The 2025 Constitutional Law Conference takes place at the Gilbert + Tobin Centre of Public Law, UNSW, on 7 February. This year promises discussions of important developments in the High Court, Federal Court and state courts and an overview of the key public law debates in 2024. Experts will present papers on the constitutional separation of powers, migration, native title, and the role of government lawyers in Australian public law, among other topics.
Professor Andrew Lynch is Dean at UNSW Law & Justice. Between 2008-2013, Andrew was the Director of the Gilbert + Tobin Centre of Public Law at UNSW and he continues to work on research housed within the Centre’s Judiciary Project.
He tells LSJ, “The conference has remained true to a core purpose of facilitating reflection and discussion on the constitutional law cases of the preceding year. The day continues to open with papers on the High Court’s decisions and then an accompanying consideration of constitutional cases in other jurisdictions. Then there are dedicated papers on certain cases from experts in practice or academia. Frequently, the afternoon session surveys a broader topic, often on institutional change or law reform in the public law space. A particularly memorable discussion of that kind was held between the Australian newspaper’s Janet Albrechtsen and then Federal Court Justice Robert French, on the reliably controversial topic of judicial activism.”
Professor Lynch adds that the focus on constitutional law from both Commonwealth and state and territory perspectives is important, and not commonly examined to equal degree.
“State and territory constitutional law issues are of a different order and seldom attract the attention that matters involving interpretation of the Commonwealth Constitution receive. The latter obviously have a national effect, including often on the enjoyment by the States and Territories of their own constitutional powers. Further, the Commonwealth Constitution is a rigid document, with change overwhelmingly driven by the shifts – typically incremental but sometimes dramatic – in judicial interpretation. The G+T annual conference provides an ideal vehicle for constitutional lawyers to pay keen attention to these shifts and interpretations.”
Dr Gabrielle Appleby is a Professor at the Law Faculty of University of New South Wales. Her areas of expertise including the role, powers and accountability of the Executive; parliamentary law and practice; the role of government lawyers; the integrity of the judicial branch and First Nations constitutional recognition. She is the Director of The Judiciary Project at the Gilbert + Tobin Centre of Public Law, the constitutional consultant to the Clerk of the Australian House of Representatives and a member of the Indigenous Law Centre.
This year, Dr Appleby will be presenting on the role of government lawyers in 2024. She says the conference is an opportunity to present, converse, and discover fresh ideas and perspectives.
She tells LSJ, “It’s important to do the behind-the-scenes work – to read new scholarship, new cases and be on top of legislative developments. And to think about those developments – and develop my thinking and positions on them, which I often do through my writing, and teaching. That process of thinking is clarified and extended and deepened when I present at conferences and engage formally such as in panel discussions, as well as all the informal conversations that happen at conferences when academics and practitioners in public law come together. These conversations will also alert me to new developments and scholarship that informs my thinking and writing. So it’s a wonderful, iterative process.”
Dr Appleby says the role of government lawyers has been increasingly in the spotlight over the last few years, sometimes suggestive of new trends, or event casting greater attention upon existing facets of the role. Her 2016 book on the “Role of the Solicitor-General” fleshed out many of these concerns thoroughly.
She says, “When I presented the 2019 keynote address to the Gilbert + Tobin Centre constitutional law conference, I reflected on how the High Court’s decisions in 2018 had important inter-institutional consequences – that is, they affect how the government and the parliament go about their roles. At the intersection of these institutional relationships is the government lawyer – translating the High Court’s decisions for government when it is developing policy and legislation. We have seen this playing out in a number of areas in the last couple of years. For instance, one of those important changes that I highlighted in 2018 has been the Court’s development of its proportionality jurisprudence in the implied freedom of political communication arena. This now requires various forms of facts and evidence to justify measures that otherwise infringe of the freedom. In the last couple of years, we have seen the consequence of this jurisprudence across the country in areas such as electoral donations and expenditure regulation reform. In South Australia, the government convened an expert panel prior to finalising its reforms, informed, no doubt, by legal advice on what the High Court will now expect to justify such measures.”
Dr Appleby also points to the overturning of the High Court’s decision in Al-Kateb in the case of NZYQ, which resulted in a government response that was also overturned in YBFZ.
“These developments would have kept the Commonwealth’s lawyers very busy” she says. “You have the situation where there is a High Court challenge to a well-established case and acceptance of indefinite immigration detention, but significant changes on the Court since that case, as well as development in jurisprudence. So, the government lawyer would need to take these into account in advising government in defending that legislation in the Court. How the Commonwealth then responded to the new position in NZYQ given the policy and political imperatives, working out what the new boundaries are in terms of permissible restrictions of liberty of aliens, would also have involved government lawyers, again doing this translating work.”
Dr Appleby has observed a curiosity from her students that reflects the most “dynamic” parts of constitutional law. Their enthusiasm gives her optimism for the future, and the role of emerging public law professionals.
“I find that students tend to be more interested in those areas of constitutional law that have been more dynamic in recent years – that is, cases involving democratic rights and the implied freedom of political communication, and the separation of powers and implications for liberty. I think this I because these topics feel more tangible for students and their lives – while some of the older federalism jurisprudence can feel more abstract and less relevant. These are also cases that involve social and political history within their memory, and so that’s more interesting for them. I also run an activity in constitutional law at UNSW called the critical judgments project, in which I ask students to think of how judges might resolve some of the most controversial cases we study informed by critical theories, such as feminist, queer, critical race and intersectionality. The purpose of this exercise is to help students reflect on the values, interests and voices that the current law reflects, and how it might be reformed into the future. My students’ engagement with and response to this exercise always leaves me hopeful for the future.”
Professor Lynch says, “The annual constitutional law conference was established by the Foundation Director of the G+T Centre, Professor George Williams AO, shortly after the Centre’s establishment. The first conference was held in 2002 at the State Library of NSW. In a very early sign of the quality of speakers for which the conference has become renowned, the very first keynote paper looking back at the decisions of the High Court in the preceding year was given by Stephen Gageler, later appointed Solicitor-General of the Commonwealth and now Chief Justice of Australia.”
Professor Lynch adds, “Other speakers from the bar and the bench have subsequently been appointed to the High Court – including both Gager CJ’s predecessors, Robert French AC and Susan Kiefel AC.”
The COVID-19 pandemic moved the conference fully online and, says Professor Lynch, “now it reflects the flexibility of the 2020s through a very successful hybrid format”. The in-person event is held in the offices of the Centre’s sponsor, Gilbert + Tobin.
“The audience has always been drawn from all around the country – and sometimes further afield – and this remains the case, but not always with travel involved for many. The hybrid mode has increased the reach of the conference, especially enabling greater student interest from within NSW and interstate,” Lynch says.
Lynch says many law students have always been drawn to constitutional law as a part of their degree, “but commentators have tended to agree that the more dynamic constitutional jurisprudence of the High Court since the 1990s has overcome the subject’s traditional reputation as arcane.”
“The significance of constitutional law and values to our community, questions as to the resilience and efficacy of constitutional safeguards and democratic institutions, and waning trust in the exercise of public power all offer fertile ground in which a passion for the subject can take root. The Centre’s conference is just one of its many activities through which we hope to engage and inform the future generations of constitutional law practitioners and academics.”