Federal Law Review

Sage Publications, Inc.
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  • 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 meet this standard. Arcioni is correct, but more can usefully be said about the precise interpretive basis for the implied rights reasoning. A faithful attempt to give effect to the framers’ intentions, as I have shown in detail elsewhere, must sometimes ask not only what they had in mind when the text was written but also what those intentions entail in a contemporary setting. This involves placing both the constitutional text and authorial intentions within a broader context of legal and social institutions. The High Court’s implied rights jurisprudence, viewed in this light, is a legitimate attempt to identify and apply the Constitution’s intended meaning.

  • 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 some categories of such restraints. The various objections to that view are examined and it is argued those objections are not compelling. The article analyses the question of how the implied freedom would operate in respect of contracts that impermissibly burden freedom of political communication, and suggests that this may be achieved by developing the common law of contract to accomodate a doctrine similar to the doctrine governing unreasonable restraints of trade.

  • 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 common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.

  • 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 number of distinct concerns which emerge from the reasoning of the minority justices. Ultimately, the article argues that the objection has been too starkly cast and that Australia’s common law tradition does not present an insurmountable obstacle to the introduction of proportionality testing in constitutional review.

  • 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 respond with robust measures to deter such practice. Through comparing the debarment frameworks and policy goals across five jurisdictions, this article argues that Australia should consider adopting a discretionary debarment regime. By excluding bidders who have engaged in ‘corporate integrity offences’ from procurement contracts, debarment policies offer a potentially important mechanism in the fight against corruption. Debarment would not only protect the government from current threats, but it may also deter potential wrongdoers, encourage contractors to rehabilitate themselves, incapacitate actual offenders and facilitate development of a culture of compliance through the competitive advantage gains enjoyed by law-abiding firms.

  • 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 the midst of the challenge or if he had been advised not to appoint Dutton as Prime Minister due to concerns about his eligibility to sit in Parliament. The second part deals with the question of whether royal assent should be refused, upon ministerial advice, to a bill, such as the Medevac Bill in Australia and two Brexit delay bills in the United Kingdom, which were passed against the wishes of the relevant government, including when procedural or non-justiciable constitutional requirements were breached in the passage of the bills. It concludes that the best way of resolving such issues is to resort to the application of fundamental constitutional principles.

  • 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 action by the authorities. Constitutional mobilisation and resistance are theorized on an interdisciplinary and conceptual basis, suggesting that the study of the critical role of societal actors in constitutional politics and in ‘constituent conflicts’ remains so far underexplored. The analysis of constitutional resistance is particularly relevant in the contexts of authoritarian societies or democratic societies that face increasing populist and authoritarian challenges. The article first briefly explores various scholarly approaches that provide considerable contributions for the development of a political sociology of constitutional mobilisation. It subsequently discusses constitutional mobilisation and focuses in particular on constitutional resistance, a so far undiscussed dimension of constitutional mobilisation, exemplifying the latter by briefly exploring the cases of Italy and Poland.

  • 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 constitutional scholars as constitutional actors also sharpens our understanding of the ethical obligations of constitutional scholarship: of ‘academic self-awareness’ and of ‘decisional’ and ‘institutional’ independence. This duty of independence may be equally important to the public standing, expert status and integrity of the constitutional law discipline in this highly politicised populist moment.

  • 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 an extra-legal interruption to the constitutional order. Secondly, this suggests that the referendum is more likely to be the end point of a process of constitutional change rather than the vehicle or impetus for it. This means that the relevant developments may occur elsewhere in society. Using Ireland as a case study, the article argues that there is a constitution outside the courts which depends to a significant extent on the mediating influence of multiple actors—including the courts.

  • 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 Australia. This article argues that Australian political constitutionalism is distinct from the United Kingdom as it is shaped not by internal conflict about the nature of the constitution but rather by the significant evolutionary development of fundamental institutions. In particular, it is argued that there are three critical junctures for political constitutionalism in Australia: the foundations of the Commonwealth, the formation of disciplined political parties and the rise of oversight bodies. It is contended that Australia may be reaching a new critical juncture due to the fragmentation of responsible government from privatisation and outsourcing and the rise of ministerial advisers.

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