News: AUSPUBLAW on Queesland v Congoo

Opinions on High welcomes to the blogosphere:

AUSPUBLAW posts contributions from leading public law experts – including academics and practitioners – across Australia. The Blog seeks to promote greater engagement with public law issues and a national platform for informed debate about current issues in public law.

Because of the central role of Australia’s High Court in matters of public law, the subject-matter of the Australian Public Law blog, hosted by UNSW’s Gilbert and Tobin Centre for Public Law, overlaps with this blog, especially if the concept of public law is interpreted broadly.

An example is today’s AUSPUBLAW post on the High Court’s recent decision in Queensland v Congoo [2015] HCA 17by G&T Centre Director Sean Brennan and ANU Associate Lecturer Lauren Butterly . As noted here, Congoo was a rare and troubling instance of a 3-3 split in Australia’s top court. Brennan and Butterly explore the native title dispute and issues at the heart of the split, concluding:

Ultimately, the Court in Congoo appears divided between two views: either extinguishment is essentially a legal conclusion of last resort or native title is to be radically differentiated from other rights when it comes to extinguishment analysis. Justice Hayne, whose judgment was a strong voice against equivalent treatment in Congoo, retired from the Court earlier this month. The views of the new High Court appointees Nettle and Gordon JJ, will play a decisive role in the future direction of native title.

At last week’s Great Australian Dissents Workshop, Brennan nominated an earlier native title judgment by North J (part of the majority in the Federal Court narrowly upheld by the High Court in Congoo) in Western Australia v Ward [2000] FCA 191, as a great (albeit unrequited) dissent. As it happens, a different North J judgment was reviewed by the High Court in yesterday’s twin immigration rulings, WZAPN and WZARV, this time with the Court unanimously overruling North J’s view that any detention counts as a ‘serious harm’ for the purposes of refugee law.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.