The latest issue of the Australian Journal of Administrative Law (Volume 18 Part 4) contains the following material:
- New Federal Court Rules
- Free exercise of religion
- Administrative law and clemency
Judicial review after Kirk v Industrial Court (NSW) – Joshua P Knackstredt
The High Court’s recent decision in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 is likely to become regarded as a seminal case in the development of Australian administrative law for two reasons. First, the decision extends federal jurisprudence on the interpretation of privative clauses to the State context. Secondly, the decision confirms the broad and almost unconfined concept of jurisdictional error. The consequences of the decision are potentially far-reaching and cannot be easily predicted. However, three possibilities are posited. First, the decision might ultimately result in the invalidity of State legislation which prescribes limitation periods for judicial review applications. Secondly, the decision may herald the development of case law establishing that legislation restricting the grounds of judicial review is invalid for the same reasons that privative clauses are either read down or struck down. Finally, it may also result in an increase in the number of cases alleging novel instances of jurisdictional error.
Australia has a number of agencies that seek to regulate and enforce the law. Many of these agencies have powers of civil, administrative and criminal enforcement. When agencies bring matters to court there is inevitably a balancing act between the objective of having all relevant evidence available and protecting other rights such as fairness to the accused, equitable confidences, legal professional and penalty privilege and the privilege against self incrimination. The law also seeks to discourage sharp or at least unlawful practice in the obtaining of evidence. Where confidences or other privileges are enforceable, issues arise in relation to the ability of agencies or lawyers to utilise confidential or privileged information directly or indirectly. There may be a slightly stricter approach to lawyers (certainly when in private practice but also arguably when working in-house for agencies as well) than for other investigative staff but there are also questions about whether the latter too might be enjoined from utilising confidential information. Chinese walls provide a possible structural solution to some of these problems though courts remain somewhat sceptical about their use in law firms and they appear to be still uncommon in agencies.
One of the limitations of the few written rights guarantees in the Australian Constitution is that they typically refer to Commonwealth laws only. Specific examples include the right to trial by jury, right to due compensation if property is confiscated by the government, and freedom of religion. In this article, I argue that it would be desirable to extend these guarantees to protection against State laws taking away these rights. There is no reason in logic to confine them to federal laws only. Extension of rights in this way finds support in the American case law on the extension of that country’s Bill of Rights provisions to the States, as well as some Australian jurisprudence concerning s 122 of the Constitution.
CIVIL AND POLITICAL RIGHTS – Steven Churches
- Crown advantage, Crown personality: The need to employ the principle of legality in a non-Bill of Rights Australia
WORK AND EMPLOYMENT – Graeme Orr and Joo-Cheong Tham
- Paid parental leave: Welfare or workplace right?
CASENOTES – Rebecca Heath
- British American Tobacco Australia Services Ltd v Laurie
For the pdf version of the table of contents, click here: AJ Admin L Vol 18 Pt 4 Contents.