Civil Law (Books and Journals)
- Federal Law Review From Nbr. 1-1, March 1964 to Nbr. 49-1, March 2021
- Journal of Intellectual Disabilities and Offending Behaviour From Nbr. 4-1/2, January 2013 to Nbr. 11-2, February 2020 Emerald Group Publishing Limited, 2021
- Southampton Student Law Review From Nbr. 1-1, January 2011 to Nbr. 9-1, January 2019 University of Southampton, 2020
- SOAS Law Journal From Nbr. I-I, January 2014 to Nbr. VII-I, January 2020 SOAS University of London, 2020
- La decisión de acusar. Un estudio a la luz del sistema acusatorio inglés by: Dykinson, 2014
Public Servants and the Implied Freedom of Political Communication
The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at...
Moving Beyond the Common Law Objection to Structured Proportionality
This article examines the claim that the adoption of structured proportionality testing in Australian constitutional review is ill-suited to Australia’s common law tradition. That objection has been stated by some members of the High Court and scholars, though the precise basis of the objection has not been clearly articulated. This article clarifies and evaluates this objection, setting out a...
Contracts and the Implied Freedom of Political Communication
This article considers the phenomenon of contractually-imposed restraints on political communication. Such restraints often incidentally arise from broad limits on out-of-hours conduct imposed by employment contracts or from confidentiality or non-disparagement clauses in deeds of settlement. It is argued that the implied freedom of political communication has work to do in relation to at least...
Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni
Jim Allan contends in a recent issue of the Federal Law Review that the High Court’s implied rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional text and the historical intentions of its authors. Elisa Arcioni’s response accepts that constitutional doctrines should be grounded in the text and authorial intentions but argues that the implied rights cases
The Efficacy of Australia Adopting a Debarment Regime in Public Procurement
While transparent and efficient public sector procurement systems facilitate innumerable opportunities for stakeholders, the scale and scope of the global procurement market has rendered it increasingly vulnerable to corruption. The Organisation for Economic Co-operation and Development estimates that annually US$2 trillion of public funds is lost to corruption, yet governments have failed to...
The Reserve Powers in Times of Political Crisis: The Dutton/Turnbull Leadership Challenge and Royal Assent to the Medevac Bill and Brexit Bills
The period of 2018–19 threw up political crises in Australia and the United Kingdom that raised circumstances in which the reserve powers of the Queen or the Governor-General might have been exercised. This article discusses in depth the 2018 challenge to Prime Minister Turnbull’s leadership, including how the Governor-General should have responded if he had been asked to dissolve Parliament in...
Political Constitutionalism: Individual Responsibility and Collective Restraint
Australia’s Constitution has been shaped by a blend of legal and political constitutionalism; yet there is limited attention given to political mechanisms of control in Australia. With the recent developments in the United Kingdom and the turmoil of Brexit that shifted the balance between legal and political constitutionalism, it is timely to examine how political constitutionalism has evolved in
‘Maranga Ake Ai’ The Heroics of Constitutionalising Te Tiriti O Waitangi/The Treaty of Waitangi in Aotearoa New Zealand
In 1840, some of the sovereign nations of Māori signed te Tiriti o Waitangi (the Māori language version of the Treaty of Waitangi) with the British Crown. Hone Heke was the first Māori leader of the northern nation of Ngāpuhi to sign, but by 1844 he was leading a significant revolt against British colonialism in Aotearoa New Zealand by chopping down British flagpoles erected on his lands. While Mā
Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation
The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in...
A First Nations Voice: Institutionalising Political Listening
The Uluru Statement from the Heart offers an opportunity to reorder the Australian constitutional hierarchy as it relates to First Nations. The proposal for a First Nations Voice provides a tailored, structural response to the experiences of Aboriginal and Torres Strait Islander people under the Australian state. For the First Nations Voice to meet this potential, it will require more than...
Constitutional Resistance in Populist Times
The article departs from the discussion of constitutional mobilisation—the ‘process by which social actors employ constitutional norms and discourses to advocate for constitutional change’ 1 —to introduce the concept of constitutional resistance—the public invocation of constitutional norms and principles, in defence of a distinctive view of constitutionalism, in opposition to governing or reform
Constitutional Change Outside the Courts: Citizen Deliberation and Constitutional Narrative(s) in Ireland’s Abortion Referendum
This article considers how the use of referenda to enact constitutional change relates to the concept of a ‘constitution outside the courts’. It argues that the referendum is a challenge to this concept but that these challenges arise in a more complex manner than might first be assumed. First, a referendum occurs within a legal framework which calls into question the notion of the referendum as...
Constitutional Scholars as Constitutional Actors
This article explores the idea that constitutional scholars may be thought of as constitutional actors analogous to integrity institutions and examines the normative implications of conceiving of constitutional scholars in this way. One implication of such an analogy is to strengthen academic freedom and protect the integrity and independence of constitutional scholarship. Moreover, viewing...
The Constitutional Role of Electoral Management Bodies: The Case of the Australian Electoral Commission
Electoral management bodies are increasingly being recognised as ‘fourth branch’ institutions that have a role to play in safeguarding electoral democracy against government attempts to undermine the fairness of the electoral process. This article explores the extent to which the Australian Electoral Commission (‘AEC’) fulfils that constitutional function by facilitating and protecting electoral...
The Pervasive Constitution: The Constitution Outside of the Courts
The constitution pervades the governance practices of a state, far beyond its application and interpretation in the courts. This Special Issue draws together a field of scholarship that considers these extrajudicial dimensions of constitutional practice to reveal a very different constitution to the juridified version. It is a more complex, dynamic and pervasive vision of the constitution,...
The Australian Constitution as Symbol
According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres...
Three Decades of Tension: From the Codification of Migration Decision-Making to an Overarching Framework for Judicial Review
Over the last three decades, Australian administrative law decisions about who will be allowed to stay in Australia have led to more interaction and tension between the elected government (Parliament and Ministry) and the judiciary than any other subject matter. This interaction has been intensified by Parliament’s attempts to amend the Migration Act 1958 (Cth) to codify judicial review and the...
Keep Your (Horse) Hair On? Experimental Evidence on the Effect of Exposure to Legitimising Symbols on Diffuse Support for the High Court
Positivity theory posits that the courts rely on powerful legitimising symbols—such as elaborate judicial attire, honorific forms of address and imposing courtroom design—to ensure legitimacy in the eyes of the public in the absence of an electoral mandate. The argument is that such legitimising symbols evoke images of learning and pageantry and create the presumption that the process by which...
- Withdrawal – Knighthoods and the Order of Australia
- Withdrawn: Knighthoods and the Order of Australia
Allegiance, Foreign Citizenship and the Constitutional Right to Stand for Parliament
In 2017, in Re Canavan, the High Court of Australia found five sitting Members of the Commonwealth Parliament to be citizens of a ‘foreign power’ and thus ineligible, under s 44(i) of the Constitution, to hold their seats. In 2018, in Re Gallagher, the High Court found that a Senator who had attempted unsuccessfully to renounce her British citizenship prior to her Senate candidature was similarly
Categories of the ‘Art of the Impossible’: Achieving Sustainable Uniformity in Harmonised Legislation in the Australian Federation
National uniform legislation links the federal distribution of powers achieved more than 119 years ago with the challenges and opportunities faced by Australia in an interconnected world. Over this span of time, developing national uniform legislation has been described as the ‘art of the impossible’. The main objective of this article is to critically examine the database of national uniform...
- Corrigendum to Calibrated Proportionality
Taking Process-Based Theory Seriously: Could ‘Discrete and Insular Minorities’ Be Protected Under the Australian Constitution?
The High Court is committed to protecting the substantive rights necessary for the effective functioning of the constitutionally entrenched system of representative and responsible government. This is consistent with a ‘representation-reinforcing’ approach to constitutional review as advocated by John Hart Ely in the United States, in which judicial intervention is limited to protecting the...
- Children and young people’s mental health
- The Well-Connected Community – A networking approach to community development (3rd Edition) by Alison Gilchrist
Open Justice, Efficient Justice and the Rule of Law: The Increasing Invisibility of Special Leave to Appeal Applications in the High Court of Australia
This article examines the application of the rule of law to special leave to appeal applications (‘SLAs’) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the Court. As an exercise of judicial power, SLA determinations have significant impact upon the...
- Some Reflections on ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text’
- Rejoinder to Raban