Yee-Fui Ng

I am deeply grateful to Frank Pasquale, Anna Huggins, and Alexandra Sinclair for their insightful comments on my book. It is such a pleasure to have such deep engagement and interaction with my work.

My decision to write this book stemmed from the large-scale scandals and controversies arising from automated decision-making that erupted in democracies such as Australia, the United States (US) and the United Kingdom (UK), which have harmed hundreds of thousands of people. The echoes of Robodebt in Australia, the MiDAS automated system in Michigan, and the UK Post Office Scandal reverberate until today, and prompted me to question: how did things go so wrong in these advanced liberal democracies with their sophisticated checks and balances?

Alexandra Sinclair

New technologies always lay bare the ambiguities present within existing frameworks of legal regulation. The use of artificial intelligence (AI) and automation in public-sector decision-making is no different. Automation in the administrative state has amplified the already contradictory and ambiguous aspects of administrative procedure. Does administrative decision-making necessitate a process of human cognition; are consultation obligations able to be met through AI simulation of public opinion; to what extent must courts exercise deference in evaluating the predictive assessments of AI models; and can the source code and training data of machine learning models satisfy the requirements of reason-giving are a few of the novel questions public sector automated decision-making raises.

Frank Pasquale

In her Combatting the Code: Regulating Automated Government Decision-Making in Comparative Context, Yee-Fui Ng examines many instances of predictive AI use that raise serious concerns about potential inaccuracy, discrimination, or alienation. Her penultimate chapter, ‘Towards a Framework for Technological Governance’, provides important methods for addressing these problems. The book also articulates normative foundations for a positive ideal of legal decision-making that is enhanced—not replaced by—AI.

This post, an appreciative response to the book, will focus on the reasons given for decisions, particularly given the rise of chatbots that can simulate reasoning processes. My main contention is that the principles animating Combatting the Code should not only lead us to demand reasons for automated decision-making, but in many cases should also require human reasoners to articulate such rationales in response to arguments posed by applicants and litigants.

Anna Huggins

Associate Professor Yee-Fui Ng’s new book, Combatting the Code, makes an important and timely contribution to debates about regulating automated government decision-making. Her in-depth comparative analysis of grounds of legal challenge for automated government decision-making across four dimensions (judicial review for rationality, anti-discrimination, public sector privacy and data protection, and freedom of information) in the United States (US), United Kingdom (UK), and Australia is an impressive feat. She also proposes a new framework for technological governance that moves beyond a focus on external legal and political accountability measures by foregrounding the importance of internal managerial controls for automated systems within government agencies.

Jerry Leung and Seung Chan Rhee

Where a judge makes adverse credibility findings against a witness in the liability stage of a trial and that same witness is required to give evidence at the relief stage, is that judge required to recuse themselves on account of apprehended bias? On 16 October 2025, the High Court will consider this important question when it hears the appeal in SunshineLoans Pty Ltd v ASIC (Case No B23/2025). This post argues that disqualification should not always follow. We consider what was said at first instance and on appeal and note that a constitutional dimension to apprehended bias may have been overlooked. Procedural fairness is a defining characteristic of Ch III courts, from which the subsidiary rule against apprehended bias is derived. This post argues that the rule against apprehended bias is not an absolute rule, and departures are permissible where they are reasonably necessary for protecting a compelling public interest – an evaluative exercise going beyond the four corners of the fair-minded lay observer test.

Liz Hicks

The recent Federal Court decision of Pabai v Commonwealth (No 2) [2025] FCA 796 considered whether the Commonwealth owed two duties of care to the Torres Strait Islander people with respect to particular harms connected with climate change. The Court rejected the plaintiffs’ claims. The decision is relevant on a number of fronts, including its findings regarding causation and that the cultural loss and harm experienced by the plaintiffs — fulfilment of Ailan Kastom — was not a legally recognisable ‘head of damage’ that can be compensated. However, in this post I focus on a particular feature of the Court’s analysis: the finding that the Commonwealth owed neither duty of care because decisions connected with the two argued duties involved matters of ‘core policy’.

Julian R Murphy

The High Court’s decision in Ravbar v Commonwealth [2025] HCA 25 raises a number very large questions, including as to proportionality testing in different fields of constitutional law, ‘reading down’ constitutional purposes, and the constraints of precedent on a single Justice of the High Court. In amongst those headline matters one might easily overlook another issue that divided members of the Court – the relevance of private communications to the interpretation, and judicial review, of legislation. This issue might seem niche, but the use of private documents in legislative deliberation is in fact relatively common.

Jason Donnelly and Chris Honnery

Plaintiff S15/2025 concerned an application in the High Court’s original jurisdiction brought on behalf of a Syrian refugee who was refused a resident return visa under s 501(1) of the Migration Act 1958 (Cth).

Shortly before the final hearing, the Minister for Immigration and Citizenship conceded that the decision to refuse the Plaintiff’s visa was affected by jurisdictional error. Consequently, the matter was resolved by consent, such that the High Court will not deliver a judgment that would have considered the Executive’s responsibilities in respect of refugees permanently residing in Australia who seek to re-enter the country following a temporary departure. This post unpacks the central issues in the case, including the scope of Australia’s non-refoulement obligations and potential 'constructive refoulement', considers the implications of the Minister’s concession, and analyses the impugned decision to identify lessons for practitioners.

Nina Dillon Britton

On 16 April 2025, in a unanimous decision, the UK Supreme Court found that, for the purposes of the Equality Act 2010 (UK), ‘sex’ means one’s biological sex at birth and ‘women’ means only people who were female sex at birth: For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16. The Court rejected the Scottish Ministers’ contention that transgender women with gender recognition certificates were ‘women’ for the purposes of the Equality Act (as well as the corollary, that ‘men’ included transgender men with such certificates). The effects of the Supreme Court’s decision will be deeply felt by transgender people in the UK, and the judgment will no doubt be subject to significant critical analysis.

This blog post concerns the question of whether the ruling in For Women Scotland has relevance in Australia, and particularly whether it might influence Australian courts in interpreting the Sex Discrimination Act 1984 (Cth)—the rough federal equivalent to the Equality Act. The issue is a live one. Last year, the construction of the words ‘woman’ and ‘sex’ were considered in the context of a gender identity discrimination claim brought by a transgender woman against an app marketed as ‘female-only’: Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (Tickle v Giggle (No 2)). The Federal Court’s conclusion that ‘sex’ (in its ordinary meaning) was changeable, and thus that the complainant’s discrimination claim was successful, is currently under appeal. Similar questions of construction have also been raised in a decision by the Administrative Review Tribunal to uphold a decision by the Australian Human Rights Commission not to grant an exemption to a lesbian group, which sought to hold events that would exclude transgender women: Lesbian Action Group and Australian Human Rights Commission [2025] ARTA 34. That decision is currently the subject of a judicial review application in the Federal Court.

Harry Hobbs and Lorne Neudorf

Much of the political momentum surrounding Indigenous rights quickly dissipated following the defeat of the Voice referendum in October 2023. Newly elected governments in the Northern Territory and Queensland abandoned their long-running treaty processes, while the federal government has remained conspicuously silent about a path forward. This is not the whole story, however. In South Australia, the government has maintained its commitment to the State’s First Nations Voice, despite early challenges and an unsuccessful attempt to repeal the legislation and dismantle the institution.

Developments in Victoria have also continued apace. Since November 2024, the First Peoples’ Assembly of Victoria and the State government have engaged in negotiations aimed at reaching a Statewide Treaty. If concluded, it would mark the first formal treaty in Australian history: a watershed moment in the legal relationship between First Peoples and the state. As Patrick Dodson has observed, treaties that give effect to Indigenous self-determination and establish ‘mutually agreed terms for our relationship with the Australian government’, remain part of the nation’s ‘unfinished business’.

Douglas McDonald-Norman

In its recent judgment in CZA19 v Commonwealth; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8(CZA19), the High Court has confirmed that a non-citizen may be detained for the purpose of receiving, investigating and determining their application for a visa. This is an important clarification and restatement of the principles articulated by the Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ). (For an explanation of those principles, see Sangeetha Pillai and Laura John, Josephine Langbien and Sanmati Verma for AUSPUBLAW.)

Across the ocean, in the Indian state of Assam, Rajendra Das was stripped of his Indian citizenship by a Foreigners Tribunal. This is part of a harsh and demanding process which, in conjunction with the compilation of a National Register of Citizens (NRC), has deprived nearly two million residents of Assam of citizenship where they have been unable to prove (through documentary evidence) that they or their ancestors lived in India before March 1971. In some cases, people have been deprived of citizenship based on minor inconsistencies within their identity documents – often simple matters of spelling or transliteration. 

Dane Luo

In Sofronoff v ACT Integrity Commission, a former Queensland judge, Walter Sofronoff KC, is seeking judicial review of findings made by the Australian Capital Territory (ACT) Integrity Commission (Commission) that he engaged in ‘serious corrupt conduct’. As the Commission’s findings are set out in a report tabled in the ACT Legislative Assembly (Assembly), the Commission argues that judicial review of its findings would contravene parliamentary privilege.

This issue is not unique to the ACT. Indeed, all Commonwealth and State legislation establishing integrity or anti-corruption bodies include provisions that provide for its reports to be delivered to the presiding officers or clerks of the Houses of Parliament to be formally tabled to those Houses. The argument is that, because reports are prepared for tabling to Parliament and are required to be tabled in Parliament, the making and contents of those reports attract parliamentary privilege. This post explains the factual background in Sofronoff and critically evaluates the Commission’s argument. It argues that the report is a ‘proceeding of Parliament’ and can thus be protected from actions such as defamation. However, it argues that the legislative provisions for parliamentary privilege should be read purposively so that they do not preclude judicial review of the report.

Call for expressions of interest: AUSPUBLAW Book Forum

Cherry Tang and Eden Blair

In June 2024, the High Court handed down its decision in R v Hatahet [2024] HCA 23 (HCA Judgment) on appeal from the New South Wales Court of Criminal Appeal (CCA) decision in Hatahet v R [2023] NSWCCA 305 (CCA judgment). The High Court unanimously held that a reduced chance of parole as a result of the operation of s 19ALB of the Crimes Act 1914 (Cth) (Crimes Act) cannot be taken into account in sentencing. Even though terrorist offenders are extremely unlikely to be released on parole, sentencing courts cannot take this into consideration when setting the length of the head sentence and the non-parole period. Section 19ALB requires exceptional circumstances be proven before someone who has committed a terrorism offence can be granted parole. This holding overturned the CCA decision that a sentence served with almost no chance of parole constitutes a more onerous period of imprisonment and, in this case, warranted a reduction in the head sentence.

Kent Blore

The High Court handed down Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (Momcilovic) well over a decade now. That means it has been more than a decade since the High Court last grappled with the difficult questions of when and how legislation should be interpreted in a way that is compatible with human rights. The High Court recently returned to these vexed questions in the case of DPP v Smith [2024] HCA 32; (2024) 98 ALJR 1163 (Smith).

The issue in the case was whether a broad statutory discretion authorised a trial judge to meet privately with the complainant of child sex offences in the absence of the accused before she gave her evidence. That begged the question of whether the broad statutory discretion needed to be read down to ensure that it was compatible with human rights, including the right to a fair hearing, as required by the interpretive clause in s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).

Patrick Hossack

On the outskirts of Hobart Airport, where Holyman Avenue and Cranston Road meet the Tasman Highway, construction is set to begin on a new interchange. A Parliamentary Committee has considered and reported on the plans, clearing the way for work to begin. An aggrieved resident, claiming an interest in land adjacent to Cranston Parade, alleges that the works to be undertaken are not in fact the works that were considered by the Committee—the costs don’t add up, the roundabouts are absent, the works are in fact unlawful. This resident takes action against the contractors to prevent them proceeding. The State intervenes, seeking in turn to prevent the Court interrogating the contents of the Committee report to ascertain if the works contained within it are those same works currently taking place on the outskirts of Hobart Airport. The Committee has reported, and there can be no assessment of the contents of that report to contrast with the actual bitumen being laid under its auspices—even if the roundabouts are missing.

Dane Luo

On 21 November 2024, the International Criminal Court (ICC) issued an arrest warrant against the Israeli Prime Minister, Benjamin Netanyahu, and former Defence Minister, Yoav Gallant. The judges found reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility for the war crime of starvation as a method of warfare, and the crimes against humanity of murder, persecution, and other inhumane acts. 

After this announcement, one question that attracted attention was: ‘Will they be arrested if they step foot into Australia?’ There are several legal issues associated with this question, which are not the subject of this post. Rather, this post uses Australia’s legal framework for ICC arrest warrants and requests for arrest and surrender to highlight how the constitutional principle of dualism works, how it gives flexibility to nation-states and how issues about compliance with international law can still arise.

Anna Talbot

ASF17 v Commonwealth [2024] HCA 19 (ASF17 v Commonwealth) is the latest judgment of the High Court of Australia in the hotly contested space of immigration detention. With this case,the High Court reaffirmed that indefinite immigration detention remains available in Australia. Its permissible use has narrowed, however, when compared with the law prior to the High Court’s ruling in NZYQ v Minister for Immigration [2023] HCA 37 (NZYQ). In determining whether immigration detention is valid, ASF17 v Commonwealth tells us that the circumstances and motivations of the plaintiff is key. However, the ruling hinges on a troubling concept of ‘choice’, the consequence of which is that people who are at risk of persecution or death if they are deported can remain indefinitely detained if they refuse to be deported to such risks. This post examines the history leading up to the decision in ASF17 v Commonwealth, unpacking the facts and arguments made by the parties and how they were responded to by the Court. While the case is problematic, in that it permits indefinite detention based on choices that no person should be expected to make, it also offers insights which might serve to assist those seeking release from indefinite immigration detention in the future.

Sebastian Long

In March 2022, the Labor Party defeated the Liberal government in the South Australian election. Amongst the promises campaigned on by the victorious new Premier, the Hon Peter Malinauskas MP, was a commitment to ban political donations. It would be over two years before any such plan was announced, with the Attorney-General, the Hon Kyam Maher MLC, remarking in August 2022 that ‘[t]here are constitutional issues we need to look at when we do the drafting to make sure we overcome’. But on 12 June 2024, the Premier released a draft of the Electoral (Accountability and Integrity) Amendment Bill 2024 (Draft Bill or DB), with his government’s intention clear: ‘We want money out of politics’. At the time of writing, public consultation on the Bill has ended and we await its results.

Samuel Naylor

On 19 December 2023, Abdul Nacer Benbrika was released from custody after being detained for the best part of 20 years. He was released after Hollingworth J of the Victorian Supreme Court made orders replacing a continuing detention order (CDO) with an extended supervision order (ESO) pursuant to div 105A within Pt 5.3 of the Criminal Code (Cth) (Code). Division 105A is a Commonwealth legislative scheme of ‘post-sentence orders’ (PSOs) whose object is:

… to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to [a CDO or ESO].