Federal Law Review

Publisher:
Sage Publications, Inc.
Publication date:
2021-09-06
ISBN:
0067-205X

Latest documents

  • Applying a Human Rights Lens to Poverty and Economic Inequality: The Experience of the South African Human Rights Commission

    The Constitution of South Africa, 1996, is committed to redressing poverty and inequality. This is evident in its inclusion of a range of justiciable socio-economic rights along with a strong substantive right to equality and non-discrimination. The South African Human Rights Commission is a state institution established by the Constitution to support constitutional democracy. It has wide-ranging powers to investigate, monitor and protect human rights, including an express constitutional mandate in relation to socio-economic rights. This article examines how it has sought to apply its constitutional and legislative mandates to various manifestations of poverty and economic inequality in South Africa. It focuses on three broad areas of the Commission’s work with a view to identifying its achievements as well as some of the key challenges it has faced. Based on this analysis, the article concludes by reflecting on the broader implications of the experience of the Commission for fourth branch institutions, specifically national human rights institutions, that apply a human rights lens to poverty and economic inequality.

  • Lessons from Anti-Poverty Action in Ireland: Flexibility, Failure and the Pitfalls of a ‘Fourth Branch’ Model

    This article reviews the experience of Ireland’s Combat Poverty Agency and asks what lessons it may have for fourth branch scholarship. The lesson of the Agency is, in part, one about the pitfalls for novel institutions operating within a traditional tripartite model of constitutional government. The article also suggests, however, that the Combat Poverty Agency’s history may point to the positive potential for the design and operational strategies of non-traditional bodies charged with the promotion of specific social or economic goals. In so doing some reservations about both the specific implications and overall utility of framing these bodies in ‘fourth branch’ terms are also raised. These include concerns regarding the distinctiveness and (relatedly) authority of some conceptions of a ‘fourth branch’. In particular, however, the article queries whether the elevation of independent agencies to ‘branch’ status is always beneficial; and whether, in fact, the location of anti-poverty agencies at a sub-constitutional level may, under certain conditions at least, offer advantages in terms of flexibility and practical problem-solving power.

  • Commissioning Economic Equality? Lessons from Scotland

    The Scottish Poverty and Inequality Commission (hereafter ‘the Commission’) is a relatively new fourth branch institution with responsibility for addressing both poverty and inequality in Scotland. Nonetheless, it has made important, if modest and incremental, inroads in achieving these objectives, by encouraging the collection and use by government of relevant data in policy-formation; and the expansion and acceleration in the roll-out of important substantive policies focused on alleviating child poverty. The question this raises is what underpins this institutional success. The article draws attention to three key factors: the Commission’s distinctive combination of independence and a collaborative approach to policymaking, supported by a ‘triangular’ relationship between the government, Commission and civil society; its expertise and perceived legitimacy; and the unique policy context presented by the COVID-19 pandemic. These factors, it suggests, also offer useful lessons for constitutional and institutional designers elsewhere — about both the promise and contingency and four branch solutions to problems of economic exclusion and disadvantage.

  • Promoting Innovation or Exacerbating Inequality? Laboratory Federalism and Australian Age Discrimination Law

    According to laboratory federalism, federal systems can promote governmental innovation and experimentation, while containing the risks of innovation to only one jurisdiction. However, it is unclear whether these benefits are realised in practice and whether states are actually effective ‘laboratories’. This article evaluates the extent to which laboratory federalism is occurring in practice, focusing on a case study of age discrimination law in Australia. Drawing on related ideas of democratic experimentalism; legal doctrinal analysis of age discrimination law in the Australian states and territories, and at the federal level; and qualitative expert interviews with 66 Australian respondents, I map the potential and limits of laboratory federalism in advancing age equality. I argue that, in this particular context, the benefits of experimentation may be outweighed by the resulting difficulties of enforcing age discrimination law, exacerbating inequality in practice. The federal structure has led to a confused and confusing patchwork of legal regulation. There is therefore a need for stronger federal structures to facilitate mutual learning and better realise the benefits of laboratory federalism.

  • The Australian Constitution as a Framework for Securing Economic Justice

    We contend that, contrary to mainstream understanding, the Australian Constitution provides a meaningful framework for ensuring economic justice, by virtue of its conferral upon the Commonwealth Parliament of particular legislative powers, namely the income justice and taxation powers. We draw on Rawlsian political theory, together with constitutional theory including recent work on constitutional directive principles, to explain how a constitution, and specifically the Australian Constitution, can impose requirements upon the political order independently of its operation as a legal instrument whose legal meaning is interpreted and applied by the courts. We use this novel account of the relationship between political and legal constitutionalism to establish the consequences, for each branch of government, of this constitutional requirement to secure economic justice. This includes a defence, from the perspective of political as well as legal constitutionalism, of the constitutionality of laws imposing retrospective taxation.

  • Democratic Constitutions, Poverty and Economic Inequality: Redress Through the Fourth Branch Institutions?
  • A Typology of Australian Animal Sentience Recognition Provisions — Enacted and Proposed

    Australia appears to be following the trend in mainly Western countries of recognising animal sentience in the law. This article sets out a typology of animal sentience recognition provisions that have been enacted, or have been proposed, in Australian jurisdictions to date. These include provisions or proposed provisions located in statutory objects, statutory principles, statutory definitions and a treaty. Depending on legislative context, these provisions, and proposed provisions (if enacted), may have different legal consequences. The trend towards legally recognising animal sentience may also signal further positive legal reforms for animals in the future.

  • Regulating the Rorts: The Legal Governance of Grants Programs in Australia

    Numerous recent scandals have surfaced relating to the Australian government allegedly engaging in ‘pork barrelling’, that is, the partisan channelling of grants funding to government electorates, instead of merit-based allocation. Yet the probity of the use of public money is crucial towards preserving public trust in Australian democratic institutions. This article will critically analyse the legal accountability mechanisms for grants funding through public finance legislation, ‘soft law’ such as grants, guidelines and ministerial standards, and the availability of legal redress. It will also examine political accountability mechanisms, including the operation of parliamentary committees, the Auditor-General and the Ombudsman. The author argues that although political regulation provides transparency in the government’s use of public funds, it remains ineffective to combat the government’s deeply entrenched incentives to allocate grants in a partisan manner. As such, it is contended that stronger legal accountability in terms of enforceable rules and regulations is required to reform grants regulation towards improving the probity and accountability of the use of public funding.

  • White Hat, Black Hat, Slouch Hat: Could Australia’s Military Cyber Capability be Deployed Under Commonwealth Call-Out Powers?

    In April 2016, then Prime Minister Malcolm Turnbull confirmed the existence of Australia’s offensive cyber capability. Said to constitute both a coordinating Information Warfare Division inside the Australian Army as well as dedicated cyberoffensive capability inside the Australian Signals Directorate, the unveiling of this capability was a watershed in Australian defence policy. Yet whilst the literature has briefly examined whether Australia’s cyberoffensive capability is congruous with international law, no such analysis under Australia’s domestic laws has been undertaken. This paper seeks to partially address this gap in the research by focusing on whether the Australian Defence Force could legally launch cyberattacks against domestic targets under Commonwealth call-out powers.

  • The Australia’s Foreign Relations Act and Australia’s Relationship with International Law

    This article examines the consequences of the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) (‘Foreign Relations Act’) for international law. It argues that the arrangements entered into by state, territory and local governments to which the Foreign Relations Act applies can be relevant to international law in three ways. First, they may relate indirectly to Australia’s international legal obligations. Second, they may be a means by which Australian subnational governments claim a role for themselves in governance on global issues. Third, as an exercise of diplomacy, they influence the relations Australia maintains with other nations and the way in which it participates in the international system. As the states and territories in particular become more assertive, including on international issues such as climate change, giving the Commonwealth complete control over such arrangements may impact Australia’s relationship with international law.

Featured documents

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