Federal Law Review

Publisher:: Sage Publications, Inc.
Publication date:: 2021-09-06

ISBN:: 0067-205X

Issue Number

No. 52-4, December 2024

Latest documents

A Constitution of Values? Principles and Values in the Commonwealth Constitution
Recent Australian public law scholarship has demonstrated an increasing interest in the theme of constitutional values. In the current paper, I seek to clarify the terms of the debate by defending a distinction between (i) constitutional principles, understood as relatively flexible legal norms which rest on text, structure and history and (ii) extra-legal values. My argument is framed initially through a critical discussion of Rosalind Dixon’s proposal for a ‘functionalist’ approach to constitutional interpretation, which ascribes a central place to values in judicial reasoning. The functionalist position, I contend, lacks a sufficiently clear distinction between, on the one hand, constitutional principles as legal norms and, on the other, extra-legal values of political morality. As a consequence, the functionalist appeal to ‘constitutional values’ tends to shift between a relatively modest supplement to purposive approaches to judicial interpretation and a more ambitious proposal for judges to promote ‘normatively attractive’ values. These claims are elaborated and refined through a comparative analysis of German constitutional jurisprudence and a recent example of an appeal to values by the High Court.
Let Alone to Listen: The Impact of Northern Territory Liquor Laws on Aboriginal Justice Outcomes
This article tracks the development of liquor laws in the Northern Territory, considering their impacts on Aboriginal justice outcomes and possible areas for reform. Noting the putative trade-off between health and justice outcomes, it examines the Northern Territory National Emergency Response Act 2007 (Cth), the Stronger Futures in the Northern Territory Act 2012 (Cth) and the 2022–23 Liquor Act 2019 (NT) amendments. Under the most recent Liquor Act amendments, the sale, possession and consumption of alcohol remain restricted in prescribed areas, which must determine the future of their liquor laws by 28 February 2027. This article proposes that greater investment is required to support Aboriginal leadership throughout this decision-making process. Indeed, a central proposition of this article is that the failure to adequately consult Aboriginal communities has been a shared feature of all three laws, and a fundamental barrier to improving Aboriginal justice. Reflecting on the interaction between Aboriginal and non-Aboriginal legal systems, this article identifies issues in the current policies that risk replicating the shortcomings of previous laws, thereby failing to empower Aboriginal leadership or improve Aboriginal justice services.
The Regulation of Paid Parental Leave in Australia: Delivering Gendered Patterns of Care
Key changes to the Paid Parental Leave Act 2010 (Cth) (‘PPL Act’), which offers minimum wage payments to parents on parental leave, took effect in July 2023. These changes sought to improve the gender equal utilisation of parental leave. This article assesses these changes to that end. The article also explores the regulation of employer-funded parental leave policies, which has been under-researched to date, drawing upon recent Workplace Gender Equality Agency data and interviews with human resource professionals. The data reveals that employer-funded parental leave policies often provide higher levels of income replacement than the PPL Act but mirror many of the PPL Act’s features that discourage gender equal parenting. These findings highlight the need for further reform in the regulation of paid parental leave to increase take up amongst men. Such reform will require flexible parental leave policies with non-transferrable and generous entitlements for all parents with high levels of income replacement.
What’s Your Damage? Assessing the Harms of Sexual Harassment From the Perspective of the Victim and the Accused
This article begins with a simple question: why are the damages awarded to victims of sexual harassment so much lower than damages awarded for those defamed by false allegations of sexual harassment? This article undertakes a comparative analysis of the underlying rationales for awarding damages in the doctrines of sexual harassment and defamation, tracking the historical reasons why sexual harassment damages have traditionally been so low compared to other doctrines. Then, it directly analyses two cases which awarded some of the highest damages in their respective doctrines: Rush v Nationwide News Pty Ltd and Hughes v Hill. This analysis reveals how the ongoing effect that traditional factors inhibiting sexual harassment damages, such as gender stereotyping and the requirement to medicalise damages, results in ongoing discrepancies in the damages awarded between both doctrines. This article suggests a simple solution: applying similar rationales for assessing damages in defamation to sexual harassment decisions.
Ensuring Equitable Payment Options: A Legal Perspective on Banning ‘No Cash’ Policies in Australia
This article examines the legal case for banning ‘no cash’ policies at retailers in Australia, with a focus on fostering inclusivity for unbanked individuals and empowering consumers. The analysis explores three potential options for implementing such a prohibition: leveraging anti-discrimination laws, utilizing consumer protection laws or enacting new legislation. From a legal standpoint, the article argues that retailers should be mandated to accept cash when consumers seek to purchase essential goods and services. Drawing upon relevant legal frameworks, the article highlights the importance of protecting the rights of unbanked individuals and ensuring consumer choice. It explores the potential impacts on financial inclusion and consumer empowerment while considering the risks of financial crime. By delving into these considerations, this article aims to contribute to the ongoing discourse surrounding ‘no cash’ policies, offering insights and recommendations for policymakers and legal practitioners alike in their pursuit of a fair and inclusive society.
Remembering Australian Constitutional Democracy
For many years, historical accounts of Australian Federation ignored the distinctive ideological origins of the Australian Constitution. From the mid 1980s until the 2000s, however, a generation of historians remembered how the Australian drafters built a distinctive constitutional democracy that combined trust in parliament with a direct constitutional role for a plural ‘people’: the people of Australia and the people of the states. Drawing on Chartist and American ideas of popular sovereignty, this system of popular political constitutionalism textually guarantees that ‘the people’ can ‘directly’ choose both houses of parliament, break deadlocks between these houses and make constitutional law. The definition of ‘the people’ in this distinctive form of constitutional democracy was, however, racially exclusive. In particular, First Australians were excluded from the plural people of Australia. This intellectual history of the Australian Constitution, however, has had remarkably little impact on constitutional interpretation and discourse. This paper will begin the process of examining those implications. First, it will show how this history provides important contextual support and direction to the implied limitations on parliamentary power that stem from the constitution’s guarantee of representative democracy in sections 7 and 24 of the Constitution. Second, it will demonstrate how it aids in better understanding Australia’s unique constitutional system. To date, this system has remedied the racist roots of the original constitutional definition of the people largely through legislative reform. The constitutional recognition of First Australians is a critical step in acknowledging that First Australians are a distinct part of the plural Australian people. In the aftermath of the failure of the First Nations Voice to Parliament proposal, meaningful constitutional recognition for First Australians must address their structural exclusion from the plural Australian people.
Active Citizens and an Active State: Uncovering the ‘Positive’ Underpinnings of the Australian Constitution
The Australian Constitution was drafted, and the institutions of national government were established, during a period in which the atomism of laissez-faire liberalism was being rejected. Instead, progressive liberals of the era were searching for ways to encourage collective action and social ties, believing that this would, in turn, enhance personal wellbeing. This article contends that a clearer appreciation of the influence of the ‘social’ turn in liberalism upon Australia’s constitutional and institutional development might contribute to a fuller understanding of Australia’s distinctive constitutional and public law traditions.
Responsive Constitutionalism in Australia
Responsive constitutionalism is a theory of constitutionalism that starts from the idea that democracy involves two overlapping commitments — to a relatively thin ‘minimum core’ set of norms and institutions and thicker, more contestable set of rights and deliberative commitments. It then proceeds to affirm a commitment both to legal and political constitutionalism. This article explores the relevance of this theory for Australian constitutionalism and suggests that it in fact has strong resonance with the Australian constitutional tradition. First, the capital ‘C’ Constitution gives strong legal protection to the ‘minimum core’ of democracy in ss 7, 24 and the High Court’s decisions on the implied freedom of political communication and access to the franchise. Second, the small ‘c’ constitution adopts norms that help protect the democratic minimum core and advance a responsive approach to thicker democratic commitments to rights. Third, there are important connections between the idea of responsive constitutionalism and limits on the scope legal constitutionalism and judicial review in Australia. Yet, there are also ways in which a responsive approach points to potential reforms of the Australian constitutional model — to include more robust rights-based constitutional protections, albeit in ways that are premised on a notion of shared legal and political authority and enforcement, and therefore involve a ‘weak-form’ national rights charter or extended principle of legality.
Federalising Socialism Without Doctrine
The Australian Constitution is only partly ‘liberal’ (securing political and economic liberties); another part is ‘socialist without doctrine’ (empowering governments to own and operate vast public capital, while providing social insurance in a market economy). That mixture is common in modern advanced economies but was anomalous in the Anglophone constitutional tradition in 1901. Legislative power over ‘old age and invalid pensions’, ‘railway construction’ and ‘conciliation and arbitration for the prevention and settlement of industrial disputes’ was an accepted part of the incipient Federal scheme but repugnant to Anglophone constitutional orthodoxy of the 19th century. The integration of ‘colonial socialism’ into the Constitution created one of the longest-standing puzzles in Australian jurisprudence, the Surplus Revenue Case of 1908, and laid the foundations for federal dominance of the Australian economy. Understanding the enduring impact of colonial socialism in Australian constitutionalism sheds light on how Australia’s distinctive political economy grew within a ‘Washminster’ system of government. It also provides principled guidance for future policy challenges that may require expansion of state involvement in the economy.
Foreword: Expanding Our Constitutional Imagination