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].

Theunis Roux

There have been two significant developments in comparative constitutional studies over the last decade. First, the rise of authoritarian populism in Europe and the Americas has produced an outpouring of literature on the causes of this phenomenon and what can be done to protect constitutional democracies against it. Second, after a long and mysterious delay, the Global South critique has finally arrived in the field – hauling it kicking and screaming into, not quite the twenty-first century, rather something more like the 1980s in the humanities after Edward Said’s intervention – with a lot of ground still to make up.

Ben Schonthal

I fear this piece will be both less and more than what is asked for.

It will be less in that I do not consider myself an expert on Global South constitutionalism, but only an observer of one slice of it: the constitutional systems of South and Southeast Asia. And my true expertise is even narrower than that. My research explores what happens when national constitutions confront another major source of normativity in nation-states: the one that Hirschl and Shachar have called the ‘rival’ to constitutional law, namely religion.

My comments may be more than what’s asked for in that I tend to take a wider view of comparative constitutional law than is typical at public law conferences. I am a social scientist who writes about people and topics that don’t always find their way onto the pages of the International Journal of Constitutional Law. Yes, I consider the work of judges, lawmakers and national constitutions. But I also think about Buddhist monks, protest leaders and firewalkers. For me, they are also constitutional actors—or so I hope to persuade you.

So I offer these comments with humility.