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The latest issue of the Australian Journal of Administrative Law (Volume 32 Part 1) contains the following material:
EDITORIAL – General Editors: Professor Matthew Groves and Professor Greg Weeks
Articles
Notice, Nullity and No Natural Justice: Constitutional Precariousness of Section 76AAA – Jason Donnelly
This article argues that recent amendments to the Migration Act 1958 (Cth) – in particular ss 76AAA, 189, 196 and 198AHB – create an architecture that is fundamentally incompatible with Australian administrative-law values. By allowing a Bridging (Removal Pending) visa to cease automatically once a non-citizen gains even conditional “permission” to enter a third country, and by expressly excluding the rules of natural justice, s 76AAA triggers a statutory pipeline to mandatory, potentially indefinite detention under ss 189 and 196. Section 198AHB simultaneously empowers the Commonwealth to support opaque thirdcountry reception arrangements with minimal scrutiny. The article demonstrates that the scheme undermines procedural fairness, violates the principle of legality, strains the constitutional separation of judicial power, and positions Australia as an international outlier. It concludes with a suite of legislative and doctrinal reforms designed to restore fairness, legality and human dignity.
Legal Profession Regulation: Time to Hear from Aggrieved Clients and Consumers – Caroline Morgan
The Legal Profession Uniform Law (Vic) (Uniform Law) regulates the vast majority of lawyers in Australia through the application of a uniform law framework. One of its key objectives is to protect clients and the public. This article examines who among these stakeholders receives procedural fairness hearing rights in the context of complaint handling about lawyers. It does so by reference to both the common law and statute. It then considers who should receive procedural fairness using the legal and philosophical justifications for the doctrine along with the regulatory objectives of the Uniform Law. Ultimately, this article argues for an extension of procedural fairness hearing rights to aggrieved clients and consumers by an amendment to the Uniform Law. This proposal builds on a novel provision in the Uniform Law that already provides complainants with the right to make a written submission in response to a draft disciplinary matter determination about the conduct of a lawyer.
The Emergence of the “Judge over the Shoulder” in Dangerous Prisoner Decisionmaking – John Shanahan
Preventive regimes have appeared upon the Australian legal landscape before. However, they have never appeared in such a concerted way, across State, Territory and Federal jurisdictions. The current proliferation permits greater than ever post-detention supervision of individuals beyond any court mandated sentence, on the basis of risk. A fact which marks a fundamental shifting of paradigms; whereby our legal system moves away from the punitive and rehabilitative principles historically underscoring criminal justice towards the acceptance of civil schemes, predicated on a primary concern for community protection. With such a significant shift away from the interests of the individual; the remnant rights of those placed upon such orders becomes a matter of piquancy. It is in this context that two recent cases are discussed: Fuller v Lawrence and Wallace v Tannock. These cases confirm for the first time – the ability of such individuals to have recourse to judicial oversight (the judge over the shoulder) for day-to-day decisions relating to their supervision.
Abramov v Minister for Foreign Affairs (No 2) concerned a Russian national who challenged the Minister of Foreign Affairs’ decisions to “designate” and “declare” him twice under reg 6 of the Autonomous Sanctions Regulations 2011 (Cth) (the Regulations) (which were supported by s 10(1)(a) of the Autonomous Sanctions Act 2011 (Cth) (the Act). One of the key issues in the case was whether the Act and Regulations excluded a duty of procedural fairness for the making of regulations designating persons and entities. This article critiques the Court’s holding that procedural fairness was excluded on the basis that the Court’s analysis overlooked the difference between the presence and content of procedural fairness, as well as the importance of protecting individual interests.
For the PDF version of the table of contents, click here: New Westlaw Australia – AJ Admin L Vol 32 No 1 Contents.
Click here to access on New Westlaw AU
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