma

Late in the afternoon on the final day of the hearing in NZYQ, Chief Justice Gageler announced that the High Court would ‘adjourn momentarily to consider the course it will take’. When the hearing resumed a mere 16 minutes later, the Chief Justice declared that ‘at least a majority of the Court’ considered that the detention of the plaintiff was unlawful. With that, the High Court overturned an almost 20-year legal precedent established in Al-Kateb that had permitted the Executive Government to detain non-citizens indefinitely. In the aftermath, a political and media furore saw the Albanese Government rush unprecedented laws through Parliament to create a shadow detention regime for those released from immigration detention.

This article charts the road from Al-Kateb to NZYQ, discusses the Parliament’s extraordinary legislative response and offers some thoughts on what might follow as the Government attempts to reformulate its approach to immigration detention. We warn that – in the aftermath of one of the most significant constitutional cases in decades – we should not continue further down a path that punishes people on the basis of their visa status. Instead, we should take this opportunity to overhaul a deeply flawed system.

Kristen Rundle

It is a real privilege to read and be given the opportunity to reply to this AusPubLaw book symposium on my Cambridge ‘Element’, Revisiting the Rule of Law. That each of Gabrielle Appleby, Megan Davis, Dylan Lino, Alex Reilly, Paul Burgess and Justice Angus Stewart took the time to take my efforts at explication, analysis and intellectual leadership seriously, and then reflect on their own academic and professional endeavours in association with those efforts, is the ultimate compliment to an author whose first priority in writing the work was that it be useful to others.

The little book with which we are here concerned came into being because the editors for the ‘Philosophy of Law’ series within the new Cambridge University Press ‘Elements’ project asked me to write the volume on ‘the rule of law’. My instructions were to provide a succinct and accessible overview of key ideas and debates within scholarship on the rule of law, as well as to suggest ways in which the boundaries of this received territory might be pushed in the direction of new frontiers of inquiry.

Paul Burgess

I was not convinced that a small (66 page) book that – in addition to being written for a principal audience of students and teachers of legal and political thought – was written for ‘anyone who wants to understand more about how we think, speak, and write about the rule of law’ (at 3) could provide a creative approach or motivate substantive further academic ideas about the concept. I was wrong.

Across only three logically (yet innovatively structured) short parts, Kristen Rundle stimulates and provokes engagement with the concept of the Rule of Law in Revisiting the Rule of Law. The three parts – that first examine the methodology associated with theorising the Rule of Law before considering the entangled way in which the concept is frequently presented – culminate in a part that explores ‘what may be missing or under-examined within theoretical engagement’ (at 2) and identifies a need to revisit the Rule of Law.

Angus Stewart

Kristen Rundle’s remarkably readable and insightful book, Revisiting the Rule of Law, reminds us that the idea, or ideal, of the rule of law means different things to different people. The ‘rule of law’ is a highly contested concept. It is perhaps particularly vulnerable to elasticity because it inevitably has different meanings in different constitutional contexts, and that is not always acknowledged. For example, AV Dicey generally remains the go-to theorist for judges when writing about the rule of law. Yet Dicey described the rule of law in the context of the English unwritten constitution. That is a quite different context from the arrangements of other constitutional systems.

Gabrielle Appleby, Megan Davis, Dylan Lino and Alexander Reilly

Kristen Rundle’s multiple achievements in Revisiting the Rule of Law are belied by its slim volume (although its lucid concision is one of those achievements). A book on the rule of law by one of the world’s leading analytical legal philosophers, it provides a cut-through typography of different ‘accounts’ of the ambiguous and contested ‘rule of law’; explores the different articulations of its driving purpose and its connections with other foundational public law principles such as constitutionalism, liberty, legitimacy, and accountability; and considers the arguments and contestations that exist amongst those scholarly and practice-based disciples – and critics – of the rule of law.

In our view, the most important achievements of Rundle’s book lie in her contextualising and peopling of the rule of law. This is done through a number of what she terms ‘provocations’, and by situating these provocations within the rule of law as a ‘working idea’, given meaning through discourse and practice (at 3).

Guy Baldwin

The growth of structured proportionality in recent years has been a much remarked upon feature of global constitutionalism. Even supporters of proportionality describe how it ‘exhibits a viral quality, spreading relatively quickly from one jurisdiction to another’ – not, exactly, an image of careful adaptation. Originating in Germany, proportionality spread to Australian constitutional law in respect of the implied freedom of political communication in the case of McCloy in 2015, and in respect of s 92 in the case of Palmer in 2021 (after previously being considered in earlier cases). However, Gageler J and Gordon J have maintained principled opposition to the use of structured proportionality in these and other cases. Gageler J became Chief Justice of Australia on 6 November 2023. Does that change things?

In this blog, I consider the possible significance of the new Chief Justice to the proportionality debate, before explaining why I consider that proportionality should be abandoned in Australian constitutional law, and suggesting an alternative approach.

Dane Luo

NSW Premier Chris Minns went to the 2023 state election promising to ‘change the constitution of NSW to protect Sydney Water and Hunter Water from privatisation!’ A change to the constitution, according to Minns, would put ‘a lock to make sure future governments don’t sell [Sydney Water and Hunter Water] off’. After the election, Minns’ government introduced legislation to amend the state’s constitution, explaining that it ‘effectively put a sphere of protection around both entities, preventing privatisation, preventing unreasonable price spikes and ensuring these essential assets will always belong to the people of NSW.’ But does the Constitution Amendment (Sydney Water and Hunter Water) Act 2023 (NSW) (the Amendment Act) actually ‘lock’ or ‘protect’ the State’s water infrastructure as Minns claims?

Matthew Groves

A sexual assault is alleged to have occurred several years ago in the federal Parliament building. Mr Bruce Lehrmann was alleged to have sexually assaulted Ms Brittany Higgins. Mr Lehrmann sought a stay of the charges, arguing that he could not possibly get a fair trial. That claim failed, so a trial followed. The jury was discharged after five days of deliberation. A retrial was planned but the prosecution was discontinued because of concerns about Ms Higgins’ mental health and the impact a second trial might have upon her.

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.

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.