
    <h2>Frustration in Early Legal Practice</h2>

    <p>For many newly admitted lawyers, the transition from law school to professional practice is frustratingly constrained. Strict supervised practice requirements often treat competent law graduates as incapable of contributing meaningfully without constant oversight. This paternalistic model — justified as client protection — can feel oppressive, stifling, and unresponsive to the initiative and skills of early-career lawyers.</p>

    <h2>The Case for Restricted Pro Bono Work</h2>

    <p>A compelling alternative is restricted pro bono practice. Under this model, newly admitted lawyers could take on limited cases with clearly defined boundaries, working independently but within a framework that safeguards clients. This system rewards initiative, provides real-world experience, and allows lawyers to exercise professional judgment without being unnecessarily “babysat” by the market. Crucially, it recognises the hard-earned mobility and competence of law graduates.</p>

    <h2>Benefits for Lawyers and the Community</h2>

    <p>Restricted pro bono practice enhances access to justice by leveraging untapped legal talent for community benefit. It cultivates professional confidence and responsibility, teaching lawyers to manage real cases, communicate effectively with clients, and navigate ethical obligations.</p>

    <h2>Addressing Concerns</h2>

    <p>Critics may argue that inexperienced lawyers pose a risk to clients. Yet carefully designed safeguards — such as case limitations, mentoring hotlines, or review of key filings — can mitigate risks while still allowing autonomy. The goal is not to eliminate supervision, but to replace a culture of patronising oversight with one of empowered, accountable contribution.</p>

    <h2>Conclusion</h2>

    <p>By embracing restricted pro bono practice, legal systems can strike a balance: honouring the competence of newly admitted lawyers, encouraging initiative, and improving access to justice. Completing law school and passing admission requirements signifies readiness to contribute meaningfully — not merely to follow instructions under an unresponsive supervisory framework.</p>
  

Rethinking Supervised Practice


    <h2>Billion Dollar Deal</h2>

    <p>Australia’s <strong>“Billion Dollar Deal”</strong> with Nauru to resettle members of the NZYQ cohort is reported to cost up to <strong>A$2.5 billion over 30 years</strong>, including an upfront payment of about <strong>A$408 million</strong> and ongoing annual contributions. Under this arrangement, Nauru will resettle members of the NZYQ cohort, which the Australian Government emphasises includes individuals whose visas were cancelled due to criminal or character issues and who are therefore no longer permitted to remain in Australia — even though many are recognised refugees.</p>

    <h2>Chain Refoulment</h2>

    <p>As a signatory to the <em>1951 Refugee Convention</em>, Australia is legally required under <strong>Article 33</strong> not to return refugees to countries where their life or freedom would be at risk. International law also protects refugees from being sent to a third country if that could put them at risk of persecution or serious harm — a situation known as <strong>“chain refoulement”</strong>. While Australia’s <em>Migration Act</em> includes protections against direct refoulement, it does not explicitly cover indirect or chain refoulement. Nonetheless, under international law, Australia could still be held responsible for chain refoulement.</p>

    <p>Human rights advocates have raised this concern. According to a Nauruan language translation obtained by the Asylum Seeker Resource Centre, Nauru’s president has publicly said that some members of the NZYQ cohort could <strong>“go home,”</strong> meaning they might be returned to their countries of origin, potentially breaching Australia’s international obligations.</p>

    <h2>Bikie Gangs Contracts</h2>

    <p>Concerns about Australia’s Nauru resettlement arrangement have been raised following allegations of misuse of public funds and criminal infiltration — including the involvement of the Finks bikie gang in security contracts. These claims highlight serious questions about accountability and oversight in the offshore processing and Nauru resettlement system.</p>

    <h2>Procedural Fairness</h2>

    <h3>Procedural fairness in relation to the NZYQ cohort</h3>
    <p>Following the government’s arrangement with Nauru to resettle members of the NZYQ cohort, several cohort members challenged the decision, arguing that the transfer had been arranged without affording them procedural fairness. In all the initial challenges, the Federal Court held that the Nauru arrangement was an exercise of the Commonwealth’s executive power in foreign affairs rather than a decision directed at individuals and therefore did not trigger any obligation to provide procedural fairness.</p>

    <p>To prevent further legal challenges based on procedural fairness, the government passed amendments in <strong>September 2025</strong> that removed any requirement to provide procedural fairness when arranging to send non-citizens to a third country.</p>

    <h3>The common law presumption of procedural fairness</h3>
    <p>At common law, there is a strong presumption that procedural fairness applies to the exercise of public power. As the High Court explained in <em>Kioa v West</em> (1985) 159 CLR 550, a decision that affects a person’s rights, interests, or legitimate expectations will ordinarily attract an obligation to afford procedural fairness, unless, as explained in <em>Annetts v McCann</em> (1990) 170 CLR 596, that obligation is excluded by clear statutory language. Silence is not sufficient to displace the presumption; exclusion must occur by <em>“plain words of necessary intendment.”</em></p>

    <p>It is against this doctrinal background that the September 2025 amendments must be understood. While the Federal Court rejected the NZYQ cohort’s initial challenges on the basis that the Nauru arrangement was an exercise of executive power in foreign affairs rather than a decision directed at individuals, the common law presumption of procedural fairness remained a potential basis for future litigation. The 2025 amendments therefore operate not merely to clarify the law, but to carve out the presumption itself by expressly excluding any obligation to provide procedural fairness when arranging the transfer of non-citizens to a third country.</p>

    <h3>Can procedural fairness be excluded absolutely?</h3>
    <p>While procedural fairness is not expressly entrenched in the Constitution, the assumption that it may be excluded in absolute terms warrants closer scrutiny. Parliamentary supremacy in Australia is not unfettered; the Commonwealth’s legislative power is conferred and delimited by the Constitution (see <em>Australian Communist Party v Commonwealth</em> (1951) 83 CLR 1), which operates within an inherited common law framework (see <em>Engineers Case; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd</em> (1920) 28 CLR 129). The Engineers Case confirms that the Constitution is interpreted as part of an existing legal system, not in isolation from it.</p>

    <p>Against that background, there may be an argument that procedural fairness, as a foundational incident of lawful decision-making (<em>Kioa v West</em>), cannot be wholly extinguished where executive action directly affects individuals and is rendered effectively immune from judicial evaluation. Even if Parliament may limit or modify the content of procedural fairness, its complete exclusion raises questions about the constitutional boundaries of legislative power and the rule-of-law assumptions on which the Australian legal system rests.</p>
  

Billion Dollar Deportation Deal


    <p>The case that was overturned by <em>NZYQ</em> was <em>Al-Kateb v Godwin</em> [2004] HCA 37, in which the High Court held that the mandatory detention of a stateless person under the <em>Migration Act 1958</em> (Cth) was lawful — even if it meant detention on an indefinite basis. Justice Kirby, in dissent, argued that indefinite detention raised serious human rights concerns and urged the Court to interpret the law consistently with fundamental rights principles (<em>NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor</em> [2023] HCA 37).</p>

    <p>Although in dissent, Justice Kirby’s judgment is widely regarded as seminal for its articulation of <strong>human rights principles</strong> in Australian law and for highlighting the growing influence of international law on Australian jurisprudence. However, based solely on his dissent in <em>Al-Kateb</em>, one might assume that <em>NZYQ</em> was guided primarily by human rights considerations.</p>

    <p>In reality, the decisive factor was <strong>constitutional principle</strong> — specifically, the <strong>separation of powers</strong>, a fundamental tenet of Australia’s constitutional law. The separation of powers is, by necessary implication, derived from Chapters 1, 2, and 3 of the Australian Constitution — which establish the Parliament, the Executive, and the Courts. In <em>NZYQ</em>, the High Court’s focus on this principle underscores that, while human rights considerations are important, the structural allocation of powers within the Constitution remains paramount in determining the legality of governmental action.</p>
  

Tim Cullin

Rethinking Supervised Practice

Billion Dollar Deportation Deal

NZYQ: A Case of Human Rights?