As I have written before on this blog, a frustrating trend has developed in Australian administrative law in which courts and litigants fail to distinguish between judicial review for 'unreasonableness' in the exercise of a discretionary power and judicial review for 'irrationality' in the making of a finding of fact. The recent judgment of the … Continue reading Irrationality and unreasonableness are not the same thing: Chief Commissioner of Police v IHF
If someone were to ask me to nominate the most frequently abused statement of principle in Australian legal history, I would refer them to paragraphs 24 and 25 of the judgment of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs. In those paragraphs, their Honours stated that: To fail to … Continue reading Clearly articulated arguments, established facts, and constructive failure to exercise jurisdiction: Day v SAS Trustee Corporation
On 14 October 2020, the High Court handed down judgment in ABT17 v Minister for Immigration and Border Protection. While the result was unanimous – and, at least in my view, clearly correct – the case produced four judgments, embodying two distinct strands of reasoning (one contained in the joint judgment of Kiefel CJ, Bell, … Continue reading Should we just acknowledge that ‘demeanour’ is meaningless? ABT17 v Minister for Immigration and Border Protection
In the Anglo-Australian system of law, it is axiomatic that a judicial or administrative decision must ordinarily be made by a neutral decision maker. That is, a decision must be made by someone who is not, and who does not appear to be, biased against any party whose interests are liable to be affected by … Continue reading What’s the difference between apprehended bias and just being rude? Recent judgments from the Supreme Court of Victoria and the Family Court
A few weeks ago now – time flies when you're binge watching The Wire – a Full Court of the Supreme Court of South Australia handed down judgment in Chattaway v Minister for Health and Wellbeing. While the judgment does not establish any new principle, it is interesting for two reasons. First, it adds to a … Continue reading Subjective and objective jurisdictional facts in habeas corpus proceedings: Chattaway v Minister for Health and Wellbeing
As this meme – posted by the Kenyan-American actor/tangerine-skinned space pirate Lupita Nyongo'o – illustrates, Africa is a vast continent that comprises 54 countries. Within those 54 countries, there are approximately 1.3 billion people, who speak somewhere in the vicinity of two thousand different languages. Two of Africa's 54 distinct nations are the Republic of the Sudan and the Republic of South Sudan. While … Continue reading I’m not a geography whizz, but Sudan and South Sudan are definitely two different countries: DQM18 v Minister for Home Affairs
A few days ago, the Victorian Court of Appeal handed down judgment in Hazell-Wright v 32 Domain Pty Ltd. The Court refused leave to appeal on the grounds that the one genuinely arguable issue raised by the applicant's application for leave to appeal — whether the trial judge had erred by refusing to grant the applicant … Continue reading Some interesting dicta from the Victorian Court of Appeal on ‘Harman’ obligations in family law proceedings
About two weeks ago (or six months - who can tell anymore?), the High Court handed down judgment in The Commonwealth v Helicopter Resources Pty Ltd. What is unusual about the judgment is that by the time it was handed down (indeed, by the time the case was argued in the High Court), it had … Continue reading It’s like a cow’s opinion – it just doesn’t matter. It’s moo.
About two weeks (or seven binge-watched seasons of 30 Rock, or an amount of time spent playing Assassin's Creed that I'd rather not calculate and am not particularly proud of) ago, a Full Court of the Federal Court handed down judgment in BFH16 v Minister for Home Affairs, holding (by a 2-1 majority) that the … Continue reading The ever-expanding boundaries of the irrationality ground of judicial review (quarantine length post)
It is axiomatic that an administrative decision maker must generally 'consider' the case put before it by a person whose interests are liable to be affected by its decision. As I noted in a previous post, this obligation can be considered to arise from the rules of procedural fairness, from the obligation to take into … Continue reading What does it mean for an administrative decision maker to ‘consider’ the case put before it?
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