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Analysis and Comment (35)

In a 6:1 decision, the High Court upheld the validity of two offences created under Queensland’s anti-bikie measures. AAP/Dan Peled

High Court invites fresh challenge to Queensland’s bikie laws

Last Friday, the High Court handed down its decision in a constitutional challenge to Queensland’s controversial suite of anti-bikie laws. This decision is as interesting for what it does not decide as…
The Abbott government’s Emissions Reduction Fund could be vulnerable to a future constitutional challenge in the wake of recent High Court decisions. AAP/Lukas Coch

Explainer: is Direct Action constitutionally valid?

Late last week, the Senate passed the Abbott government’s controversial A$2.5 billion Emissions Reduction Fund, the centrepiece of its Direct Action Plan to combat climate change. Its passage has been…
NSW consorting laws mean a group of dog owners who regularly meet at Sydney’s Leichhardt Pioneers Memorial Park might want to run criminal record checks on anyone joining their social gathering. AAP/Britt Smith

Careful who you chat with: it could turn you into a criminal

Next time you strike up a conversation at your local coffee shop, have a chat in the pub after work, or have a natter with fellow dog lovers as you follow your pooch around the park, you may want to get…
Australia’s judiciary has emerged as a political and activist institution, frustrating the militarised strategies of the Abbott government in asylum policy. AAP/Lukas Coch

High Court asylum case pits the executive against the judiciary

The full bench of the High Court will hear the case of 157 Sri Lankan asylum seekers currently on an Australian customs vessel over two days, starting on August 5. But when the High Court issued an injunction…
The 153 intercepted asylum seekers are reportedly being detained at sea aboard the ACV Ocean Protector, pictured here in Hobart. Flickr/Grahame Bowland

Court to rule on intercepting and transferring asylum seekers at sea

Lawyers for 153 Sri Lankan asylum seekers on a boat intercepted by the Australian government applied for a full bench of the High Court to hear its case on August 5 at a directions hearing on Friday. Whereas…
In its asylum policy, Australia takes advantage of the fact that international law is not automatically absorbed into its domestic legal system. AAP/Lukas Coch

Australia’s global reputation at stake in High Court asylum case

The Australian government gave an undertaking to the High Court on Wednesday that it would not surrender or deliver the asylum seekers detained on an Australian customs vessel on the high seas to Sri Lankan…
In previous cases, the High Court has held that asylum seekers detained on Christmas Island have a right to procedural fairness. AAP/Scott Fisher

Preventing asylum seekers' return to harm through the High Court

Later today, the High Court is due to hear a challenge to the screening and transfer of a boatload of Sri Lankan asylum seekers back to Sri Lankan authorities. Under international law, return of persons…
The High Court has unanimously re-endorsed its decision in a successful 2012 challenge to the government funding the National Schools Chaplaincy Program. AAP/Lukas Coch

Commonwealth left scrambling by school chaplaincy decision

The High Court has again put the future of the federal government’s school chaplaincy program in jeopardy, confirming its 2012 decision that the Commonwealth’s spending programs must be supported by valid…
The High Court has given the Commonwealth two serious warnings that it needs to review its extensive spending program since 2009, but these have gone largely unheard. AAP/Lukas Coch

Commonwealth spending back in the High Court’s sights

This week, the High Court heard Toowoomba man Ron Williams’ second challenge to the constitutionality of the Commonwealth’s funding of the National School Chaplaincy and Student Welfare Program. While…
The high court has ruled that New South Wales must allow Norrie to legally identify as having a non-specific gender. AAP/Daniel Munoz

Why Norrie’s court victory is a leap forward for everyone

Have you ever asked yourself why institutions continue to demand that we identify ourselves as male or female on every form? What difference does gender make to my bank account, to the tax office, or to…
The first legal challenge to Queensland’s hardline anti-bikie laws is set to hit the High Court. But what are its chances of success? AAP/Dan Peled

Hells Angel takes on bikie laws in court, but what are his chances?

Hells Angel Stefan Kuczborski has launched a constitutional challenge to more than a dozen sections of the Newman government’s notorious anti-bikie laws in Queensland. These include the Vicious Lawless…
A judgment on whether voters in Western Australia will return to the polls to re-elect their senators is due on Monday. What’s the legal background to it all? AAP/Paul Miller

In whose interest? The High Court and the WA Senate vote

This week, a lone High Court judge faced a table of 13 barristers to begin resolving the Western Australian Senate election quandary. The hearing took two days and a judgment is likely sooner or later…
The High Court has ruled the ACT’s same-sex marriage law invalid, citing its inconsistency with the federal Marriage Act. AAP/Alan Porritt

ACT law delivers neither marriage nor equality: the High Court’s verdict

The ACT’s Marriage Equality (Same Sex Act) 2013 produced neither a marriage nor equality. Instead it produced inconsistency, leaving the law completely inoperative. Those who exchanged marriage vows last…
The High Court will this week begin deliberating on whether or not the ACT’s same-sex marriage bill is consistent with the Constitution. AAP/Alan Porritt

Same-sex marriage and the High Court: previewing the arguments

This week, the High Court will begin hearing the Commonwealth’s challenge to the ACT’s Marriage Equality (Same Sex) Act 2013. But don’t expect lofty rhetoric about equality; the case is really about the…
The High Court may be forced to decide on the constitutionality of Tasmania’s abortion protest law. Alex Guibord

Tasmania’s abortion protest law is probably constitutionally valid

Earlier this week, constitutional law academic Michael Stokes predicted the High Court of Australia would overturn new Tasmanian legislation banning anti-abortion lobbyists from protesting within 150 metres…
The binary categories of male and female don’t align with the reality that sex and gender may be fluid. Keoni Cabral

Beyond male and female: time for a non-specific sex category

Earlier this month the High Court indicated it was prepared to hear a legal case that tests the ability of intersex Australians to be legally recognised as being neither male or female. The High Court…
It’s set to be a big few months for the High Court of Australia. What are the key cases to watch? petelawley

The High Court – coming to a Centre Stage near you

In coming months, the High Court – the highest court in Australia and the final arbiter on the meaning of the Constitution – will decide several high-profile cases. These decisions, which may result in…
Queensland attorney-general Jarrod Bleijie has taken decisions about detaining sex offenders in prison after their sentences have been served into his own hands. shutterstock

Listen up, Queensland – courts are for justice, politicians are for politics

There is a good constitutional reason for not allowing politicians to make decisions which result in imprisonment. It’s called the separation of powers and is meant to ensure that politics does not intrude…
The mother (centre) of the four young girls at the centre of a custody dispute arrives at court hearing in Brisbane. AAP/Dan Peled

Child custody: a family law perspective

Last week’s Media Watch programme on the ABC discussed the role of the Australian media in the custody case of four Queensland children that has created headlines across the country over the past few months…
Tents at Nauru that await asylum seekers as their claims are processed. AAP/Department of Immigration and Citizenship

M47 and ASIO case may not prove a victory for refugees after all

The High Court’s decision in the M47 case is likely to be a pyrrhic victory for refugee rights. Last week the High Court ruled that the regulation that allowed the Commonwealth to deny a visa to a refugee…
The final pieces of the historical puzzle around the 1975 Whitlam dismissal are not as sensational as they first seem. Image courtesy of National Archives of Australia. NAA: A6180, 13/11/75/33

Mason’s role in the 1975 dismissal ‘unprecedented’? Hardly …

Much hyperbole has been generated by the recent revelations concerning Sir Anthony Mason’s involvement in the 1975 dismissal, but for the most part it shows ignorance of the past. Earlier this week, The…
Australia’s High Court has dismissed the plain tobacco packaging case brought against the government by tobacco companies. TRACEY NEARMY/AAP

Big Tobacco crashes at first legal hurdle on plain packaging

This morning Australia’s High Court dismissed the plain tobacco packaging case brought against the Australian government by the world’s largest tobacco companies. The companies had challenged the government’s…
Fortescue founder and current non-executive chairman, Andrew Forrest has been a prominent critic of the federal government’s mining tax. The company has finally launched a much anticipated High Court challenge to the tax. AAP

Fortescue launches High Court challenge to mining tax

Perth-based mining giant Fortescue Metals Group has launched a last-minute High Court action against the mining tax, planning to argue the legislation - due to start on July 1 - breaches the Australian…
The High Court landmark decision in the school chaplaincy case is an opportunity for reform. Flickr/petelawley

School chaplaincy case: a missed opportunity for secular education

The historic majority Australian High Court ruling that the National School Chaplaincy Program (NSCP) is “invalid” is a gift to the argument for secular public education. Secular statutes (for example…
Australia’s High Court has found in favour of Internet service provider iiNet in a high profile piracy case that is being closely watched around the world. AAP

iiNet’s Hollywood ending: what does its court victory mean for copyright law?

In what is being billed as iiNet versus Hollywood, the Australian internet service provider has come out an apparent winner after the High Court dismissed a copyright infringement case brought by industry…
Julia Gillard and Immigration Minister Chris Bowen after the High Court ruled the Malaysian Solution invalid. AAP

Onshore processing: what it means for asylum seekers

The Federal Government’s position on handling asylum seekers is in disarray. The High Court has ruled its Malaysia Solution invalid and the Coalition has indicated it will not support moves to amend the…
Protestors outside the High Court during a previous hearing in Malaysian Solution case. AAP

Malaysia Solution: High Court ruling explained

The Gillard government’s refugee policy is in disarray after the full bench of the High Court today made permanent injunctions preventing the removal of asylum seekers to Malaysia. The action was initially…
In Australia, forensic evidence is coming under increasing scrutiny. Andrea Hayward/AAP

The CSI effect: are jurors starstruck by forensic evidence?

FORENSICS AUSTRALIA – Jurors without technical training are frequently required to consider complex forensic evidence. It’s not just a matter of understanding the forensic evidence: in the case of “opposing…
Campaigners in Sydney protesting against the Malaysian Solution. AAP

High Court ruling: the end for the Malaysian Solution?

The High Court’s extension of an injunction preventing the deportation of asylum seekers under the so-called Malaysian Solution threatens to present the Gillard Government with a major political problem…

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