Ruchira Abeyratna

The Robodebt Royal Commission Report, published in July 2023, was a sobering reminder of the dire consequences of ineffective government accountability. The Albanese Federal Government’s recent commitment to adopting all the recommendations of the Royal Commission, at least in principle, represents a potential step towards preventing future disastrous misadministration. However, healing the wounds inflicted by the Robodebt scheme requires more than political promises. It requires substantial reflection and discourse on how public institutions should operate to effectively hold the government accountable.

This article will posit that while the judiciary adequately scrutinised the government’s administration of Robodebt, its dispute-dependency meant that justice was far from immediate. Thus, non-judicial institutions must be adequately empowered to take proactive and rapid action when the government acts unlawfully or against the principles of good government. I advance two suggestions on how this can be achieved. Firstly, imposing a positive duty on the Ombudsman to act when it reasonably suspects unlawful or unprincipled governmental conduct. Secondly, bolstering the protection of non-judicial accountability institutions from governmental interference.

Marco Rizzi, Fiona McGaughey and Alex Gardner

In August 2023, Senator David Pocock introduced to the Senate the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth) (‘the Bill’), which seeks to establish a statutory duty of care to avert harm to the health and wellbeing of current and future Australian children by the Commonwealth Government when making decisions that may cause significant greenhouse gas emissions. The explanatory memorandum to the Bill describes climate change as ‘having increasingly significant impacts in Australia, in the Pacific region and across the globe’ and outlines how the damage to ‘Australia’s economic prosperity, environment, and our health and wellbeing is severe and getting worse’.

This post articulates how the Bill addresses key gaps and delays in common law and legislation, improves Australia’s compliance with international law, and has the potential to create a useful climate change mitigation governance tool.

Anne Twomey

An arresting opening line is essential if one is to entice readers into an intimidating tome. The High Court’s judgment in Vanderstock v Victoria [2023] HCA 30 (Vanderstock) is certainly a tome, concluding at paragraph [951] and page 384. But the arresting line does not appear until paragraph [8]. Journalists would call this ‘burying the lede’.

In paragraph [8], the joint judgment of Kiefel CJ, Gageler and Gleeson JJ explained that the cases of Capital Duplicators Pty Ltd v Australian Capital Territory (1993) 178 CLR 561 (Capital Duplicators [No 2]) and Ha v New South Wales (1997) 189 CLR 465 (Ha) should not be re-opened. This was because, they said, ‘the Court could not justify now taking the momentous step of unsettling the resultant constitutional doctrine’ set out in these cases and because the current federal-state financial arrangements are ‘not to be judicially disturbed’.

Why that is such an arresting, or perhaps more accurately breathtaking, statement is that the judgment proceeds to do precisely what it said it could not justify doing: establishing a new ‘high constitutional purpose’ for s 90; establishing a new test for an excise; extending excise to taxes related to the ownership, hiring or usage of goods, or indeed anything that affects the demand for goods, thereby creating high levels of uncertainty about the validity of State taxes; and up-ending existing Commonwealth-State financial relations.

Emily Hammond and Rayner Thwaites

Within the space of 18 months the High Court of Australia has delivered three judgments on the constitutional validity of ministerial powers to revoke citizenship. Benbrika v Minister for Home Affairs [2023] HCA 33 (‘Benbrika 2’), and Jones v Commonwealth of Australia [2023] HCA 34 (‘Jones’), handed down on 1 November 2023, join last year’s decision in Alexander v Minister for Home Affairs [2022] HCA 19 (‘Alexander’). Central to all three cases is the question: what constraints does Ch III of the Constitution impose on laws for citizenship deprivation?
In this post we explain how the authorities cohere to establish a clear structure for evaluating whether ministerial citizenship stripping powers comply with Ch III. Moreover, these cases further cement the proposition that by operation of Ch III, the Commonwealth cannot impose punishment on any basis other than breach of the law by past acts. This limitation on Commonwealth power to punish is emerging as the key organising principle for evaluating whether citizenship stripping powers — including judicial powers exercised by courts — are compatible with Ch III.

Laura John, Josephine Langbien and Sanmati Verma

Late in the afternoon on the final day of the hearing in NZYQ, Chief Justice Gageler announced that the High Court would ‘adjourn momentarily to consider the course it will take’. When the hearing resumed a mere 16 minutes later, the Chief Justice declared that ‘at least a majority of the Court’ considered that the detention of the plaintiff was unlawful. With that, the High Court overturned an almost 20-year legal precedent established in Al-Kateb that had permitted the Executive Government to detain non-citizens indefinitely. In the aftermath, a political and media furore saw the Albanese Government rush unprecedented laws through Parliament to create a shadow detention regime for those released from immigration detention.

This article charts the road from Al-Kateb to NZYQ, discusses the Parliament’s extraordinary legislative response and offers some thoughts on what might follow as the Government attempts to reformulate its approach to immigration detention. We warn that – in the aftermath of one of the most significant constitutional cases in decades – we should not continue further down a path that punishes people on the basis of their visa status. Instead, we should take this opportunity to overhaul a deeply flawed system.