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The latest issue of the Australian Journal of Administrative Law (Volume 25 Part 2) contains the following material:
EDITORIAL – General Editors: Greg Weeks and Matthew Groves
- Natural Justice Beyond Individual Affectation
CURRENT ISSUES – Editors: Justin Davidson, Katie Miller and Stephen Tully
- A Fine State of Affairs: Reforms to Victoria’s Infringement System – Katie Miller
CASENOTE – Editor: Nathalie Ng
- Legal Professional Privilege and AAT Act, s 38AA: Buttigieg v Comcare  AATA 1002 – Kasper Maat and Laura Hilly
Separation of Powers – Dialogue and Deference – John Basten
This article is an edited version of the 2017 Harry Whitmore Lecture, under the auspices of the Council of Australasian Tribunals, delivered on 17 October 2017. It explores whether there is a role for a doctrine of deference in dealing with legislation and administrative decision-making. While many judges have been squeamish about the language of “deference”, the author argues that there is a legitimate interest in exploring the process by which “constructional choices” are made.
Applicants for Australian citizenship must demonstrate that they are persons of good character. Under current Australian law, applicants who fail to meet the character test under the Australian Citizenship Act 2007 (Cth) continue to hold their permanent residency visas. In that context, this article broadly advances two essential arguments. First, it is contended that where a non-citizen fails the character test under the Australian Citizenship Act 2007 (Cth), such a finding demonstrates that the non-citizen also fails the first limb of the character test under ss 501(2) and 501(6)(c) of the Migration Act 1958 (Cth). In support of this contention, it is demonstrated that similar legal principles are relied upon by decision-makers in applying the character test under both pieces of legislation. Second, this article argues that where a non-citizen is determined to have failed the character test under the Australian Citizenship Act 2007 (Cth), a mandatory legislative obligation should be imposed on the Minister for Home Affairs to consider whether the non-citizen’s permanent residency visa should also be cancelled on character grounds under s 501(2) of the Migration Act 1958 (Cth).
The proposition that governmental actors must extend procedural fairness to applicants for statutory rights, subject only to clear contrary legislation, has become a background assumption of Australian administrative law. However, experience in the migration context highlights a form of legislation that disrupts the presumptive operation of procedural fairness in application cases – namely, legislation for procedural non-compellability. This article describes how non-compellable powers disrupt the presumptive operation of procedural fairness in application cases. Drawing on this analysis, it proposes that an effective doctrinal response to the phenomenon will require courts to re-engage with the common law foundations for procedural fairness to applicants.
BOOK REVIEWS – Editor: Janina Boughey
- Legitimate Expectations in the Common Law World, by Matthew Groves and Greg Weeks (eds) – Reviewed by Bruce Dyer
- Reconstructing Judicial Review, by Sarah Nason – Reviewed by Matthew Groves
For the PDF version of the table of contents, click here: AJ Admin L Vol 25 No 2 Contents.
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