The High Court has reiterated the primacy of deterrence in determining civil penalties, reinstating the maximum penalty against a serial offender. The majority held that the purpose of deterrence was not constrained by notions of proportionality, that might otherwise be drawn from the criminal law.
Category: Public Law
The Court of Appeal’s December 2021 decision in WEQ returned to the vexed issue of the scope and duration of a proceeding suppression order.
The recent High Court decision in Ridd v James Cook University provides guidance as to the interpretation of “intellectual freedom” provisions in University Enterprise Agreements, underscored by a broad definition of “intellectual freedom”.
(Or: Tsundoku, being the practice of acquiring reading materials and letting them pile up in the hope of reading them “later”.)
Recent decisions for the reading lists of those with an interest in public law.
The High Court’s February 2021 decision in Benbrika considered whether the conferral of power on a Supreme Court to make a continuing detention order under the Criminal Code (Cth) was contrary to Chapter III of the Commonwealth Constitution.
The High Court’s May 2021 decision in MZAPC explores the relevance of materiality to jurisdictional error and when, how and by whom it is to be demonstrated.
In a decision with broader public law implications, the High Court held that, absent actual loss or injury, successful plaintiffs can expect no more than an award of nominal damages to vindicate an infringement of their rights, and that ‘vindicatory damages’ have no place in Australian common law.
In a joint judgment, a Full Court of five members (Allsop CJ, Kenny, Besanko, Mortimer and Moshinsky JJ) held that the power in s 501 of the Migration Act 1958 (Cth) to refuse to grant a visa can be used to refuse an application for a protection visa, even if the applicant otherwise satisfies the protection visa criteria.
A unanimous (five Justice) High Court approval of the apprehended bias test in Ebner v Official Trustee in Bankruptcy. Three Justice majority conclusions about the application of the Ebner test, and the requirement of materiality in a jurisdictional error before a decision will be invalidated.
Exploring the impact of the COVID-19 pandemic on law and jurisprudence.
A majority of the Full Court of the Federal Court has found that fraud by an agent can stultify the function of a tribunal. The fraudulent conduct need not be of the ‘red blooded’ species proscribed by the common law.
Can a court issue an injunction to restrain a third-party from taking action that would threaten the subject of judicial review proceedings after it has set aside a decision and ordered that it be remade according to law?
In Australia, it is presently unclear whether and to what extent the unreasonableness ground applies to administrative action based on non-statutory executive power. Earlier this year, Robertson J handed down a decision which advances the limited jurisprudence in this area.
The High Court has dismissed yet another challenge to state legislation relying on the Kable principle. The case concerned legislation that gives very broad power to courts. The Court’s split decision exposes a significant division on the Court as to the nature of judicial power.