Federal Law Review
- Sage Publications, Inc.
- Publication date:
- Nbr. 49-4, December 2021
- Nbr. 49-3, September 2021
- Nbr. 49-2, June 2021
- Nbr. 49-1, March 2021
- Nbr. 48-4, December 2020
- Nbr. 48-3, September 2020
- Nbr. 48-2, June 2020
- Nbr. 48-1, March 2020
- Nbr. 47-4, December 2019
- Nbr. 47-3, September 2019
- Nbr. 47-2, June 2019
- Nbr. 47-1, March 2019
- Nbr. 46-4, December 2018
- Nbr. 46-3, September 2018
- Nbr. 46-2, June 2018
- Nbr. 46-1, March 2018
- Nbr. 45-4, December 2017
- Nbr. 45-3, September 2017
- Nbr. 45-2, June 2017
- Nbr. 45-1, March 2017
- Arcioni, Crowe and Allan on Constitutional Interpretation: A Worder of Crowes
- Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin
Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.
- The Constitution’s Guarantee of Legal Accountability for Jurisdictions
This article argues that the Constitution’s entrenched provision for judicial review may be understood as a guarantee of legal accountability for a specific class of governmental powers, namely, powers whose exercise has a legal effect on rights and obligations (‘jurisdictions’). The paper’s argument is prompted by the observations in Kaldas v Barbour (2017) 350 ALR 292;  NSWCA 275 on the class of administrative actions that are amenable to entrenched judicial review of State powers. The article shows that the application of this understanding to entrenched review of Commonwealth powers has significant explanatory value. It casts new light on two puzzling features of entrenched review of Commonwealth powers: The discrimen between executive and judicial power that underpins a separation of powers rationale for entrenched review of Commonwealth executive action and the demarcation between s 75(iii) and s 75(v) injunctions against Commonwealth officers. Viewing entrenched review as a guarantee of legal accountability for jurisdictions prompts new insights into its constitutional rationale and its specific contribution to government under law.
- Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality
This article examines the High Court of Australia’s treatment of the concept of dignity as both a value animating the implied freedom of political communication and as a legitimate reason to limit the exercise of that freedom. It does so through the lens of Clubb v Edwards, Preston v Avery, where the Court found that laws establishing safe access zones around abortion clinics were compatible with the implied freedom. The use of dignity as a prism through which to view the interests at stake in both abortion and speech cases is a familiar feature of developments abroad, and the Court has laid the foundations for recognition of dignity as one of the axiological bases of the implied freedom in a manner that generally emphasises individual autonomy over other conceptions of dignity that might be described as operating as a constraint on behaviour to protect other interests. Yet, while the Court has used dignity as the common measure with which to commensurate competing claims, it has yet to convincingly address concerns regarding incommensurability that attend the balancing stage of proportionality review, not to mention the potential objection that its reliance on dignity is not properly grounded in the text and structure of the Constitution. In light of these issues, the role of dignity ought to be tethered to its central role in facilitating political participation so as to more clearly link the concept to the text and structure of the Constitution, and to identify what is at stake when women’s ability to access reproductive health care is impaired or denied.
- Why Does the Common Law Conform to the Constitution?
The High Court has often said that the common law must conform to the Constitution. The High Court has not completely explained why this is so. This requirement is not explicitly mentioned anywhere in the Constitution itself. A number of scholars have suggested possible answers. One is that the Constitution is the supreme law and binding on everyone. Another suggestion has been that the common law must conform because the Constitution constrains ‘state action’: something more than just an exercise of constitutionally conferred power. This latter explanation appears to deviate from the High Court's exposition of the common law's relationship with the Constitution in Lange v Australian Broadcasting Commission. This article suggests that the Constitution has a broader application to the common law, in that it constrains all uses of judicial power, not just those that are considered to be ‘state action’. It contends that it is implicit in s 71 of the Constitution that the power to develop the common law yields to constitutional imperatives. This theory is more descriptively consistent with the High Court's practice and observations about the relationship between the common law and the Constitution.
- Twin Peaks 2.0: Avoiding Influence Over an Australian Financial Regulator Assessment Authority
Globally, financial system regulators are susceptible to deliberate and inadvertent influence by the industry that they oversee and, hence, are also susceptible to acting to benefit the industry rather than the public interest – a phenomenon known as ‘regulatory capture’. Australia, arguably, has an optimal model of financial system regulation (a ‘Twin Peaks’ model) comprising separate regulators for prudential soundness on the one hand, and market conduct and consumer protection on the other. However, the current design of the Twin Peaks model has not been sufficient to prevent and address prolonged and systemic misconduct that culminated in a public Royal Commission of Inquiry into misconduct in the industry. Subsequent to the Royal Commission and other inquiries, the Department of Treasury has proposed legislation to establish an Assessment Authority to assess the effectiveness of the Twin Peaks regulators. The proposal includes enquiries by an Assessment Authority into the regulators’ independence, so as to identify instances of, and thereby mitigate, their capture. As with all financial system regulators, the Assessment Authority itself may be susceptible to regulatory capture, either by the Twin Peaks regulators, or by the financial industry. Thus, this paper poses the question: how can the new Assessment Authority be optimally constituted by legislation, and operated, to effectively oversee the effectiveness of the regulators, but itself remain insulated from the influence of the regulators and industry? We analyse the primary sources of influence over financial system regulators that the Assessment Authority will likely face and recommend ways in which a robust design of the Assessment Authority can mitigate those sources of influence. In doing so, we adopt an inter-disciplinary approach, drawing upon not only regulatory theory but also for the first time in relation to this question, organisational psychology. Our findings address gaps in the proposed legislation currently before Federal Parliament and propose methods by which those gaps may be filled, in order to ensure that this important reform to Australia’s financial regulatory regime has the greatest chance of success.
- Love in the High Court: Implications for Indigenous Constitutional Recognition
This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions addressing two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation like those faced by Love and Thoms.
- Legal Exclusions: Émigré Lawyers, Admissions to Legal Practice and the Cultural Transformation of the Australian Legal Profession
Legal histories of Australia have largely overlooked the exclusion of European émigré lawyers from legal practice in Australia. This article recovers part of this forgotten history by tracing the drawn-out legal admission bids of two Jewish émigré lawyers in the mid-20th century: German-born Rudolf Kahn and Austrian-born Edward Korten. In examining their legal lives and doctrinal legacies, this article demonstrates the changing role and requirement of British subjecthood in the historical constitution and slow cultural transformation of the Australian legal profession. This article suggests that contemporary efforts to promoting cultural diversity in the Australian legal profession are enriched by paying attention to this long and difficult history of legal exclusions.
- Can I Leave the House? A Coded Analysis of the Interpretation of the Reasonable Excuse Provision by NSW Police During the COVID-19 Lockdown
This article looks at the recent Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, which was in force in New South Wales from 31 March 2020 to 14 May 2020. The order allowed police to fine people who left their houses without a ‘reasonable excuse’. This article considers the confusion around the order in the community and upper levels of the government. Publicly available information about the fines issued by the police is analysed and it is argued that an overly narrow application of the order by police meant that its application was not reasonably proportionate to the authorising legislation, the Public Health Act 2010 (NSW). It is concluded that if future lockdowns are required, care will need to be taken to ensure that Ministerial orders are crafted in line with the legislation and that police officers clearly understand their operation.
- From Stepping-Stones to Throwing Stones: Officers’ Liability for Corporate Compliance Failures after Cassimatis
Australian corporate law allows for significant civil penalties to be imposed by a court on negligent corporate officers, including directors. For more than a decade, Australian Securities and Investments Commission used civil prosecutions for negligence exclusively in situations where an officer is alleged to have exposed their corporation to foreseeable risk of harm that would flow from a contravention by the corporation of a regulatory or disclosure obligation. This enforcement strategy—known as ‘stepping-stones’—has been strongly criticised, including by Rares J in his 2020 dissenting opinion in the Cassimatis appeal. This article explains how stepping-stones works as an enforcement strategy in the context of corporate compliance failures, explores the various criticisms of it, and argues for reform. It proposes a legislative alternative that rebalances individual officer liability, to reflect contemporary governance practices and encourage better management and oversight of non-financial risk in corporations.
- Carbon Pricing Options for a Post-Kyoto Response to Climate Change in Australia
- Federalism and Gender Equality
Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on...
- Arcioni, Crowe and Allan on Constitutional Interpretation: A Worder of Crowes
- The Big Picture: Imagining the Constitution
In Australia, a technocratic minimalist approach to constitutional interpretation leaves little space for what has recently been described as a ‘democratic’ or ‘social’ ‘constitutional imaginary’. The ‘big picture’ of what a constitution is, and why it matters, is systematically reduced to a ‘strict...
- Theories and Practices of Federalism in Deeply Divided Societies
- Assessing Kenya's Cooperative Model of Devolution: A Situation-Specific Analysis
Kenya's form of quasi-federalism termed devolution was introduced under the Constitution of Kenya (2010) (‘2010 Constitution’). This governance system establishes 47 county governments which are constitutionally independent sub-national units with direct election of county level leaders. Given the...
- ‘A Measure of Autonomy’: Federalism as Protection for Malaysia's Indigenous Peoples
This article is a case study of federalism in Malaysia as applied to the East Malaysian states of Sabah and Sarawak, which joined the federation in 1963. It is only in the case of these two states, in the context of Malaysia, that federalism is designed to deal with ethnic issues, the majority in...
- Whistleblowing, National Security and the Constitutional Freedom of Political Communication
Whistleblowers promote the values of responsible government and the rule of law by drawing attention to criminal or other forms of wrongdoing in publicly accountable organisations. This article explores the relationship between whistleblowing, national security and the implied freedom of political...
- Fiscal Decentralisation in a Divided State: Bougainville in Papua New Guinea
Is fiscal decentralisation in a polity divided by languages, cultures, tribes, and geography a means to nation-building or a route to secession? I consider the case of Bougainville in Papua New Guinea to provide nuanced information on the above question. This case study reveals that fiscal...
- Judicial Power and Consociational Federation: The Bosnian Example
An influential theory, sometimes called the ‘fragmentation hypothesis’, proposes that divided political systems will tend to empower courts because they make it more difficult for political elites to coordinate court-curbing retaliation. Another influential perspective proposes that federal systems ...