Tamara Tulich and Sarah Murray

On 7 September 2022, the High Court handed down its decision in Garlett v Western Australia [2022] HCA 30 (Garlett) upholding, by a 5:2 majority, the validity of item 34 of Sch 1 of Div 1 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) on the basis that it did not infringe the principle established in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 (Kable). The constitutional reasoning of the High Court in Garlett follows the pattern of Vella v Commissioner of Police (NSW) [2019] HCA 38 (Vella) and Minister for Home Affairs v Benbrika [2021] HCA 4 (Benbrika) with Gageler J and Gordon J dissenting from the rest of the Court in relation to the constitutionality of the risk assessment role being conferred on ‘courts of a State’. However, the case also provides important new insights on Chapter III of the Commonwealth Constitution (Ch III) in that a minority of the Court identified a role for the principle established in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] 176 CLR 1 (Lim) beyond the federal court context to state courts and, relatedly, new strands of convergence in Ch III jurisprudence. .

David Hume

In SDCV v Director-General of Security [2022] HCA 22, the High Court held, 4:3, that it was constitutionally-permissible for the Federal Court to have regard to 'closed' information, which was known to the Court and the Government’s lawyers, and was the subject of 'closed' submissions involving the judges and the Government’s lawyers but was not disclosed to SDCV or his lawyers. The key issue in the case was whether the statutory scheme established by the Administrative Appeals Tribunal Act 1975 (Cth) – which permitted the Federal Court to rely on closed information, while prohibiting it from being disclosed to SDCV – required or permitted the Federal Court to act in a procedurally unfair way.

In this post, I first address the factual and procedural background (which are interesting in and of themselves); secondly, I address some key aspects of the majority’s reasoning; and, thirdly, I make some observations on the reasoning and outcome.

The Hon William Gummow AC

When the Judiciary Committee of the 1891 National Australasian Convention, under the Chairmanship of Andrew Inglis Clark, prepared its report (which is reproduced in Judicial Federalism in Australia: History, Theory, Doctrine and Practice at pp 208 to 210), there were in operation in what today could be identified …

Brendan Lim

History, theory, doctrine and practice. The subtitle of this splendid new book by Gabrielle Appleby, Anna Olijnyk, James Stellios and John Williams, Judicial Federalism in Australia: History, Theory, Doctrine and Practice (Federation Press, 2021), reminds us of the many different resources on which we can draw in …

Sarah Murray

Appleby, Olijnyk, Stellios and Williams’ book, Judicial Federalism in Australia – History, Theory, Doctrine and Practice (2021, Federation Press), is nothing short of a constitutional law aficionado’s delight – unravelling the mysteries and twists and turns of Kable through the combined expertise of the authors and the historical, doctrinal …

Sangeetha Pillai

It’s coming up to the 30th birthday of Australia’s policy of mandatory immigration detention for non-citizens who do not hold a visa. Throughout its lifetime, the policy has remained a controversial cornerstone of Australia’s migration law framework, facing – and withstanding – multiple High Court challenges.

Tristan Taylor

In 1996, the High Court struck down the validity of an ad hominem continuing detention legislative regime in the landmark case of Kable v Director of Public Prosecutions (1996) 189 CLR 51 (Kable). The principle established in that decision, has undergone significant development since. As it stands today, the principle will …

Isolde Daniell

The Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 (Cth) (the Bill) was introduced to the Commonwealth House of Representatives on 10 December 2020. It has since been considered by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights, and …