Common(wealth) Knowledge #84: Reflections and predictions - 2023 edition

Some of the most topical legal issues going into 2024.

At the end of 2022, I made several predictions about 2023 in Common(wealth) Knowledge #30 and #31. Now, at the end of 2023, it's time to reflect on those predictions and make some predictions about 2024.

The most obvious prediction about 2023 was the Voice, although when I made the prediction, polling data had indicated that the referendum would pass. Instead, it failed to gain a majority in any state.

However, another seemingly obvious prediction was that 2023 would bring stability to the High Court, without any judges retiring that year since 2019. Chief Justice Kiefel was expected to retire in January 2024 but took early retirement instead. In her place, Justice Gageler was elevated to be the new Chief Justice, while her seat on the bench went to Justice Beech-Jones.

My concern over a lack of judges with experience in state and territory courts has also been alleviated, with Justice Beech-Jones having 11 years’ experience on the New South Wales Supreme Court and Court of Appeal.

However, the High Court appears to be reinstating its focus on the separation of powers that was dominant in the 1990s, but which had been replaced by parliamentary supremacy, which was discussed in an episode of Between Parkes Place and Capital Hill.

This was led by Chief Justice Gageler and Justice Gordon, the two dissenters in Garlett v Western Australia [2022], an unpopular and controversial decision from last year, which I predicted would continue to be a prominent issue in 2023.

The three big migration cases of Benbrika v Minister for Home Affairs, Jones v Commonwealth, and NZYQ v Minister for Immigration are the best examples of this. Although not addressing Garlett directly, the High Court has laid the foundation for a challenge to that case.

Although Justice Steward dissented in Benbrika, and is likely to be an outspoken advocate of parliamentary supremacy, and Justice Edelman continues to prefer a different approach to these issues that has not been adopted by the rest of the High Court, there has not been much deviation by Chief Justice Gageler on Chief Justice Kiefel’s focus on joint judgments.

Since becoming Chief Justice, Gageler has not issued a single judgment on his own, instead issuing joint judgments with other members of the High Court, meaning they had the same reasoning and conclusion.

The migration judgments forced Parliament to act swiftly after the High Court shot down the executive branch of government’s power to revoke a convicted criminal’s citizenship after they had already been punished by the courts, which usurped the court’s exclusive power to punish a person, as well as detaining asylum seekers with no reasonable prospect of being deported.

Parliament’s new legislation, which places strict requirements on those individuals instead, and seeks to allow courts to revoke the citizenship of a person in certain circumstances, will come under fire in 2024, as it was rushed through in Parliament’s final sitting week for the year.

With the Northern Territory and Queensland elections coming up in 2024, youth crime will doubtlessly become a focal point of the election campaigns, after youth crime waves in both places.

The Northern Territory and Queensland governments will also face an additional challenge at their elections, with the NT Chief Minister and Queensland Premier elected at the previous respective elections having resigned from office.

The Australian Capital Territory’s Chief Minister, Andrew Barr, is the only remaining head of government who was in office when the Covid-19 pandemic struck Australia, and Labor’s position in the Territory is likely to face threats from the Greens, just as Queensland Labor will be challenged by the Greens.

The ACT election also means that 6 News’ Chief Anchor, Leonardo Puglisi, will be doing a lot of content on proportional representation.

As predicted last year, the implied freedom of political communication was tested several times this year, with anti-protest laws and political donation limits in New South Wales coming under fire. With further climate change protests and elections occurring in 2024, these implied freedom challenges may spread to other states and territories.

With Victorian voluntary assisted dying legislation being struck down by the Federal Court, just after New South Wales became the last state to legalise it, this will be another issue in 2024. The Federal Court invalidated it for violating federal legislation that criminalises discussing and enabling suicide over digital and mobile devices.

Teal independent Kate Chaney will introduce a federal bill to address this inconsistency, which will overlap with the cybersecurity and AI legislation expected to be adopted after the Attorney General’s Privacy Act Review Report encouraged further regulations.

Finally, the ACT is seeking to expand its voluntary assisted dying legislation, despite the Victorian laws being invalidated. This is part of the bigger push for Territory rights. At the same time, the High Court hears an appeal to constitutional rights to the Territories, which currently do not have access to the constitutional rights available in the States. This will be done in the context of applying constitutional property rights protections to native title.

Although, like always, there will also be many unpredicted issues, I have my fingers crossed that, for once, there won’t be another shakeup on the High Court.

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