A look at political and legal issues in 2025 in the new year.
As 2024 wraps up and 2025 begins, it is time to take a look at some of the legal issues facing Australia in the next 12 months, both in Parliament and in the courts, and what we will be covering in the new year.
This series has a long-standing relationship with the implied freedom of political communication, and 2025 will see a debate over the scope of the implied freedom, specifically its relationship with free speech.
The current characterisation of the implied freedom is an equal opportunity to participate in Australia’s democratic system. However, as explored in Common(wealth) Knowledge #108, early High Court cases on this issue did see some support for a more US-style ‘freedom of speech.’
As discussed by Parliamentary Reporter Aidan Edgecomb in his analysis of Faruqi v Hanson, Senator Hanson has argued that section 18C of the Racial Discrimination Act 1975 (Cth) limits her right to free speech, meaning the implied freedom. If she loses her appeal, she may introduce a bill to Parliament to amend that legislation.
At the same time, American right-wing commentator Candace Owens is challenging the government’s decision to deny her a visa. This argument is expected to be based on free speech as well.
Candace filed her case in the High Court’s original trial jurisdiction. Her case will probably be summarily dismissed, due to being a hopeless case, or remitted for trial before the Federal Court, which is the correct court for such a migration case.
Less likely, though still possible, is Parliament legislation or a court case that considers the use of Artificial Intelligence in politics. This may be objected to by a free speech/implied freedom argument over whether it promotes engagement in the democratic system.
AI is not the only aspect of the internet that will be a focus of political debate in 2025. The Cyber Security Act 2024 (Cth) comes into effect in 2025. This legislation focuses on minimum levels of cybersecurity for all businesses and requires them to report any ransomware payments.
The Department of Home Affairs is currently accepting public submissions on additional Rules that should be created under this Act, including what those minimum standards will look like.
At the same time, the Privacy and Other Legislation Amendment Act 2024 (Cth) has criminalised ‘doxxing’ and harassing online, and requires the government to create a Children’s Online Privacy Code to protect their right to privacy online.
That Code will be relevant to how the government decides to regulate how the social media ban for children under 16 years of age will be implemented, following the passage of the Online Safety Amendment (Social Media Minimum Age) Act 2024 (Cth).
These regulations haven’t actually been established yet, with the legislation not set to come into effect until the end of next year.
Meanwhile, a federal election will be held before May 2025. If neither major party can form a majority in either House of Parliament, then the crossbench may be able to leverage one of the major parties to reduce the limitations imposed by the legislation.
The trend of challenging the validity of parts of the Migration Act 1958 (Cth), started in 2023 by NZYQ v Minister for Immigration and continued in 2024 by YBFZ v Minister for Immigration and Pearson v Commonwealth, as discussed in Common(wealth) Knowledge #109, continues.
In July and August 2024, the High Court ordered that two cases, CZA19 v Commonwealth and DBD24 v Minister for Immigration, which were filed in the Federal Court, be removed from that court and be heard by the High Court instead. They are factually similar, so the High Court will consider them jointly.
Both individuals arrived in Australia and sought safe haven visas, which were denied. Both individuals were thus placed in immigration detention, with no ‘real prospect’ of deportation to their home countries.
Because these applications were denied by officers of the executive branch of government, they are known as ‘habeas corpus or writ of mandamus’ cases, based on ancient English law, and section 75(v) of the Australian Constitution gives the High Court original trial jurisdiction to hear those matters.
It's worth noting that the Federal Court also has original jurisdiction here, so the High Court generally prefers that visa application cases be heard before that court instead, to save court resources. The removal power is not often used for migration cases.
These cases are both complicated by the fact that the individuals were not granted safe haven visas, which are granted to individuals fleeing persecution, but international law and Australian legislation prevent deporting them back home, because of the risk of persecution.
Unlike NZYQ and the 2024 cases, these individuals did not commit any criminal offences, except unlawfully being in Australia when their visa applications were denied. In those cases, the visas were revoked because of prior criminal activities.
Unlawful residence is an offence under sections 189(1) and 196(1) of the Migration Act 1958 (Cth). It was created for the purpose of placing an individual in immigration detention if a person’s visa application was rejected, with the purpose of “making an unlawful non-citizen available for their potential removal,” to quote the plaintiffs’ submissions.
Finally, Commonwealth v Yunupingu (2023), an appeal from the Full Court of the Federal Court that seeks to grant residents of Australian territories constitutional rights and give native title property law protections, which was heard in August, has still not been decided. That will be done in 2025.
The ongoing Diet Federalism series will be continued in 2025, as GovCheck looks at the history of constitutional rights and self-government in those same territories, and why those rights haven’t been extended to the territories.