find the latest legal job
Legal Inhouse / Lawyer / Company Secretary
Category: Other | Location: Brisbane QLD 4000
· Fantastic Company · Potential to be Part Time / Flexible Work Pattern
View details
Part Time Risk & Compliance Officer
Category: Other | Location: Brisbane QLD 4000
· Brisbane City · Flexible Part Time Hours
View details
Infrastructure Lawyer/SA
Category: Construction Law | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Global elite law firm · Dedicated Infrastructure team
View details
In-House Legal Counsel (Mid to Senior)| Regulated Markets (Energy and Gas)
Category: Generalists - In House | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Full PD on Request · Exciting High Impact Role
View details
Family Lawyer
Category: Family Law | Location: Eastern Suburbs Melbourne VIC
· Boutique Firm · Great Reputation
View details
Constitutional law increasingly international, says Solicitor-General

Constitutional law increasingly international, says Solicitor-General

globe

Developments over the past year represent the growing influence of foreign elements in constitutional law, according to the Solicitor-General of Australia.

Justin Gleeson SC gave the address at this year’s Constitutional Law Conference dinner on 12 February at Parliament House in Sydney.

In his speech, Mr Gleeson said cases concerning the legality of state actions outside Australia demonstrate that “constitutional law is being drawn into an international framework”.

Citing the recent High Court case on offshore detention of asylum seekers on Nauru (Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors), Mr Gleeson said Australia was heading in a similar direction to the US.

“M68 illustrates the point made by Justice Stephen Breyer in his 2015 work The Court and the World: American Law and the New Global Realities,” said Mr Gleeson.

“Breyer said, of course, that the docket of the US is increasingly filled with what he called foreign cases, cases calling on the court to consider activities of government carried offshore, such as Guantanamo Bay, foreign commerce, foreign threats to national security and so on.

“Not all such cases are constitutional, but all of them have these foreign elements to them. And I think if one observes the High Court's docket, here one can see something similar occurring. M68 has clear foreign elements attached to it. [It asks] very important questions about the power of the executive to act offshore.”

Mr Gleeson said another important development in jurisprudence was international challenges of Australian law outside the High Court, such as the plain-packaging dispute between Phillip Morris and the federal government.

There are three separate investor-state dispute proceedings occurring in various arbitral bodies in relation to this legislation.

“And those three proceedings are, if you boil them down, all cases about expropriation or unjust acquisition,” said Mr Gleeson.

“And so what I think is incredibly significant about them […] is that the decision of our High Court on a constitutional challenge to a Commonwealth, state or territory law is no longer necessarily the final word on the validity of legislation passed in Australia.”

Furthermore, decisions by the Commonwealth executive whether to enter business investment treaties can end up seeing Australian legislative and executive measures challenged in international forums, he continued.

“And these cases can, in theory, see Australian legislation struck down by international panel or if not a substantial award of damages.”

Mr Gleeson emphasised that, as Solicitor-General, he was not advocating for or against such treaties.

“The point is simply that our constitutional law in many cases is simply one tool in the kitbag of the well-resourced global litigant and, from the perspective of governments considering passing measures, they now need to assess risk against not just what the High Court might do but what an international tribunal might do if called upon,” he said.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Constitutional law increasingly international, says Solicitor-General
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Nov 22 2017
Reduced investment protections will make robust commercial arbitration mechanisms all the more critical for investors
Promoted by Maxwell Chambers. This article discusses the current trend away from investor protect...
Tsunami
Nov 22 2017
‘Document tsunami’ driving lawyers to upskill in TAR
A prominent Victorian judge has highlighted the growing need for lawyers to expand their knowledge o...
Defamation expert appointed to lead Victorian Bar
Nov 22 2017
Defamation expert appointed to lead Victorian Bar
The Victorian Bar has named Dr Matt Collins QC as its new president, with an additional eight member...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...