Abstract
CURRENT ISSUES IN AUSTRALIAN CONSTITUTIONAL LAW, Vol 1
John Griffiths and James Stellios (eds); Federation Press, 2020; 336 pages; $165 (hardback)
ISSUES IN AUSTRALIAN CONSTITUTIONAL LAW, Vol 2
John Griffiths and James Stellios (eds); Federation Press, 2024; 272 pages; $180 (hardback)
The last few years have felt busy. I suppose, a lot has happened. A series of awful bushfires across Australia, a global pandemic, major armed conflict in Europe and the Middle East, and the first referendum since 1999. Closer to home, my wife and I welcomed a baby girl into the world. By the time we have finished dinner, bath and bedtime routines, it is hard to muster the energy to make our own dinner, let alone stay up to date with major constitutional questions. Thankfully, these two volumes edited by Justices John Griffiths and James Stellios and with contributions from a range of leading Australian experts provide a sharp overview of key current issues in Australian constitutional law. I was especially pleased to see that it is not just me – it has also been a very busy few years in constitutional law.
Each volume reproduces papers presented at the Leslie Zines Symposium series held at the Australian National University in 2018 and 2022. A third Symposium, with two sessions held in honour of the late Justice Paul Finn, was held in December 2024, suggesting a third volume will be ready shortly. Until then, we will have to be content with these two excellent volumes.
A short review of the topics illustrates the breadth traversed by these two collections. Volume I includes contributions on punishment and Ch III of the Constitution, executive power following the school chaplains’ cases, constitutional method, proportionality, and the legacy of Kable. Volume II comprises, among others, chapters on the Melbourne Corporations doctrine, injunctions in public law, and a series of explorations on COVID-19 and the Constitution: including whether the pandemic has reset understandings of federalism, the nationhood power, and the place of the individual in the Constitution.
The real significance of these texts, however, is in their depth. Authored by pre-eminent constitutional scholars in the academy, the bar and on the bench, the chapters tease out difficult and challenging doctrinal and policy questions that courts and governments are grappling with today. These issues are explored further by the addition of a short commentary by an equally leading authority following each chapter. These commentaries were particularly valuable, and I often found myself flicking between the main paper and commentary to ensure that I was following the thrust of the argument. This approach also had the happy effect of recreating the discussion and debate that marked the Symposium. Rather than merely reading the text at my desk, it almost felt like I was in attendance.
It is not possible to review each contribution, so I will limit myself to a few observations. First, the topics chosen in Volume I proved prescient; many have remained sites of interest in the years since. For example, Anne Twomey’s discussion on the executive power was very relevant during the pandemic, Justice Kirk’s exploration of s 92 was cited frequently in Palmer v Western Australia (2021) 272 CLR 505, and understanding proportionality – the focus of Adrienne Stone’s contribution – remains essential if one is to follow a whole host of case law in the High Court. For these reasons alone, the collections are required reading.
Second – with one obvious exception to be discussed in a moment – it is pleasing to see that notwithstanding significant pressures, our constitutional system of government seems to be working quite well. The pandemic exposed the fact that the Commonwealth (now) largely lacks the capacity to deliver large scale services, but the states and territories were generally able to step into the breach and ensure appropriate public health protections. In the absence of broad constitutional rights protections, the judiciary was generally content to defer to the executive in its determination of those measures. As James Stellios notes, this prevented second-guessing by an institution that did not have the necessary skill and expertise to make that determination (compared with the situation in United States) and ensured the democratically elected and accountable arm of government would justify and be judged for its decision-making. That said, in circumstances where governments suspended or adjourned parliaments for many months, this view loses a little persuasiveness.
Third, the exception relates to the situation facing Aboriginal and Torres Strait Islander peoples. The failure of the referendum to insert a Voice in the Constitution not only leaves their unique status unrecognised – an issue raised by the minority judgments in Love v Commonwealth (2020) 270 CLR 152 – but has made the landscape even less promising. In the wake of its defeat, governments and opposition parties across the country clamoured to announce that they would walk back their commitments to treaty-making. While Indigenous-State treaties, like those under negotiation in Victoria, will operate within the legal framework of the State, these instruments are properly recognised as constitutional in the ‘lower c’ sense. They comprise promises between diverse political communities to share land and governance and mechanisms that distribute political and legal authority. It was disappointing then that, although the Voice was discussed at the 2022 Symposium, the collection did not include a contribution on it or constitutional transformation more broadly.
The fourth and final observation concerns another challenge that looms on the horizon. The climate crisis may soon prompt new issues in Australian constitutional law. Is a system marked by institutional restraint and judicial deference capable of responding to the remorseless effects of climate change? My former colleague at the University of Technology Sydney, Dr Costa Avgoustinos has proposed an ecological limitation to the Constitution, arguing that the climate crisis may help unearth a constitutional implication that operates to limit statutory and executive power that contributes to greenhouse gas emissions. Even if the court will not be so bold, a host of other pressing issues will emerge. Australian constitutional lawyers can look forward to a few more busy years ahead.
JUDGING REFUGEES: Narrative and Oral Testimony in Refugee Status Determination
Anthea Vogl; Cambridge University Press, 2024; 174 pages; $182.95 (hardback)
Anthea Vogl’s Judging Refugees: Narrative and Oral Testimony in Refugee Status Determination has been published at a time when more than 100,000,000 (yes, that’s one hundred million) people from around the world have fled their homes in search of safety. Many of these people are seeking international protection, and receiving States are increasingly responding by implementing immigration policies of exclusion and deterrence. Against this grim backdrop, Judging Refugees delivers insight into the closed rooms of Refugee Status Determination (RSD) hearings to examine how refugee applicants are required to construct their oral testimony before decision makers.
The findings that Vogl presents in the book are drawn from a qualitative analysis of 15 refugee applicants’ oral hearings, all held between 2012 and 2015, before either the Immigration Review Board in Canada or the Refugee Review Tribunal in Australia (which was one of three tribunals merged into the Administrative Appeals Tribunal in 2015).
Vogl’s central argument is that RSD processes require applicants to present their evidence in a prescribed narrative form, while simultaneously constraining their ability to do so. Vogl connects the introduction of these oral hearings in Australia and Canada with the increasing State focus on the genuineness of refugee arrivals. She notes that, while the introduction of the statutory hearing in Australia and Canada significantly improved the fairness of the RSD process, it also took place within the context of both governments’ attempts to manage and control increasing numbers of onshore asylum applications.
In Chapter Four, Vogl introduces the stock narrative of becoming a refugee, or the familiar and culturally accepted narrative about the actions that ‘genuine’ refugees take when they seek asylum. Vogl describes the stock narrative as, when faced with danger and persecution, genuine refugees act decisively to flee persecution and their country of origin. After arriving, they seek protection at the earliest opportunity, and do not contemplate returning to their home country (p 66).
This stock narrative, writes Vogl, is the model against which refugee applicants’ testimony is judged, and how their testimony aligns with this stock narrative dictates the structure of the RSD hearing. Vogl characterises the stock narrative as a burden placed on refugee applicants – one that frequently impedes the way in which they are able to present their testimony.
This narrative of becoming a refugee exemplifies the Anglo-European narrative form in three respects – a temporal ordering of events, linear causal relationships between events in the story, and the extent to which the events form a clear structure which is identifiable as a ‘plot.’ The stock narrative casts refugee applicants as victims who are in need of rescue by a benevolent State. The victim must act in a direct, linear trajectory, moving toward the host state decisively, never hesitating. Deviations from this narrative will result in extensive questioning, and potentially negative findings.
In Chapter 5, Vogl describes narrative contests, which occur when decision-makers present their own narratives to applicants, who are then required to contend with those alternative narratives – a process akin to forensic cross-examination. Vogl asserts that the informal standards and broad discretion conferred upon decision-makers – features designed to mitigate the challenges of the RSD – have resulted in the unintended consequences of enabling decision-makers’ subjectivity to profoundly influence both how evidence is tested as well as the determination of a refugee applicant’s credibility. The applicant is required to account for the decision-maker’s counterfactual version of events and is expected to explain discrepancies between versions of the story that ‘ought’ to have taken place – which effectively alters the testimony of the applicant.
Chapter 6, I’ll Just Stop You There, deals with the fragmentation of refugees’ oral testimony during the oral hearing. Vogl describes the splintering of refugee testimony which occurs when decision-makers exert control over the process. Crucially, Vogl finds that, despite the expectation that refugee applicants will present their evidence in narrative form, they are restricted from doing so by decision-makers’ interruptions.
Vogl clarifies that the remedy does not lie in giving applicants the opportunity to present their uninterrupted testimony – her argument is that the applicant’s ability to narrate should not be a metric against which their ‘worthiness’ as future refugee-citizens is measured. That RSD procedures demand narrative coherence, while denying applicants the capacity to meet such demands, leads Vogl to the conclusion that the oral hearing and credibility criteria operate to deter and exclude refugees.
Chapter 7 focuses on the storytelling genre that refugee applicants must present to successfully move from outsider to acceptable refugee-citizen. Vogl identifies two aspects of refugee testimony that are required of applicants. First, that of the omniscient narrator, who is required to provide an all-knowing account of events, including those of other characters in their narratives, and especially those actions which have been deemed implausible by decision-makers. The second expectation is that of plot style, which must be considered credible by decision-makers – the linear journey from victimhood to self-actualised refugee-citizen.
Vogl notes that the source of the problem with these RSD processes is the power differential between asylum seekers and the State, and the State’s objectives of preventing people from seeking their protection. These systems are designed to identify some refugees as genuine and some as fake. In itself, this process is artificially binary, and the ‘good refugee’ frame rejects those who fall outside it.
Vogl’s book makes an important contribution to a niche field of interdisciplinary scholarship concerned with RSD processes and credibility assessments. This would be of particular interest to those who work in refugee law, and one could imagine that this body of work could form the basis of invaluable training for RSD decision-makers.
A CHILDREN’S RIGHTS ASSESSMENT OF JUVENILE DETENTION IN AUSTRALIA
Anita Mackay; Routledge, 2024; 238 pages; $220.50 (hardback), $68.84 (eBook)
The new book by Dr Anita Mackay, A Children’s Rights Assessment of Juvenile Detention in Australia, provides a detailed and comprehensive legal analysis of youth detention centres across Australia, and embeds this within the scholarly literature and discourse focused on this concerning topic. In alignment with the Foreword written by Anne Hollonds, the National Children’s Commissioner, Mackay highlights that youth detention centres are places in Australia where the most egregious human rights breaches against children have occurred. Furthermore, she emphasises that there needs to be a dramatic increase in resources for children and their families, in various forms, to prevent them from having contact with the criminal justice system in the first place.
The introductory chapter sets the context by employing a critical overview of the social determinants for children who become entwined in the criminal justice system. Mackay cautions the reader to be aware that, with regards to children detained ‘numbers and statistics are not neutral, and in settler colonial states they have often been deployed within a “deficit-based discourse” (p 15)’. The hyper-incarceration of First Nations children, which has been condemned by various United Nations bodies, is also discussed.
In any socially just society, the abolition of youth detention is the ultimate goal. However, according to the Australian Institute of Health and Welfare, each night around Australia around 800 children remain detained, despite various decarceration efforts in some jurisdictions. Mackay’s text is invaluable for all government agencies administering detention, including staff of detention centres (at all levels/roles), policy makers, as well as external advocates, to develop a strong understanding of the human rights standards to which detained children are entitled.
Mackay meticulously guides the reader through the intricate details of legislation and relevant case law framing these arrangements across our federation, and steps the reader through the web of applicable international human rights instruments, including the Optional Protocol to the Convention Against Torture (OPCAT). Mackay concludes that the legislation pertaining to youth justice detention in Australian states and territories is ‘out of alignment’ (p 82) with international rights-based frameworks.
A detailed overview of the various complaint and oversight mechanisms relevant to youth detention highlights inconsistences across the jurisdictions. Distressing and disturbing examples of children’s rights violations within youth detention across Australia are then examined. In conclusion, and in light of the overall dire situation of youth detention, Mackay proposes nine pillars for systemic reform, these being: (1) early intervention and prevention, (2) diversion, (3) abolition of detention, (4) children under the age of 14 are never detained, (5) detention is a “last resort” for children over the age of 14, (6) the goals of detention are rehabilitation and reintegration, (7) children are detained separately from adults at all times, (8) detention is rights-compliant and child-centred, (9) detention is subject to preventive monitoring and oversight (p 186).
While these components for reform have been discussed in literature elsewhere, individually, there is an immense benefit in bringing these points together in a synthesised and systematic manner. For anyone seeking a comprehensive legal understanding of youth justice detention across Australia, or for those involved in systems reform, Anita Mackay’s detailed text provides a unique contribution and is highly recommended.
JUSTICE IN TRIBUNALS
J R S Forbes; The Federation Press, 6
th
ed, 2024; 414 pages; $180 (hardcover)
The depth of Forbes’ knowledge and experience in matters relating to all sorts of Australian tribunals is immediately evident from the first page of Justice in Tribunals, and the author takes seriously his role in passing on that knowledge.
Practitioners across the administrative law spectrum are painfully aware that the jurisprudence relating to tribunals in Australia is continuously evolving. At times, it feels incredibly difficult to keep up. Yet, it is a testament to Forbes’ expertise that this text is into its 6th edition, having been edited or updated every four or five years since its initial publication in 2002. The text presents a coherent review of the state of the law relating to both domestic/private and statutory tribunals in Australia.
The sheer scope of the book is broad and spreads across 17 chapters, the first several describing the differences between the various types of tribunals in Australia, moving on to the nature of legal error, and the legal and practical considerations throughout the life of a tribunal matter. Readers are aided by a comprehensive glossary of cited cases and legislation referred to in the text, supplemented by a helpful index of commonly used phrases. Were one desiring to look for a specific concept or case, they would surely be able to find it quickly with these useful tools.
The text also takes on the work of explaining concepts in its stride and I enjoyed the use of sporting references to explain some of the more intangible concepts, such as jurisdictional and non-jurisdictional error (see p 10) – an apt example in the Australian context. The task of explaining administrative law concepts can be a difficult one, and I will surely be taking that example for use in the future (with all due credit, of course).
As someone who has practised exclusively in the space of statutory tribunals, I found the explanation and exploration of the development of domestic tribunals and judicial review thereof fascinating. Forbes sets out the facts of seminal cases succinctly to illustrate that any action taken against a domestic tribunal ‘decision’ need be a civil action, unless there is a statutory right of appeal. On statutory tribunals, Forbes provides a comprehensive review of the many underlying concepts which I found useful in refreshing my own practice.
Not only does Forbes illustrate the state of the law of tribunals, but also provides interesting and thoughtful commentary on the many tensions that practitioners and lawmakers experience, including: whether tribunals should imitate court procedures to accommodate modern administrative law; whether there is a right to representation before a tribunal; and striking a balance between expediency and due process.
While the text was published prior to the standing up of the new Administrative Review Tribunal, and its accompanying legislative regime, it still provides treatment of important administrative law concepts that will apply to federal decision-making going forward. Although, with any luck, we will see a 7th edition which treats the new regime with equal alacrity.
Justice in Tribunals is an invaluable resource for practitioners seeking to broaden or refresh their knowledge of the workings of all manner of tribunals in Australia.