Lael K Weis

Like the other contributors to this series, I had the privilege of travelling to Darwin to attend the High Court hearings for Commonwealth v Yunupingu (D5/2023) on August 7th, 8th and 9th. This post offers a set of reflections based on attending those hearings.  My focus is on the second ground of the appeal: namely, whether native title rights fall outside the scope of s 51(xxxi) because they are ‘inherently defeasible’.  This issue consumed most of the parties’ time and attention in argument over these three days, and my instinct is that the appeal is likely to be determined on this basis. 

Sean Brennan

For more than 40 years, cases initiated by Aboriginal people have tested the interpretation of key constitutional provisions in Australia’s highest court. Since Mabo v Queensland (No 2), the High Court of Australia has also been instrumental in defining and confining possibilities for what First Nations groups might achieve through the vehicle of native title. That has included ten test cases on extinguishment law, the Yorta Yorta decision that set a high legal bar for proving continuity of connection, and the Timber Creek case about statutory rights to compensation for the extinguishment of native title.

Another such moment of reckoning has arrived for First Nations people, and for the High Court in the development of native title law and its interpretation of the Constitution.

On 9 August, the High Court sitting in Darwin reserved judgment on the answer to three questions of law posed on appeal in Commonwealth v Yunupingu. This blog post will explore what the litigation is about, how the parties argued their position in Darwin and why the case is significant.

Jerry Leung, Maxen Williams, and Kevin Zou

Last month, it was reported that the Victorian Director of Public Prosecutions, Kerri Judd KC, had made complaints to the Judicial Commission of Victoria about two judges: Justice Lasry of the Supreme Court of Victoria, and Judge Chettle of the County Court of Victoria. In the complaint against Lasry J, the Solicitor for Public Prosecutions, Abbey Hogan, alleged that his Honour’s criticisms of the VDPP in DPP v Tuteru had ‘the real tendency to diminish [(1)] public confidence in the administration of justice in Victoria [and (2)] the confidence of litigants and the public in general in his Honour’s integrity and impartiality’. Shortly after being made aware of the complaint, Lasry J in open court announced that he would resign even though he ‘utterly rejected’ the allegations made against him.

In this post, we do not make any comment on the merits of the complaints against Lasry J and Judge Chettle. Rather, taking a step back from the Victorian saga, we argue that there are strong normative and legal reasons as to why the executive should exercise restraint before making a formal complaint against a judge. We begin by explaining why formal complaints made by the executive against the judiciary should be the exception rather than the norm. This is followed by an illustration of the other mechanisms available for securing judicial accountability that better uphold a culture of comity between the executive and the judiciary

Chris Honnery

In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, a five-judge bench of the High Court sitting in its original jurisdiction considered the construction, validity, and operation of Direction 90, a written direction given by the Minister to guide decision‑makers in exercising powers under s 501 of the Migration Act 1958 (Cth).

This post focuses on two of the aspects of the High Court’s unanimous judgment that will have broader ramifications for decisions to refuse or cancel visas on character grounds.

Kate Bones

The deportation of people who have lived in Australia for most of their lives – since they were children, or sometimes infants – has become an increasing feature of Australian immigration law over the last few decades. Two recent decisions of the High Court address a particular aspect of that practice: the consideration in visa cancellation decisions of offences committed when a person was a child.

Joe McIntyre

Judicial (and quasi-judicial) appointments  are one of those topics that judicial scholars can get really animated about, but which for the majority of the public and political classes is a bit of a nothing burger. We are blessed in this country with a judiciary with a well-deserved high reputation for quality and integrity.

It takes something pretty extraordinary for the public to care about judicial appointments, and for the media to pay any attention. Unfortunately, the recent history of appointments to the AAT provides just such a cautionary tale.

This post unpacks that background context of the role politicised appointments played in the death of the AAT, before examining how the ART Bill reforms Tribunal appointment procedures. In the final part, it explores the potential broader implications of these new processes.

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.

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).

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.

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).

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.