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The latest issue of the Public Law Review (Volume 32 Part 1) contains the following material:

COMMENTSEditor: Dan Meagher

  • Chetcuti v Commonwealth: Justice Nettle’s Last Words – Elisa Arcioni
  • The Victorian COVID-19 Response: Reflections on Loielo v Giles – Bruce Chen
  • Direct Democracy, Parliament and the Voters: Aotearoa New Zealand’s Twin 2020 Referendums – Florence Dean

Articles

More Than a Mere Piece of Paper: Citizenship, Character and Allegiance in Australian Law – Helen Irving

In recent years, proposals to make Australian citizenship by conferral harder to acquire have been debated, and these proposals have been contextualised in, among other things, concerns about potential acts of disallegiance by Australian citizens and foreigners living or operating in Australia. In this context, executive refusals of applications for citizenship by conferral have become more frequent. Concerns about the character of applicants for citizenship have also been heightened. This article explores these concerns and associated claims through an examination of Administrative Appeals Tribunal (AAT) appeals (from 1993 to 2019) against ministerial refusals of citizenship by conferral on character grounds. It considers how the AAT understands “good character”, including against an idea of Australian citizenship conveyed in the Australian Citizenship Act 2007 (Cth) and other official documents. It also explores whether the record reveals a harsher, or alternatively, a more lenient approach on the AAT’s part to determining whether an applicant is or is not of “good character”.

Frank and Fearless: Public Servants and Political Communication – Alexander Reilly and Sawinder Singh

In Comcare v Banerji, the High Court held that the termination of a public servant’s employment under the Public Service Act 1999 (Cth) (PSA) did not infringe the implied freedom of political communication. The article considers the significance public servants’ political communication for a healthy democracy. It argues that the burden the PSA places on this communication is extensive and that there needs to be much greater scrutiny of what is required to maintain an “apolitical” public service. The article explores how the constitutional freedom can be interpreted consistent with earlier case law to limit the scope of the power to terminate the employment of public servants for their expression of political ideas. It concludes by outlining some of the criteria a disciplinary body ought to be required to take into account under the Code for the Code to be a valid exercise of Commonwealth legislative power.

On the Wane? The Principle of Legality in the High Court of Australia – Dan Meagher

In 2018, Chief Justice Bathurst of the New South Wales Supreme Court observed extrajudicially that there are “signs of waning” on the High Court regarding the principle of legality. The case analysis to follow supports that view for the most part. The Court’s commitment to the modern – contextual – approach to statutory interpretation has tempered the strictness with which it has applied legality in fundamental rights cases. The doctrinal vehicle used in order to do so is a more flexible conception of “necessary implication”. Yet this refinement of interpretive principle does not, necessarily, signal that legality is permanently on the wane. Relevantly, it will be suggested that there are at least three contexts where it still may play an important role in determining the legal meaning of a statute.

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For the PDF version of the table of contents, click here: PLR Vol 32 No 1 Contents.

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