Pub Date : 2022-04-17DOI: 10.1177/0067205X221087460
D. Shah
Race, religion and royalty (the Three ‘Rs’) have been salient aspects of Malaysia’s constitutional struggle. These elements have defined the country’s constitutional settlements during the pre-independence constitution-making process, generated constitutional crises and continued to figure into day-to-day governance and constitutional practice. There have been instances where operation of and compromises around the Three Rs have facilitated constitution-building. Yet, more often than not, as this article illustrates, the constellation of these three forces have challenged the building and sustaining of a constitutional democracy. Since the historic political change in May 2018 in particular, the Three Rs have become even more significant in shaping the critical junctures in Malaysia’s constitutional journey. To illuminate a more comprehensive understanding of the role of race, religion and royalty in Malaysia’s struggle for constitutional democracy, this article explains how these elements have defined (and continued to define) controversies relating to the distribution of political power and the protection of fundamental rights. Fundamentally, these aspects implicate checks and balances and constraints on political power. This article also demonstrates the ways in which the struggle for constitutional democracy implicates a range of actors and interests: aside from individual citizens, there are the monarchy, the elected government, the courts and group (ethnic) interests. This article then draws on institutional and political explanations in accounting for Malaysia’s constitutional struggle. In particular, aside from changing political fundamentals, it argues that the Constitution provides the opportunity structure and institutional resources for the Three Rs to shape Malaysia's struggle for constitutional democracy.
{"title":"The ‘Three RS’ in Malaysia’s Struggle for Constitutional Democracy","authors":"D. Shah","doi":"10.1177/0067205X221087460","DOIUrl":"https://doi.org/10.1177/0067205X221087460","url":null,"abstract":"Race, religion and royalty (the Three ‘Rs’) have been salient aspects of Malaysia’s constitutional struggle. These elements have defined the country’s constitutional settlements during the pre-independence constitution-making process, generated constitutional crises and continued to figure into day-to-day governance and constitutional practice. There have been instances where operation of and compromises around the Three Rs have facilitated constitution-building. Yet, more often than not, as this article illustrates, the constellation of these three forces have challenged the building and sustaining of a constitutional democracy. Since the historic political change in May 2018 in particular, the Three Rs have become even more significant in shaping the critical junctures in Malaysia’s constitutional journey. To illuminate a more comprehensive understanding of the role of race, religion and royalty in Malaysia’s struggle for constitutional democracy, this article explains how these elements have defined (and continued to define) controversies relating to the distribution of political power and the protection of fundamental rights. Fundamentally, these aspects implicate checks and balances and constraints on political power. This article also demonstrates the ways in which the struggle for constitutional democracy implicates a range of actors and interests: aside from individual citizens, there are the monarchy, the elected government, the courts and group (ethnic) interests. This article then draws on institutional and political explanations in accounting for Malaysia’s constitutional struggle. In particular, aside from changing political fundamentals, it argues that the Constitution provides the opportunity structure and institutional resources for the Three Rs to shape Malaysia's struggle for constitutional democracy.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"137 - 155"},"PeriodicalIF":0.0,"publicationDate":"2022-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49397613","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 : 2022-02-28DOI: 10.1177/0067205x211066139
J. Howe, I. Nikoloudakis
This article addresses a gap in the scholarly literature on the legal regulation of temporary labour migration by tracing the legislative history and regulation of work visas for short stay specialists and occupational trainees. By reason of their acute temporariness, both short stay workers and occupational trainees could be regarded as having a migration status that makes them vulnerable in their work relations. In addition, this vulnerability means they may accept terms and conditions that undercut domestic labour standards. Although the detailed legislative tracing of both visas reveals various attempts to re-regulate both visas in favour of greater scrutiny of employer requests for overseas labour, tightening access requirements and increasing enforcement and monitoring capacity, these have been largely incapable of preventing instances of egregious exploitation. These case studies on two little-known visas mirror the growing concerns around the integrity of Australia’s temporary labour migration program more generally and point to the myriad tensions, challenges and complexities inherent in the regulation of temporary labour migration programs around the globe.
{"title":"Short Stay Visa Holders and Occupational Trainees in Australia’s Labour Migration Program: Regulatory Challenges at The Apex of Temporariness","authors":"J. Howe, I. Nikoloudakis","doi":"10.1177/0067205x211066139","DOIUrl":"https://doi.org/10.1177/0067205x211066139","url":null,"abstract":"This article addresses a gap in the scholarly literature on the legal regulation of temporary labour migration by tracing the legislative history and regulation of work visas for short stay specialists and occupational trainees. By reason of their acute temporariness, both short stay workers and occupational trainees could be regarded as having a migration status that makes them vulnerable in their work relations. In addition, this vulnerability means they may accept terms and conditions that undercut domestic labour standards. Although the detailed legislative tracing of both visas reveals various attempts to re-regulate both visas in favour of greater scrutiny of employer requests for overseas labour, tightening access requirements and increasing enforcement and monitoring capacity, these have been largely incapable of preventing instances of egregious exploitation. These case studies on two little-known visas mirror the growing concerns around the integrity of Australia’s temporary labour migration program more generally and point to the myriad tensions, challenges and complexities inherent in the regulation of temporary labour migration programs around the globe.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"40 - 61"},"PeriodicalIF":0.0,"publicationDate":"2022-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48462375","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 : 2022-02-22DOI: 10.1177/0067205X211066144
Matthew McLeod
This article analyses how governments across Australia and the world have employed ‘soft law’ in their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of voluminous, complex and everchanging public health orders, executive officials have utilised a variety of non-legal soft law instruments to inform the community of their rights and obligations. These instruments are beneficial — especially in a public health crisis — as they are comprehensible, adaptable and effective. However, their non-legal nature also presents significant accountability issues which challenge the Australian conception of the separation of powers. Soft law exists independent of any parliamentary authorisation or oversight. Subsequently, those affected by soft law lack almost any ability to challenge its use in court. To remedy such issues, this article recommends a greater role for administrative complaint mechanisms (such as Ombudsman recommendations and discretionary payment schemes) in combatting abuses of soft law. It further suggests that the limited adoption of two foreign doctrines — substantive legitimate expectations and epistemic deference — into Australian judicial review could aid in addressing this dilemma.
{"title":"Distancing From Accountability? Governments’ Use of Soft Law in the COVID-19 Pandemic","authors":"Matthew McLeod","doi":"10.1177/0067205X211066144","DOIUrl":"https://doi.org/10.1177/0067205X211066144","url":null,"abstract":"This article analyses how governments across Australia and the world have employed ‘soft law’ in their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of voluminous, complex and everchanging public health orders, executive officials have utilised a variety of non-legal soft law instruments to inform the community of their rights and obligations. These instruments are beneficial — especially in a public health crisis — as they are comprehensible, adaptable and effective. However, their non-legal nature also presents significant accountability issues which challenge the Australian conception of the separation of powers. Soft law exists independent of any parliamentary authorisation or oversight. Subsequently, those affected by soft law lack almost any ability to challenge its use in court. To remedy such issues, this article recommends a greater role for administrative complaint mechanisms (such as Ombudsman recommendations and discretionary payment schemes) in combatting abuses of soft law. It further suggests that the limited adoption of two foreign doctrines — substantive legitimate expectations and epistemic deference — into Australian judicial review could aid in addressing this dilemma.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"3 - 19"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"65417287","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 : 2022-02-22DOI: 10.1177/0067205X211066140
J. Chin, G. Edmond, Andrew Roberts
Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudice has long been a fundamental safeguard against unfair trials and wrongful convictions. In 2016, IMM v The Queen (IMM) curtailed that safeguard by holding that trial judges should assess probative value on the assumption that the evidence is reliable and credible. The IMM majority placed emphasis on the capacity of the evidence. In doing so, it provided a mysterious qualification: some evidence may lack probative value not because it is unreliable, but because it is ‘simply unconvincing’. The majority illustrated unconvincingness with the example of an unreliable eyewitness identification. Courts and legal scholars criticised the majority judgment for its harmful implications and for its apparent incoherence. From a review of almost 4 years of post-IMM jurisprudence and deeper exploration into one particular case, we find that ‘simply unconvincing’ has accentuated the confusion and inconsistency in Australian evidence jurisprudence.
{"title":"Simply Unconvincing: The High Court on Probative Value and Reliability in the Uniform Evidence Law","authors":"J. Chin, G. Edmond, Andrew Roberts","doi":"10.1177/0067205X211066140","DOIUrl":"https://doi.org/10.1177/0067205X211066140","url":null,"abstract":"Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudice has long been a fundamental safeguard against unfair trials and wrongful convictions. In 2016, IMM v The Queen (IMM) curtailed that safeguard by holding that trial judges should assess probative value on the assumption that the evidence is reliable and credible. The IMM majority placed emphasis on the capacity of the evidence. In doing so, it provided a mysterious qualification: some evidence may lack probative value not because it is unreliable, but because it is ‘simply unconvincing’. The majority illustrated unconvincingness with the example of an unreliable eyewitness identification. Courts and legal scholars criticised the majority judgment for its harmful implications and for its apparent incoherence. From a review of almost 4 years of post-IMM jurisprudence and deeper exploration into one particular case, we find that ‘simply unconvincing’ has accentuated the confusion and inconsistency in Australian evidence jurisprudence.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"104 - 127"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49450023","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 : 2022-02-17DOI: 10.1177/0067205X211066142
L. Crawford
This article examines the 2020 decisions of the High Court on constitutional law through the lens of the Communist Party Case, taking the 70th anniversary of that decision as an opportunity to reflect on the ongoing utility and efficacy of the constitutional principles it espoused. It focuses on the way in which constitutional meaning may be informed by ordinary legislation, the common law and the rich backdrop of principles and values against which the Constitution was drafted — particularly, the rule of law. In doing so, the article highlights enduring questions about the scope of the High Court’s power to remedy those deficiencies in the Constitution that reveal themselves over time.
{"title":"The Communist Party Case Revisited: Constitutional Review in the 2020 Term","authors":"L. Crawford","doi":"10.1177/0067205X211066142","DOIUrl":"https://doi.org/10.1177/0067205X211066142","url":null,"abstract":"This article examines the 2020 decisions of the High Court on constitutional law through the lens of the Communist Party Case, taking the 70th anniversary of that decision as an opportunity to reflect on the ongoing utility and efficacy of the constitutional principles it espoused. It focuses on the way in which constitutional meaning may be informed by ordinary legislation, the common law and the rich backdrop of principles and values against which the Constitution was drafted — particularly, the rule of law. In doing so, the article highlights enduring questions about the scope of the High Court’s power to remedy those deficiencies in the Constitution that reveal themselves over time.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"20 - 39"},"PeriodicalIF":0.0,"publicationDate":"2022-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49069188","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 : 2022-02-15DOI: 10.1177/0067205x211066141
A. Hewitt
This article extends current understandings of regulation of tertiary education, in particular, work experience undertaken by tertiary students, by contributing a ‘law in practice’ analysis of the effect of the existing regulatory regime on work integrated learning practice within Australian universities. It considers how Australian universities are responding to, implementing, or overlooking the formal regulatory framework regarding work experience placements. The analysis is informed by data gathered in a series of 68 semi-structured interviews conducted with individuals from 15 universities around Australia and provides unique insights into how Universities are acting as regulators in the broad sense of the word. Understanding the enforcement of educational regulation is important, because it is the only national tool directed to ensuring work experience opportunities afford real learning which will facilitate skills development and increase future employment opportunities and are equitable and safe for student participants.
{"title":"Is Legislation Governing Tertiary Work Experience Effective? Exploring the Regulatory Role Played by Australian Universities","authors":"A. Hewitt","doi":"10.1177/0067205x211066141","DOIUrl":"https://doi.org/10.1177/0067205x211066141","url":null,"abstract":"This article extends current understandings of regulation of tertiary education, in particular, work experience undertaken by tertiary students, by contributing a ‘law in practice’ analysis of the effect of the existing regulatory regime on work integrated learning practice within Australian universities. It considers how Australian universities are responding to, implementing, or overlooking the formal regulatory framework regarding work experience placements. The analysis is informed by data gathered in a series of 68 semi-structured interviews conducted with individuals from 15 universities around Australia and provides unique insights into how Universities are acting as regulators in the broad sense of the word. Understanding the enforcement of educational regulation is important, because it is the only national tool directed to ensuring work experience opportunities afford real learning which will facilitate skills development and increase future employment opportunities and are equitable and safe for student participants.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"62 - 85"},"PeriodicalIF":0.0,"publicationDate":"2022-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48745277","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 : 2022-02-15DOI: 10.1177/0067205X211066143
E. Schofield-Georgeson
‘Penalty privilege’ is sometimes referred to as ‘the right to silence’ or more correctly the privilege against self-exposure to civil penalty. It is a procedural rule that applies equally to trade unions and corporations in Australian federal courts. This article critically investigates this equality of this treatment, revealing its historical evolution and arguing that it results in unequal outcomes, relative to the social and historical roles of unions and corporations. But it also discovers distinct incoherence in the application of penalty privilege, along with a host of related legislative interventions that have sought to entrench the equal treatment of trade unions and corporations more broadly. Accordingly, this article proposes a range of reform, with a particular focus on the application of penalty privilege in the federal arena. A more coherent application of penalty privilege, it is proposed, is one that applies in proportion to the social power exercised by persons and entities before the Court.
{"title":"Silent Partners? Trade Unions, Corporations and Penalty Privilege in the Federal Court of Australia","authors":"E. Schofield-Georgeson","doi":"10.1177/0067205X211066143","DOIUrl":"https://doi.org/10.1177/0067205X211066143","url":null,"abstract":"‘Penalty privilege’ is sometimes referred to as ‘the right to silence’ or more correctly the privilege against self-exposure to civil penalty. It is a procedural rule that applies equally to trade unions and corporations in Australian federal courts. This article critically investigates this equality of this treatment, revealing its historical evolution and arguing that it results in unequal outcomes, relative to the social and historical roles of unions and corporations. But it also discovers distinct incoherence in the application of penalty privilege, along with a host of related legislative interventions that have sought to entrench the equal treatment of trade unions and corporations more broadly. Accordingly, this article proposes a range of reform, with a particular focus on the application of penalty privilege in the federal arena. A more coherent application of penalty privilege, it is proposed, is one that applies in proportion to the social power exercised by persons and entities before the Court.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"86 - 103"},"PeriodicalIF":0.0,"publicationDate":"2022-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43007098","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 : 2021-10-26DOI: 10.1177/0067205x211039887
E. Hammond
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; [2017] 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.
这篇文章认为，宪法关于司法审查的根深蒂固的规定可以被理解为对特定类别的政府权力的法律责任的保障，即对权利和义务具有法律效力的权力（“管辖权”）。本文的论点是由Kaldas v Barbour（2017）350 ALR 292中的观察结果引发的；[2017]NSWCA 275关于可接受国家权力根深蒂固的司法审查的行政行为类别。这篇文章表明，将这一理解应用于对英联邦权力的根深蒂固的审查具有重要的解释价值。它揭示了对英联邦权力根深蒂固审查的两个令人困惑的特征：行政和司法权力之间的区别，这是对英联邦行政行动根深蒂固审查的分权理由的基础，以及第75（iii）条和第75（v）条针对英联邦官员的禁令之间的界限。将根深蒂固的审查视为司法管辖区法律责任的保障，促使人们对其宪法依据及其对法治政府的具体贡献有了新的认识。
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Pub Date : 2021-10-26DOI: 10.1177/0067205X211039892
Lynsey Blayden
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.
{"title":"Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin","authors":"Lynsey Blayden","doi":"10.1177/0067205X211039892","DOIUrl":"https://doi.org/10.1177/0067205X211039892","url":null,"abstract":"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.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"594 - 619"},"PeriodicalIF":0.0,"publicationDate":"2021-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47843346","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 : 2021-10-23DOI: 10.1177/0067205x211050853
James Allan
It is, of course, flattering to have not one, but two, fellow constitutional law scholars take issue, in print, with something I recently wrote in the pages of this law review. And so I am most grateful to both Elisa Arcioni and Jonathan Crowe. Now, given the space constraints, I will keep this short, focussed on a few core disagreements, and comprehensible to readers who may not have read the earlier articles. My original piece, ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?’, in the pages of this law review was an extended critique of a recent High Court decision. Part of that critique involved a more foundational criticism of the entire judicially created implied rights jurisprudence. Crowe, in ‘Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni’, and Arcioni, in ‘Some Reflections on “Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?”’, took issue with my views on the proper approach to constitutional interpretation (though for Arcioni it was more to do with what sort of results that approach would deliver). As Crowe’s criticisms are far more deep-rooted, I will respond to him first. Note, however, that my original article was specifically aimed at criticising the High Court’s recent jurisprudence. It was not a wider theoretical piece defending a particular approach to constitutional interpretation. As it happens, I have written the latter sort of chapters and articles, too; indeed, Crowe cites one of them, and these can be consulted for a more detailed defence of what I will sketch out here. You see, I am a defender of what is known as ‘originalism’. Crowe is not. So perhaps it might be best to begin with a
{"title":"Arcioni, Crowe and Allan on Constitutional Interpretation: A Worder of Crowes","authors":"James Allan","doi":"10.1177/0067205x211050853","DOIUrl":"https://doi.org/10.1177/0067205x211050853","url":null,"abstract":"It is, of course, flattering to have not one, but two, fellow constitutional law scholars take issue, in print, with something I recently wrote in the pages of this law review. And so I am most grateful to both Elisa Arcioni and Jonathan Crowe. Now, given the space constraints, I will keep this short, focussed on a few core disagreements, and comprehensible to readers who may not have read the earlier articles. My original piece, ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?’, in the pages of this law review was an extended critique of a recent High Court decision. Part of that critique involved a more foundational criticism of the entire judicially created implied rights jurisprudence. Crowe, in ‘Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni’, and Arcioni, in ‘Some Reflections on “Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?”’, took issue with my views on the proper approach to constitutional interpretation (though for Arcioni it was more to do with what sort of results that approach would deliver). As Crowe’s criticisms are far more deep-rooted, I will respond to him first. Note, however, that my original article was specifically aimed at criticising the High Court’s recent jurisprudence. It was not a wider theoretical piece defending a particular approach to constitutional interpretation. As it happens, I have written the latter sort of chapters and articles, too; indeed, Crowe cites one of them, and these can be consulted for a more detailed defence of what I will sketch out here. You see, I am a defender of what is known as ‘originalism’. Crowe is not. So perhaps it might be best to begin with a","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"499 - 504"},"PeriodicalIF":0.0,"publicationDate":"2021-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43395171","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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