In Australia, the prerogative of mercy or power of pardon is exercised as a last resort after all avenues of appeal have been exhausted. I contend that the prerogative of mercy retains an important role in recognising the role of mercy at the "rough edges" of the system for the administration of criminal justice in Australia, and in a system of responsible government that its exercise is consistent with the rule of law. The relatively uncontentious exercise of the prerogative or executive pardon in Australia demonstrates the robustness of our accountability mechanisms. By contrast, the exercise of the pardon power in the United States Constitution in the Presidential system of government in the United States is replete with instances of abuse of the power and there is not infrequently an overreach of executive power.
Section 501BA of the Migration Act 1958 (Cth) empowers the Minister to personally override a Tribunal decision revoking a mandatory visa cancellation, provided the visa-holder fails the character test and cancellation is in the "national interest". Natural justice is expressly excluded, enabling swift executive action. Though intended as an "exceptional" safeguard, the power is now used with increasing frequency, often against long-term residents who had successfully appealed to the AAT. Judicial review in the Federal Court has rarely curtailed its use, with intervention limited to cases of material factual error or illogical reasoning. While courts emphasise that fairness concerns do not displace Parliament's design, persistent reliance on 501BA risks eroding the transparency and authority of merits review. The article argues that without restraint or reform, the routine use of this override power undermines rule-of-law values and public confidence in migration decision-making.
Since the early 2020s casino operators have been found guilty of engaging in money laundering, organising illegal junkets, failing to pay taxes, falsifying documents, exploiting vulnerable gamblers and generally engaging in conduct that has been described as illegal, dishonest, unethical and exploitative. One legislative response was to increase the maximum penalties available to regulators to $100 million. This article examines the legislation relating to the nature of, and grounds for, disciplinary action, the disciplinary sanctions and the processes involved in the exercise of those powers. It argues that there are significant shortcomings in the various schemes, particularly the lack of clear criteria to be applied by regulators when exercising their sanctioning powers, the lack of requirements to give reasons for their decisions, the unavailability of rights of appeal and review of some important decisions and the powers given to Governors in Council and Ministers to impose significant pecuniary penalties.
The question of the right to peacefully protest is a perennial one, given renewed currency by the COVID pandemic era, continued world conflict, and strong community sentiment about a range of contentious issues. The right to so protest is considered fundamental in a democratic society. This article considers the extent to which the right to protest has been protected in fact in Australia. It reveals that, often, the right to protest has been curtailed in favour of other interests. Sometimes, content-based restrictions on speech have apparently been applied. In contrast, comparable jurisdictions have often upheld the right to peacefully protest in a more robust fashion. The article suggests constitutional difficulties with the existing schemes by which protest and assembly are regulated in Australia, based on the rule of law and implied freedom of political communication.
Claims involving governments and their agencies are often quite different to all others. There is a range of reasons for this, including: the unique and uniquely complex functions of government; the singular impact that the decisions of public agencies can have; and the vast resources that governments and their agencies can hold when compared to those who challenge their decisions. The powerful position of government is offset, to some extent, by special obligations that fall onto public sector litigants. One is the duty of government parties to act as a model litigant. Another is the duty of parties to tribunal cases to assist the tribunal. Most of the attention given to these duties have focused on the federal level, by reason of the detailed Model Litigant Rules approved by the Commonwealth Attorney-General under the Judiciary Act 1903 (Cth) and the longstanding duties of parties in federal tribunal proceedings to assist the relevant tribunal. Victoria has adopted a modified version of model litigant guidelines based on the federal model, but they have received far less judicial and academic analysis. The legislation governing the key Victorian merits review body (VCAT-the Victorian Civil and Administrative Tribunal) does not include a duty of parties to assist VCAT. This article examines how the incomplete application of two well-settled federal principles to VCAT operate and how they could be reformed. The article argues that changes to specific procedural duties should occur as part of a wider ranging review of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The article also considers how these issues may be affected by the absence in the VCAT Act of a provision that expressly states the objectives of VCAT.
