(Selection of excerpts published in Developments, Vol 23 Pt 4 (Dec 2012) of the Public Law Review)
FEDERAL GOVERNMENT DELAYS REFERENDUM ON INDIGENOUS CONSTITUTIONAL RECOGNITION
The federal government has decided to delay any referendum on the recognition of Indigenous Australians. The decision to delay the referendum, which was originally planned to be held before the next federal election, has been attributed to lack of community awareness and support for the referendum. In the shorter term, the government plans to seek passage of an Act of Recognition, worded to reflect the constitutional changes proposed by the expert panel that reported to the government on the issue of Indigenous constitutional recognition in January 2012. See Macklin J, “Progressing Indigenous Constitutional Recognition”, Media Release (20 September 2012), http://www.jennymacklin.fahcsia.gov.au/node/2098 viewed 31 October 2012.
DOES TOBACCO PLAIN PACKAGING LEGISLATION BREACH OF s 51(xxxi)?
The High Court has published its reasons for upholding the validity of the Tobacco Plain Packaging Act 2011 (Cth) in the face of a challenge based on s 51(xxxi) of the Constitution. A six-judge majority (Heydon J dissenting) held s 51(xxxi) was not engaged by the legislation as it did not provide for the “acquisition” of any property. To engage s 51(xxxi), the Act must result in the “accrual” to some person of a proprietary interest or benefit. Despite its regulation of the packaging of tobacco products, it was held that the Act did not confer any property rights on the Commonwealth or any other person. See JT International SA v Commonwealth  HCA 43.
ACT EXPANDS HUMAN RIGHTS ACT TO INCLUDE THE RIGHT TO EDUCATION
The Australian Capital Territory legislature has amended its Human Rights Act 2004 (ACT) to include the right to education. The right is the first right to be included in a new Part of the Act related to economic, social and cultural rights, primarily sourced from the International Covenant on Economic, Social and Cultural Rights. Associated amendments to the Act exempt the new section from those with which public authorities must act consistently. The amendments also include a requirement for the Attorney-General to prepare a report in relation to the rights included in this new Part of the Act, including recommendations as to whether further rights should be included as well as whether public authorities should be required to act consistently with this new set of rights. See Human Rights Amendment Act 2012 (ACT).
ADMINISTRATIVE REVIEW COUNCIL HANDS DOWN REPORT ON STATE OF FEDERAL JUDICIAL REVIEW
The Administrative Review Council has handed down its report on judicial review, making several recommendations. The Council has recommended alteration of the current system of federal judicial review by expanding the jurisdiction of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) to encompass matters that also lie within the jurisdiction of the High Court under s 75(v) of the Constitution. In addition, it recommended that a further schedule be added to the Act to list certain preliminary reports and recommendations by the executive to clearly indicate these can be subject to judicial review, as well as the removal of the current exemption of decisions made by the Governor-General. It was also recommended that the separate review procedures provided by the Taxation Administration Act 1953 (Cth), as well as the Migration Act 1958 (Cth), should be maintained, but noted that further avenues for review outside the ADJR Act should not be created without a compelling reason to do so. In relation to standing procedures, the Council recommended that the ADJR Act should be amended to allow applications for review “if the decision relates to a matter included in the objects or purposes of the organisation or association”. In order to facilitate the availability of reasons, the Council also recommended that a failure to provide those reasons should be a factor taken into account when making a costs order. However, it was also recommended that, unless otherwise ordered by the court, the parties should pay their own costs. See Australian Review Council, Federal Judicial Review in Australia, Report No 50 (September 2012), http://www.arc.ag.gov.au/Publications/Reports/Pages/Reportfiles/ReportNo50.aspx viewed 31 October 2012.
Citation: (2012) 23 PLR 290