Pub Date : 2022-10-28DOI: 10.1177/0067205x221126556
Adriana Orifici, Dominique Allen
This article integrates doctrinal and empirical legal research methods to evaluate manifestations of discrimination experienced by pregnant workers and develops proposals to strengthen labour law to better support working women. The article commences by mapping the framework of rights and protections currently applicable to pregnant women under the Fair Work Act 2009 (Cth) (‘FW Act’). It then analyses court decisions made under parts 3-1 and 3-2 of the FW Act that are relevant to pregnancy, which builds on the limited scholarship in this area. This is augmented by analysing the findings from a pilot study into the experiences of a group of pregnant workers in Victoria, which addresses an ongoing deficiency in the literature of the qualitative examination of workplace pregnancy discrimination. Scrutiny of the doctrinal and empirical data reveals the common manifestations and patterns of conduct that pregnant women experience at work. The article then considers how the rights and protections in the FW Act could be strengthened to better support pregnant women who experience unlawful conduct at work. It is argued that there are three critical gaps in the FW Act, which are leaving pregnant women vulnerable to detrimental treatment. Legislative reform proposals are formulated to address these gaps, of which the most pressing is to add pregnancy to s 65(1A) of the FW Act so that it comprises a ground on which employees can make requests for flexible working arrangements.
{"title":"Expecting More: Rethinking the Rights and Protections Available to Pregnant Workers under the Fair Work Act 2009 (Cth)","authors":"Adriana Orifici, Dominique Allen","doi":"10.1177/0067205x221126556","DOIUrl":"https://doi.org/10.1177/0067205x221126556","url":null,"abstract":"This article integrates doctrinal and empirical legal research methods to evaluate manifestations of discrimination experienced by pregnant workers and develops proposals to strengthen labour law to better support working women. The article commences by mapping the framework of rights and protections currently applicable to pregnant women under the Fair Work Act 2009 (Cth) (‘FW Act’). It then analyses court decisions made under parts 3-1 and 3-2 of the FW Act that are relevant to pregnancy, which builds on the limited scholarship in this area. This is augmented by analysing the findings from a pilot study into the experiences of a group of pregnant workers in Victoria, which addresses an ongoing deficiency in the literature of the qualitative examination of workplace pregnancy discrimination. Scrutiny of the doctrinal and empirical data reveals the common manifestations and patterns of conduct that pregnant women experience at work. The article then considers how the rights and protections in the FW Act could be strengthened to better support pregnant women who experience unlawful conduct at work. It is argued that there are three critical gaps in the FW Act, which are leaving pregnant women vulnerable to detrimental treatment. Legislative reform proposals are formulated to address these gaps, of which the most pressing is to add pregnancy to s 65(1A) of the FW Act so that it comprises a ground on which employees can make requests for flexible working arrangements.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"504 - 526"},"PeriodicalIF":0.0,"publicationDate":"2022-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"65417138","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-27DOI: 10.1177/0067205x221126554
Miriam Amanze, D. Cahill, Ceri Evans
International organisations emphasise how Governments around the world must use the public procurement process to aid a global drive to eliminate human trafficking in their supply chains. In this significant and original contribution, the authors examine a leading procurement model, the Australian Commonwealth Procurement Rules (CPR), for the purpose of examining whether the CPR model satisfies the necessary standards of Legal Certainty and Effectiveness for addressing the risk of trafficking occurring in public sector supply chains. The research generates new insights for countries seeking to tackle trafficking via public procurement systems and identifies pitfalls for countries to avoid if seeking to emulate the Australia CPR model, making appropriate reference to US and UK models where appropriate. The authors demonstrate how key elements of the CPR model fail to provide for the required degree of Legal Certainty and Effectiveness to tackle trafficking. System failure is demonstrated by analysis of the CPR, showing either how key CPR provisions fail to satisfy these 2 key tests, or because there is a complete absence of appropriate provisions to comprehensively deal with the risk of trafficking in public sector supply chains. This article should serve not only as a guide to countries yet to address human rights considerations in their public procurement supply chains, but also as a blueprint for countries around the world seeking to re-evaluate whether existingprovisions in their domestic procurement frameworks are fit to tackle the global scourge of trafficking in public supply chains.
{"title":"Tackling Human Trafficking in Governments Supply Chains: Legal Certainty and Effectiveness Issues Under the Australian Commonwealth Procurement Rules Model","authors":"Miriam Amanze, D. Cahill, Ceri Evans","doi":"10.1177/0067205x221126554","DOIUrl":"https://doi.org/10.1177/0067205x221126554","url":null,"abstract":"International organisations emphasise how Governments around the world must use the public procurement process to aid a global drive to eliminate human trafficking in their supply chains. In this significant and original contribution, the authors examine a leading procurement model, the Australian Commonwealth Procurement Rules (CPR), for the purpose of examining whether the CPR model satisfies the necessary standards of Legal Certainty and Effectiveness for addressing the risk of trafficking occurring in public sector supply chains. The research generates new insights for countries seeking to tackle trafficking via public procurement systems and identifies pitfalls for countries to avoid if seeking to emulate the Australia CPR model, making appropriate reference to US and UK models where appropriate. The authors demonstrate how key elements of the CPR model fail to provide for the required degree of Legal Certainty and Effectiveness to tackle trafficking. System failure is demonstrated by analysis of the CPR, showing either how key CPR provisions fail to satisfy these 2 key tests, or because there is a complete absence of appropriate provisions to comprehensively deal with the risk of trafficking in public sector supply chains. This article should serve not only as a guide to countries yet to address human rights considerations in their public procurement supply chains, but also as a blueprint for countries around the world seeking to re-evaluate whether existingprovisions in their domestic procurement frameworks are fit to tackle the global scourge of trafficking in public supply chains.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"479 - 503"},"PeriodicalIF":0.0,"publicationDate":"2022-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45050862","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-27DOI: 10.1177/0067205X221126558
Doron Goldbarsht, Hannah Harris
This article demonstrates the pressing need to rethink the doctrine of separation of powers in Australia in light of the increasing influence of intergovernmental organisations such as the Financial Action Task Force (‘FATF’), which are shaping domestic lawmaking. The article documents the influence of the FATF on Australia’s anti-money laundering and counter-terrorism financing framework, showing how FATF ‘recommendations’ are in fact decrees that Australia and other nation states integrate into their domestic legal systems — even when the legislative branch of government does not support such actions. The article suggests that Australia should consider implementing a fourth arm of government — an integrity arm — to strengthen the nation against the influence of intergovernmental organisations.
{"title":"Check the Balance: Is the Doctrine of Separation of Powers Sufficient in the Context of Intergovernmental Organisations? A Case Study of Australia’s AML/CTF Financing Framework","authors":"Doron Goldbarsht, Hannah Harris","doi":"10.1177/0067205X221126558","DOIUrl":"https://doi.org/10.1177/0067205X221126558","url":null,"abstract":"This article demonstrates the pressing need to rethink the doctrine of separation of powers in Australia in light of the increasing influence of intergovernmental organisations such as the Financial Action Task Force (‘FATF’), which are shaping domestic lawmaking. The article documents the influence of the FATF on Australia’s anti-money laundering and counter-terrorism financing framework, showing how FATF ‘recommendations’ are in fact decrees that Australia and other nation states integrate into their domestic legal systems — even when the legislative branch of government does not support such actions. The article suggests that Australia should consider implementing a fourth arm of government — an integrity arm — to strengthen the nation against the influence of intergovernmental organisations.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"527 - 557"},"PeriodicalIF":0.0,"publicationDate":"2022-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44169213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-27DOI: 10.1177/0067205X221126583
Rebecca Ananian-Welsh
This article provides the first comprehensive study of statutory definitions of ‘journalist’ and ‘journalism' in Australian law and proposes a preferred definition of journalist by reference to statutory aims, bedrock legal principles and broader scholarship. It begins with a review of existing literature on the meaning of ‘journalist' in the modern media landscape, before turning to Australian law. A qualitative survey of legislation identified 11 textually different definitions of the term ‘journalist’ across 18 separate statutes, and a single definition of ‘journalism’. Examination of the statutory contexts, purposes and framing of these definitions reveals they are comprised, broadly, of six ‘approaches’. These approaches are critically analysed against a novel five-part thematic framework, with particular attention given to whether journalists should be defined by reference to ethical codes and responsibilities. The article concludes by identifying a preferred definition of journalist capable of informing law reform across a wide-variety of areas of law, including protections for press freedom, journalistic access to information, shield laws and whistleblower protections.
{"title":"Who is a Journalist? A Critical Analysis of Australian Statutory Definitions","authors":"Rebecca Ananian-Welsh","doi":"10.1177/0067205X221126583","DOIUrl":"https://doi.org/10.1177/0067205X221126583","url":null,"abstract":"This article provides the first comprehensive study of statutory definitions of ‘journalist’ and ‘journalism' in Australian law and proposes a preferred definition of journalist by reference to statutory aims, bedrock legal principles and broader scholarship. It begins with a review of existing literature on the meaning of ‘journalist' in the modern media landscape, before turning to Australian law. A qualitative survey of legislation identified 11 textually different definitions of the term ‘journalist’ across 18 separate statutes, and a single definition of ‘journalism’. Examination of the statutory contexts, purposes and framing of these definitions reveals they are comprised, broadly, of six ‘approaches’. These approaches are critically analysed against a novel five-part thematic framework, with particular attention given to whether journalists should be defined by reference to ethical codes and responsibilities. The article concludes by identifying a preferred definition of journalist capable of informing law reform across a wide-variety of areas of law, including protections for press freedom, journalistic access to information, shield laws and whistleblower protections.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"449 - 478"},"PeriodicalIF":0.0,"publicationDate":"2022-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42130075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-27DOI: 10.1177/0067205X221126557
Jeffrey Gordon
Liberal democracies have struggled recently with protecting freedom of speech and assembly during the COVID-19 pandemic. This is an old, general problem in new, specific guise. In Australia, the Supreme Court of New South Wales has been exercising a statutory jurisdiction to ‘authorise’ or ‘prohibit’ proposed public assemblies for 40 years. This article offers the first sustained analysis of the Court’s jurisprudence. After describing the operation of the statutory permit scheme and systematising the case law, this article critiques the Court’s jurisprudence from the perspective of free speech and freedom of assembly. It then argues that there is a puzzle at the heart of the legislative scheme: the conferral of a wide discretion the exercise of which produces a narrow legal order. This puzzle suggests that the legal effect of an authorising or prohibiting order does not exhaust its broader social significance.
{"title":"Protest Before and During a Pandemic","authors":"Jeffrey Gordon","doi":"10.1177/0067205X221126557","DOIUrl":"https://doi.org/10.1177/0067205X221126557","url":null,"abstract":"Liberal democracies have struggled recently with protecting freedom of speech and assembly during the COVID-19 pandemic. This is an old, general problem in new, specific guise. In Australia, the Supreme Court of New South Wales has been exercising a statutory jurisdiction to ‘authorise’ or ‘prohibit’ proposed public assemblies for 40 years. This article offers the first sustained analysis of the Court’s jurisprudence. After describing the operation of the statutory permit scheme and systematising the case law, this article critiques the Court’s jurisprudence from the perspective of free speech and freedom of assembly. It then argues that there is a puzzle at the heart of the legislative scheme: the conferral of a wide discretion the exercise of which produces a narrow legal order. This puzzle suggests that the legal effect of an authorising or prohibiting order does not exhaust its broader social significance.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"421 - 448"},"PeriodicalIF":0.0,"publicationDate":"2022-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48051708","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-18DOI: 10.1177/0067205X221107408
Brandon Smith
The concept of ‘justiciability’ in Australian federal jurisprudence has been described by the High Court as a ‘slippery term of indeterminate reference’. With the High Court yet to comprehensively consider the concept of justiciability, Australia’s jurisprudence has failed to develop a coherent doctrine which is apt to govern the outer limits of judicial power under Chapter III of the Constitution. This article argues the transplantation of UK justiciability jurisprudence into Australia’s constitutional context, as well as doctrinal inconsistencies in UK case law, have resulted in applications of the doctrine which undermine key principles of federal judicial power. Drawing on existing case law, this article proposes a reconceptualisation of justiciability into three categories — constitutional competence, institutional capacity and institutional legitimacy — as a principled framework to be applied and developed by Australian jurists going forward.
{"title":"Reconceptualising ‘Justiciability’: Crafting a Coherent Framework for Australia’s Unique Constitutional Context","authors":"Brandon Smith","doi":"10.1177/0067205X221107408","DOIUrl":"https://doi.org/10.1177/0067205X221107408","url":null,"abstract":"The concept of ‘justiciability’ in Australian federal jurisprudence has been described by the High Court as a ‘slippery term of indeterminate reference’. With the High Court yet to comprehensively consider the concept of justiciability, Australia’s jurisprudence has failed to develop a coherent doctrine which is apt to govern the outer limits of judicial power under Chapter III of the Constitution. This article argues the transplantation of UK justiciability jurisprudence into Australia’s constitutional context, as well as doctrinal inconsistencies in UK case law, have resulted in applications of the doctrine which undermine key principles of federal judicial power. Drawing on existing case law, this article proposes a reconceptualisation of justiciability into three categories — constitutional competence, institutional capacity and institutional legitimacy — as a principled framework to be applied and developed by Australian jurists going forward.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"371 - 403"},"PeriodicalIF":0.0,"publicationDate":"2022-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42071547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-13DOI: 10.1177/0067205X221107409
T. Ross
The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) introduced the first offences for acts of foreign interference in Australian history. Inter alia, the laws target activities sponsored by a foreign principal which seek to influence Australia’s democratic processes using coercive, deceptive and covert conduct. The Act’s offences address coercive and deceptive conduct by foreign actors, which align with those behaviours which find contempt in international law. However, it is the Act’s targeting of ‘covert’ conduct which has drawn the widest criticism, and which was the subject of a High Court challenge in Zhang v Commissioner of Police [2021] HCA 16. Despite the High Court not being required to determine the validity of the foreign interference offences, there remain serious questions regarding the proportionality of the offences within the legislation which target covert behaviour which is not coercive or deceptive. Such benign covert behaviour is not condemned in international law, and its prohibition in Australia presents as an attempt by the government to remediate exploitable gaps in international law by controlling the interactions of its own citizenry with foreign actors. When the available alternatives to such measures are considered, this regulation appears excessive. Thus, a future challenge to Australia’s foreign interference laws may focus on the burden which the foreign interference offence’s ‘covert’ element places on the constitutionally entrenched implied freedom of political communication.
{"title":"The Weight of a Word: ‘Covert’ and the Proportionality of Australia’s Foreign Interference Laws","authors":"T. Ross","doi":"10.1177/0067205X221107409","DOIUrl":"https://doi.org/10.1177/0067205X221107409","url":null,"abstract":"The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) introduced the first offences for acts of foreign interference in Australian history. Inter alia, the laws target activities sponsored by a foreign principal which seek to influence Australia’s democratic processes using coercive, deceptive and covert conduct. The Act’s offences address coercive and deceptive conduct by foreign actors, which align with those behaviours which find contempt in international law. However, it is the Act’s targeting of ‘covert’ conduct which has drawn the widest criticism, and which was the subject of a High Court challenge in Zhang v Commissioner of Police [2021] HCA 16. Despite the High Court not being required to determine the validity of the foreign interference offences, there remain serious questions regarding the proportionality of the offences within the legislation which target covert behaviour which is not coercive or deceptive. Such benign covert behaviour is not condemned in international law, and its prohibition in Australia presents as an attempt by the government to remediate exploitable gaps in international law by controlling the interactions of its own citizenry with foreign actors. When the available alternatives to such measures are considered, this regulation appears excessive. Thus, a future challenge to Australia’s foreign interference laws may focus on the burden which the foreign interference offence’s ‘covert’ element places on the constitutionally entrenched implied freedom of political communication.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"581 - 610"},"PeriodicalIF":0.0,"publicationDate":"2022-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48279015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-29DOI: 10.1177/0067205X221107395
Shameek Sen, S. Guha
In this article, we seek to delineate the nature of India’s ongoing constitutional struggles against a grave crisis, considering the threat that such crisis poses to the functioning of the country’s constitutional democracy. Using the acceptable definitive models of such a crisis, we then try to examine the extent to which India’s constitutional struggle might have been necessary in order to confront such a crisis. The role played by the deliberate usage of the legal and prima facie constitutional routes to render the very spirit and safeguards of the constitutional system redundant, or the concept of autocratic legalism, as a singular symptom displayed by such a crisis, is focused upon in this context. We draw analogies from multiple jurisdictions with myriad political legacies, including the USA, Poland, Hungary, Turkey, Russia and the Latin American nations. Increasing the judicial burden to cripple the adjudicating machinery; appointment of judges exhibiting specific political inclination; emergence of a charismatic political leader commanding mass support — the potential impact of these factors on liberal constitutionalism is examined. The article delves into the Indian narrative, citing instances from the past such as the Nehruvian legacy of superseding the judiciary as watchdogs of constitutional values, emergency and relevant constitutional amendments, as well as from the present, such as abrogation of special status of Indian states like Jammu and Kashmir, introduction of national population register and modification of citizenship norms, passing contentious legislation via the Money Bill route to avoid close scrutiny and constitutional debates, reservation on economic grounds and introducing new tax structures impinging on the federal relationship. We assess the role played by the Indian judiciary in each of these instances, along with instances of judicial (pro)activism, and their impact on the overall stability of the judicial institution.
{"title":"The Struggles of the Indian Constitution in the Face of Autocratic Legalism: Constitutionalism at Crossroads?","authors":"Shameek Sen, S. Guha","doi":"10.1177/0067205X221107395","DOIUrl":"https://doi.org/10.1177/0067205X221107395","url":null,"abstract":"In this article, we seek to delineate the nature of India’s ongoing constitutional struggles against a grave crisis, considering the threat that such crisis poses to the functioning of the country’s constitutional democracy. Using the acceptable definitive models of such a crisis, we then try to examine the extent to which India’s constitutional struggle might have been necessary in order to confront such a crisis. The role played by the deliberate usage of the legal and prima facie constitutional routes to render the very spirit and safeguards of the constitutional system redundant, or the concept of autocratic legalism, as a singular symptom displayed by such a crisis, is focused upon in this context. We draw analogies from multiple jurisdictions with myriad political legacies, including the USA, Poland, Hungary, Turkey, Russia and the Latin American nations. Increasing the judicial burden to cripple the adjudicating machinery; appointment of judges exhibiting specific political inclination; emergence of a charismatic political leader commanding mass support — the potential impact of these factors on liberal constitutionalism is examined. The article delves into the Indian narrative, citing instances from the past such as the Nehruvian legacy of superseding the judiciary as watchdogs of constitutional values, emergency and relevant constitutional amendments, as well as from the present, such as abrogation of special status of Indian states like Jammu and Kashmir, introduction of national population register and modification of citizenship norms, passing contentious legislation via the Money Bill route to avoid close scrutiny and constitutional debates, reservation on economic grounds and introducing new tax structures impinging on the federal relationship. We assess the role played by the Indian judiciary in each of these instances, along with instances of judicial (pro)activism, and their impact on the overall stability of the judicial institution.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"275 - 291"},"PeriodicalIF":0.0,"publicationDate":"2022-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46960234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-28DOI: 10.1177/0067205X221107456
P. Rangiah
The words ‘the people’ of the States and of the Commonwealth appear throughout the Constitution, yet they have received little judicial attention. It remains unclear who constitutes ‘the people’ and what rights or freedoms membership of ‘the people’ entails. This essay explores these uncertainties, suggesting that ‘the people’ have an implied constitutional freedom to enter and remain in Australia without licence from the executive. Recognition of such an implied constitutional freedom would have important implications in the COVID-19 era for the validity of travel bans and restrictions, which exclude citizens from entering Australia on public health grounds.
{"title":"COVID Travel Bans, Citizenship and the Constitution: Do Australian Citizens Have a Constitutional Right of Abode?","authors":"P. Rangiah","doi":"10.1177/0067205X221107456","DOIUrl":"https://doi.org/10.1177/0067205X221107456","url":null,"abstract":"The words ‘the people’ of the States and of the Commonwealth appear throughout the Constitution, yet they have received little judicial attention. It remains unclear who constitutes ‘the people’ and what rights or freedoms membership of ‘the people’ entails. This essay explores these uncertainties, suggesting that ‘the people’ have an implied constitutional freedom to enter and remain in Australia without licence from the executive. Recognition of such an implied constitutional freedom would have important implications in the COVID-19 era for the validity of travel bans and restrictions, which exclude citizens from entering Australia on public health grounds.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"558 - 580"},"PeriodicalIF":0.0,"publicationDate":"2022-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43475676","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-27DOI: 10.1177/0067205x221107407
Caroline Henckels
Much of the core work of government is now done pursuant to contract with private sector bodies, primarily for efficiency reasons. While the phenomenon of contracting out of governmental functions has attracted increasing scholarly attention in terms of public law accountability, the use of commercial arbitration for the resolution of contractual disputes involving governments has until recently attracted scant attention. The law regulating commercial arbitration does not distinguish between arbitrations between private actors and arbitrations involving governments, treating all commercial disputes as wholly private in nature. By controlling government action, arbitrators contribute to governance but without the hallmarks of the judicial process such as impartiality, transparency, the possibility for third-party participation and judicial oversight. As such, the law does not take into account the public dimension of disputes under government contracts or the role of arbitrators as adjudicators of public law disputes. Nor do there appear to be any constitutional constraints on the use of arbitration in government contracts.
{"title":"Arbitration Under Government Contracts and Government Accountability","authors":"Caroline Henckels","doi":"10.1177/0067205x221107407","DOIUrl":"https://doi.org/10.1177/0067205x221107407","url":null,"abstract":"Much of the core work of government is now done pursuant to contract with private sector bodies, primarily for efficiency reasons. While the phenomenon of contracting out of governmental functions has attracted increasing scholarly attention in terms of public law accountability, the use of commercial arbitration for the resolution of contractual disputes involving governments has until recently attracted scant attention. The law regulating commercial arbitration does not distinguish between arbitrations between private actors and arbitrations involving governments, treating all commercial disputes as wholly private in nature. By controlling government action, arbitrators contribute to governance but without the hallmarks of the judicial process such as impartiality, transparency, the possibility for third-party participation and judicial oversight. As such, the law does not take into account the public dimension of disputes under government contracts or the role of arbitrators as adjudicators of public law disputes. Nor do there appear to be any constitutional constraints on the use of arbitration in government contracts.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"404 - 418"},"PeriodicalIF":0.0,"publicationDate":"2022-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47691745","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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