Chris Honnery

‘A sentence of death.’ The title of Edelman J’s dissenting judgment in Plaintiff M1/2021 v Minister for Home Affairs (M1) captures the stakes of visa cancellation matters in which a former visa holder claims to face serious harm in their country of origin.

In M1, the High Court addressed whether a decision maker is required to consider claims that raise a potential breach of Australia's international nonrefoulement obligations when determining if there is ‘another reason’ to revoke a mandatory visa cancellation under s 501CA of the Migration Act 1958 (Cth) (the Act). By majority, the High Court held that it is permissible to ‘defer’ consideration of non-refoulement claims raised in a request to revoke a visa cancellation on the basis that these claims will be assessed in a protection visa application.

Megan Davis

The commitment by Prime Minister Anthony Albanese to a referendum in his first term of government puts lawyers squarely in the frame of influence over the coming years. Referendums are rare in this country. The last one was in 1999, and the last successful referendum was in 1977. Referendums are one occasion that Australians do want to hear the views of lawyers. And this is a serious responsibility for all of us.

Megan Davis

Stephen McDonald SC

Each of the paragraphs of s 75 and s 76 of the Commonwealth Constitution identifies a class of matters with a federal aspect. The scheme of the Constitution is that matters of those kinds can only be determined in the exercise of judicial power by ‘courts’. Section 77 of the Constitution enables the Commonwealth Parliament to determine the extent to which judicial power in such matters is exercised by the High Court, other federal courts, and state courts.

State Parliaments may create tribunals which are not ‘courts’, and may confer upon such tribunals aspects of both the administrative power and the judicial power of the state. However, the power of state Parliaments with respect to state non-court tribunals does not extend to investing them with judicial power to decide matters of the kinds identified in ss 75 and 76 of the Constitution. A general grant of jurisdiction to a non-court tribunal under state law will thus be construed as excluding jurisdiction over matters of those kinds.

These principles were established by the High Court’s decision in Burns v Corbett [2018] HCA 15; 265 CLR 304. Burns v Corbett had involved a claim in a state non-court tribunal between residents of different states – the subject matter identified in s 75(iv). The recent decision of Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 concerned the application of these principles in a different context: it concerned a claim that was said to give rise to the kind of federal matters identified in sub-ss 76(i) and 76(ii) of the Constitution. This post will discuss the decision in Citta Hobart, before turning to the practical problems posed by the substantial limits – confirmed by these two cases – on state legislative power in respect of the jurisdiction of state non-court tribunals.

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Catherine Williams

Upwards of $55 billion has been spent on Commonwealth grants programs since mid-2018, when the current Prime Minister came to power. In that period, there has been a series of findings of maladministration – and worse – by the Australian National Audit Office (ANAO) in respect of Commonwealth grants programs, giving rise to an urgent need for reform in this area.

Dani Larkin, Harry Hobbs, Dylan Lino and Amy Maguire

In the wake of the historic 1967 referendum extending the Commonwealth Parliament’s legislative power in Indigenous affairs, Prime Minister Harold Holt made a prediction to his Cabinet that the electorate would undoubtedly look increasingly to the Commonwealth Government as the centre of policy and responsibility regarding Aboriginal and Torres Strait Islander affairs. That prediction proved true.

Lael K. Weis

With the federal election just a few weeks away, the next Commonwealth Government may be tasked with bringing forward one or two major proposals for constitutional change: the proposal for a constitutionalised First Nations Voice to Parliament set out in the Uluru Statement from the Heart, and the proposal for Australia to be a republic set out in the Australian Republican Movement’s Australian Choice Model.

Welcome to the May edition of the AUSPUBLAW Australian Public Law Events Roundup.