Leslie Gonye

I commend Ben Saunders on his book Responsible Government and the Australian Constitution. He has produced an accessible work that diligently examines and threads together a vast volume of material to argue the importance of historic context in understanding the Constitution regarding responsible government. This is key, as the provisions in the Constitution that concern the executive are relatively few and as responsible government is fundamentally political, there is plenty of scope for principles to evolve for governments to operate for the sovereign people of Australia to govern themselves in the manner they deem best (Saunders, p 207).

James Stellios

In this comment I offer observations on Associate Professor Saunders’ book, Responsible Government and the Australian Constitution (Hart, 2023) (Saunders), focusing primarily on the doctrinal implications of the book’s thesis. I will start by reflecting on the institutions of ‘representative and responsible’ government. While often presented as a composite expression, the institutions are distinct in principle, and that distinctiveness might have important implications for the role of judicial review. Further complicating the place of judicial review within the constitutional system is the tension created by the combination of political and legal constitutionalism, as each conception of constitutionalism contemplates a different means for controlling government power. Finally, I briefly reflect on the doctrinal implications of these constitutional features.

Michael Legg and Felicity Bell

At the end of 2023 the Australian public were captivated by the defamation case of Bruce Lehrmann v Network Ten Pty Limited (Lehrmann v Network Ten). Mr Lehrmann alleged that he had been defamed by the reporting of an interview with former parliamentary staffer Brittany Higgins, who alleged that she had been raped at Parliament House in the early hours of 23 March 2019. Mr Lehrmann was not named but it was alleged that the reporting indicated that he was the perpetrator. Judgment was handed down in April 2024. Justice Lee of the Federal Court found, on the balance of probabilities, Mr Lehrmann raped Ms Higgins at Parliament House in 2019 and Mr Lehrmann’s claim failed (Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 (Lehrmann (Trial Judgment))).

Attention then switched to the question of costs. While the media has focused on the sheer level of costs — reporting that some of the many counsel involved in the proceedings charge upward of $8000 per day — the Lehrmann case illustrates the dual costs risks of litigating civil matters in Australia. These are that you may have to pay both your own lawyers, and the legal costs of your opponent/s if you are unsuccessful.

William Partlett

In February 2024, the High Court held in AB v IBAC [2024] HCA 10 that individuals facing an ‘adverse’ finding in a report issued by Victoria’s anti-corruption commission, the Independent Broad-Based Anti-Corruption Commission (‘IBAC’), must be given broad access to the evidentiary material that justified that finding. In response, commentators have worried that this kind of ruling would damage the public interest, slowing down the release of anti-corruption reports while individuals litigate their ability to adequately respond to allegations.