Pub Date : 2021-09-25DOI: 10.1177/0067205X211039888
A. Schmulow, Paul Mazzola, Daniel de Zilva
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.
{"title":"Twin Peaks 2.0: Avoiding Influence Over an Australian Financial Regulator Assessment Authority","authors":"A. Schmulow, Paul Mazzola, Daniel de Zilva","doi":"10.1177/0067205X211039888","DOIUrl":"https://doi.org/10.1177/0067205X211039888","url":null,"abstract":"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.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"505 - 527"},"PeriodicalIF":0.0,"publicationDate":"2021-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42037035","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 : 2021-09-23DOI: 10.1177/0067205X211039889
Joshua Sheppard
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.
{"title":"Why Does the Common Law Conform to the Constitution?","authors":"Joshua Sheppard","doi":"10.1177/0067205X211039889","DOIUrl":"https://doi.org/10.1177/0067205X211039889","url":null,"abstract":"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.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"569 - 593"},"PeriodicalIF":0.0,"publicationDate":"2021-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42286663","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 : 2021-06-04DOI: 10.1177/0067205X211016581
Murray Wesson
A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.
{"title":"The Reception of Structured Proportionality in Australian Constitutional Law","authors":"Murray Wesson","doi":"10.1177/0067205X211016581","DOIUrl":"https://doi.org/10.1177/0067205X211016581","url":null,"abstract":"A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"352 - 379"},"PeriodicalIF":0.0,"publicationDate":"2021-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X211016581","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43222003","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 : 2021-05-26DOI: 10.1177/0067205X211016575
M. Rawling, Sarah Kaine, Emmanuel Josserand, M. Boersma
There is now an expanding body of literature on the significant problem of business non-compliance with minimum labour standards including ‘wage theft’. Extended liability regulation beyond the direct employer is seen as one solution to this non-compliance in fragmented but hierarchically organised industries—such as the cleaning industry. This article uses empirical evidence to assess the effectiveness of one such regulatory scheme, the Cleaning Accountability Framework (CAF), in addressing non-compliance with minimum labour standards (including provisions of the Fair Work Act 2009 (Cth) and the Cleaning Services Award 2020). We find that CAF has been successful in identifying and rectifying certain non-compliance, improving working conditions for some cleaners involved in the scheme. We synthesise the key success factors of CAF in view of envisioning the adoption of such co-regulation frameworks in other industries. We also propose legal reforms that will support change across the cleaning industry.
{"title":"Multi-Stakeholder Frameworks for Rectification of Non-Compliance in Cleaning Supply Chains: The Case of the Cleaning Accountability Framework","authors":"M. Rawling, Sarah Kaine, Emmanuel Josserand, M. Boersma","doi":"10.1177/0067205X211016575","DOIUrl":"https://doi.org/10.1177/0067205X211016575","url":null,"abstract":"There is now an expanding body of literature on the significant problem of business non-compliance with minimum labour standards including ‘wage theft’. Extended liability regulation beyond the direct employer is seen as one solution to this non-compliance in fragmented but hierarchically organised industries—such as the cleaning industry. This article uses empirical evidence to assess the effectiveness of one such regulatory scheme, the Cleaning Accountability Framework (CAF), in addressing non-compliance with minimum labour standards (including provisions of the Fair Work Act 2009 (Cth) and the Cleaning Services Award 2020). We find that CAF has been successful in identifying and rectifying certain non-compliance, improving working conditions for some cleaners involved in the scheme. We synthesise the key success factors of CAF in view of envisioning the adoption of such co-regulation frameworks in other industries. We also propose legal reforms that will support change across the cleaning industry.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"438 - 464"},"PeriodicalIF":0.0,"publicationDate":"2021-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X211016575","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42755409","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 : 2021-05-25DOI: 10.1177/0067205X211016576
B. Mostyn, Niamh Kinchin
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.
{"title":"Can I Leave the House? A Coded Analysis of the Interpretation of the Reasonable Excuse Provision by NSW Police During the COVID-19 Lockdown","authors":"B. Mostyn, Niamh Kinchin","doi":"10.1177/0067205X211016576","DOIUrl":"https://doi.org/10.1177/0067205X211016576","url":null,"abstract":"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.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"465 - 495"},"PeriodicalIF":0.0,"publicationDate":"2021-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X211016576","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43867024","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 : 2021-05-19DOI: 10.1177/0067205X211016574
S. Dehm
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.
{"title":"Legal Exclusions: Émigré Lawyers, Admissions to Legal Practice and the Cultural Transformation of the Australian Legal Profession","authors":"S. Dehm","doi":"10.1177/0067205X211016574","DOIUrl":"https://doi.org/10.1177/0067205X211016574","url":null,"abstract":"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.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"327 - 351"},"PeriodicalIF":0.0,"publicationDate":"2021-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X211016574","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42712342","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 : 2021-05-19DOI: 10.1177/0067205X211016573
Pamela Hanrahan, T. Bednall
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.
澳大利亚公司法允许法院对疏忽大意的公司高管（包括董事）处以重大民事处罚。十多年来，澳大利亚证券和投资委员会（Australian Securities and Investments Commission）仅在官员被指控因公司违反监管或披露义务而使其公司面临可预见的损害风险的情况下，才对疏忽行为提起民事诉讼。这种被称为“垫脚石”的执法策略受到了强烈批评，包括Rares J在2020年对卡西马蒂斯上诉的反对意见中。本文解释了在公司合规失败的背景下，垫脚石如何作为一种执行策略发挥作用，探讨了对它的各种批评，并主张进行改革。它提出了一种重新平衡个人高管责任的立法替代方案，以反映当代治理实践，并鼓励更好地管理和监督公司的非金融风险。
{"title":"From Stepping-Stones to Throwing Stones: Officers’ Liability for Corporate Compliance Failures after Cassimatis","authors":"Pamela Hanrahan, T. Bednall","doi":"10.1177/0067205X211016573","DOIUrl":"https://doi.org/10.1177/0067205X211016573","url":null,"abstract":"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.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"380 - 409"},"PeriodicalIF":0.0,"publicationDate":"2021-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X211016573","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47788860","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 : 2021-03-09DOI: 10.1177/0067205X21993146
M. Castles, Tom Hvala, Kieran Pender
The 2014 judgment in Richardson v Oracle Corporation Australia Pty Ltd (‘Richardson’) had a seismic effect on workplace sexual harassment claims in Australia. Overnight, the ‘general range’ of damages awarded for non-economic loss in such cases increased from between $12 000 and $20 000 to $100 000 and above. The judgment has made Sex Discrimination Act 1984 (Cth) litigation considerably more attractive for plaintiffs and resulted in greater judicial recognition of the pain and suffering experienced by sexual harassment survivors. Richardson’s impact has also been felt beyond that immediate context, with the judgment cited in support of higher damages in discrimination cases and employment disputes. However, six years and over 40 judicial citations later, Richardson’s broader significance remains unclear—particularly following the emergence of the #MeToo movement. Drawing on a doctrinal analysis of subsequent case law and qualitative interviews with prominent Australian legal practitioners, this article evaluates Richardson’s legacy and considers how sexual harassment litigation may further evolve to reflect changing societal norms.
2014年Richardson诉Oracle Corporation Australia Pty Ltd（“Richardson”）一案的判决对澳大利亚的工作场所性骚扰指控产生了巨大影响。一夜之间，此类案件中非经济损失的“一般赔偿范围”从12000美元至20000美元增加到100000美元及以上。该判决使1984年《性别歧视法》（Cth）诉讼对原告更有吸引力，并使性骚扰幸存者所经历的痛苦得到了更多的司法承认。理查森的影响也超出了眼前的范围，该判决支持歧视案件和就业纠纷中更高的损害赔偿。然而，六年后，经过40多次司法传讯，理查森的更广泛意义仍然不清楚——尤其是在#MeToo运动出现之后。根据对随后判例法的理论分析和对澳大利亚著名法律从业者的定性采访，本文评估了理查森的遗产，并考虑了性骚扰诉讼如何进一步演变，以反映不断变化的社会规范。
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Pub Date : 2021-03-09DOI: 10.1177/0067205X21993147
S. White
The defence of superior orders is not new. However, within Australia, its statutory codification is lamentably underexplored. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) provides a neat catalyst to expand the defence and look at possible manners in which it can be constructed. Utilising a theoretical case study of Australian Defence Force members killing a possible terrorist, ‘this article addresses’ the key elements of the defence—what an order is, when can it be constructed as being manifestly unlawful and what does reasonable and necessary force mean for Australian Defence Force members.
{"title":"A Shield for the Tip of the Spear","authors":"S. White","doi":"10.1177/0067205X21993147","DOIUrl":"https://doi.org/10.1177/0067205X21993147","url":null,"abstract":"The defence of superior orders is not new. However, within Australia, its statutory codification is lamentably underexplored. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) provides a neat catalyst to expand the defence and look at possible manners in which it can be constructed. Utilising a theoretical case study of Australian Defence Force members killing a possible terrorist, ‘this article addresses’ the key elements of the defence—what an order is, when can it be constructed as being manifestly unlawful and what does reasonable and necessary force mean for Australian Defence Force members.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"210 - 230"},"PeriodicalIF":0.0,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X21993147","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42991932","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 : 2021-03-02DOI: 10.1177/0067205X21993158
J. Townsend, Hollie Kerwin
The establishment of the Immigration Assessment Authority (‘IAA’) and the Fast Track Processing Regime for certain asylum seekers has posed new and important questions for Australian administrative law, especially in respect of the place, scope and effect of merits review. This article considers the early and formative jurisprudence of the federal courts in relation to ‘Fast Track decisions’ made by the IAA. It concludes that the Fast Track process represents a novel development in Australian public law: a partial review process which is not sufficient to correct the errors of the decision-maker at first instance but which appeared for a time capable of immunising elements of the decision from appeal or direct judicial review. It is, in its intention and current operation, more than a ‘targeted tinkering’ with the mechanics of merits review and of migration law in Australia. It deserves attention as it commences its journey through superior courts and as the regime settles into the Australian administrative law landscape.
{"title":"Erasing the Vision Splendid? Unpacking the Formative Responses of the Federal Courts to the Fast Track Processing Regime and the ‘Limited Review’ of the Immigration Assessment Authority","authors":"J. Townsend, Hollie Kerwin","doi":"10.1177/0067205X21993158","DOIUrl":"https://doi.org/10.1177/0067205X21993158","url":null,"abstract":"The establishment of the Immigration Assessment Authority (‘IAA’) and the Fast Track Processing Regime for certain asylum seekers has posed new and important questions for Australian administrative law, especially in respect of the place, scope and effect of merits review. This article considers the early and formative jurisprudence of the federal courts in relation to ‘Fast Track decisions’ made by the IAA. It concludes that the Fast Track process represents a novel development in Australian public law: a partial review process which is not sufficient to correct the errors of the decision-maker at first instance but which appeared for a time capable of immunising elements of the decision from appeal or direct judicial review. It is, in its intention and current operation, more than a ‘targeted tinkering’ with the mechanics of merits review and of migration law in Australia. It deserves attention as it commences its journey through superior courts and as the regime settles into the Australian administrative law landscape.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"185 - 209"},"PeriodicalIF":0.0,"publicationDate":"2021-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X21993158","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47063563","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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