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Contracts and the Implied Freedom of Political Communication 契约与隐含的政治传播自由
Q3 Social Sciences Pub Date : 2021-03-01 DOI: 10.1177/0067205X20979754
P. McCabe
This article considers the phenomenon of contractually-imposed restraints on political communication. Such restraints often incidentally arise from broad limits on out-of-hours conduct imposed by employment contracts or from confidentiality or non-disparagement clauses in deeds of settlement. It is argued that the implied freedom of political communication has work to do in relation to at least some categories of such restraints. The various objections to that view are examined and it is argued those objections are not compelling. The article analyses the question of how the implied freedom would operate in respect of contracts that impermissibly burden freedom of political communication, and suggests that this may be achieved by developing the common law of contract to accomodate a doctrine similar to the doctrine governing unreasonable restraints of trade.
本文探讨了契约约束政治传播的现象。这种限制往往偶然产生于雇佣合同对非工作时间行为的广泛限制,或和解契约中的保密或非贬损条款。有人认为,隐含的政治沟通自由至少在某些类别的此类限制方面还有工作要做。对这一观点的各种反对意见都进行了审查,有人认为这些反对意见没有说服力。文章分析了隐含自由如何在不允许加重政治沟通自由负担的合同中发挥作用的问题,并建议可以通过发展普通合同法来适应类似于管理不合理贸易限制的原则来实现这一点。
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引用次数: 0
Public Servants and the Implied Freedom of Political Communication 公务员与隐含的政治沟通自由
Q3 Social Sciences Pub Date : 2021-03-01 DOI: 10.1177/0067205X20973477
A. Gray
The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.
澳大利亚高等法院最近推翻了一项有利于一名公务员的法庭裁决,该公务员因在推特上批评各种政客和政府政策而被解雇。法院所有成员都认为相关条款是有效的,没有侵犯隐含的政治沟通自由。本文首先讨论了普通法中言论自由的发展,通过治理思想从霍布斯传统到洛克代议制政府模式的发展。代议制政府的理念支撑了高等法院早些时候关于政治沟通自由的裁决,反映了人民主权、问责制和选举时知情决定等价值观。然后,文章从这个角度考虑了对公务员参与公共辩论能力的限制。其他地方的学者和法院已经认识到公务员可以为代议制民主做出重要贡献。最近的决定对这些捐款没有足够的兴趣,也太愿意接受政府的论点,即有必要以非政治和独立的公共服务的名义压制公务员的意见,而没有考虑民主方面的反驳,也没有足够的证据表明政府职能受到了实际或可能的干扰。法院进行的相称性分析是不充分的,因为它没有这样做。虽然公务员的通信自由不是绝对的,但限制必须受到严格限制,并完全合理。在这种情况下,两项测试都不合格。
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引用次数: 0
Moving Beyond the Common Law Objection to Structured Proportionality 超越普通法对结构比例性的反对
Q3 Social Sciences Pub Date : 2021-03-01 DOI: 10.1177/0067205X20981512
Anne Carter
This article examines the claim that the adoption of structured proportionality testing in Australian constitutional review is ill-suited to Australia’s common law tradition. That objection has been stated by some members of the High Court and scholars, though the precise basis of the objection has not been clearly articulated. This article clarifies and evaluates this objection, setting out a number of distinct concerns which emerge from the reasoning of the minority justices. Ultimately, the article argues that the objection has been too starkly cast and that Australia’s common law tradition does not present an insurmountable obstacle to the introduction of proportionality testing in constitutional review.
本文探讨了在澳大利亚宪法审查中采用结构化比例测试不适合澳大利亚普通法传统的说法。高等法院的一些成员和学者已经提出了这一反对意见,尽管反对意见的确切依据尚未明确阐明。本文澄清并评估了这一反对意见,提出了少数族裔法官推理中出现的一些不同的担忧。最终,文章认为,反对意见过于明显,澳大利亚的普通法传统并没有成为在宪法审查中引入相称性测试的不可逾越的障碍。
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引用次数: 0
Towards Responsiveness: Consumer and Citizen Engagement in Co-Regulatory Rule-Making in the Australian Communications Sector 对响应:消费者和公民参与共同监管规则制定在澳大利亚通信部门
Q3 Social Sciences Pub Date : 2021-02-18 DOI: 10.1177/0067205X21993148
Karen Lee, D. Wilding
This article begins the process of evaluating the adequacy of the procedural and substantive requirements that Australian communications regulators (and hence industry bodies) must satisfy before co-regulatory codes of practice can be registered. It considers if the procedural requirements relating to consumer and public consultation, included in the statutory frameworks that authorise and govern co-regulation in the media, online and telecommunications sectors, ensure co-regulatory rule-making is sufficiently responsive to the interests of consumers and citizens. Drawing on publicly available information about seven industry bodies that have drafted codes of practice and round table discussions with industry, consumers and regulators, the article highlights that the current engagement practices of industry bodies often fall short of the ‘democratic credentials’ of responsiveness. It suggests that the code registration criteria relating to consumer and public consultation must be overhauled if these weaknesses are to be rectified.
本文开始评估澳大利亚通信监管机构(以及行业机构)在注册共同监管行为守则之前必须满足的程序和实质性要求的充分性。它考虑了与消费者和公众咨询相关的程序要求,包括在授权和管理媒体、在线和电信部门共同监管的法律框架中,是否确保共同监管规则制定充分响应消费者和公民的利益。根据七个起草了行为准则的行业机构的公开信息,以及与行业、消费者和监管机构的圆桌讨论,这篇文章强调,行业机构目前的参与实践往往缺乏回应的“民主证书”。它建议,如果要纠正这些弱点,就必须彻底改革与消费者和公众咨询有关的代码注册标准。
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引用次数: 1
The Big Picture: Imagining the Constitution 大图景:想象宪法
Q3 Social Sciences Pub Date : 2021-02-18 DOI: 10.1177/0067205X21993150
D. Manderson
In Australia, a technocratic minimalist approach to constitutional interpretation leaves little space for what has recently been described as a ‘democratic’ or ‘social’ ‘constitutional imaginary’. The ‘big picture’ of what a constitution is, and why it matters, is systematically reduced to a ‘strict and complete legalism’ that shows little interest in the social and cultural functions of a constitution in the modern world. The ‘dual citizenship’ cases (2017–18), concerning s 44 of the Australian Constitution, provide an exceptional case study. The High Court of Australia’s narrow positivism shielded it from criticism, but at a high cost to Australia’s democratic and social fabric. This article argues that, at a time when the rule of law and the public sphere is under threat as never before, we can and should expect more of our peak legal institutions. A constitutional court without a broader commitment to constitutionalism imperils the legitimacy of the whole constitutional order and of the public sphere.
在澳大利亚,技术官僚式的宪法解释方法几乎没有为最近被描述为“民主”或“社会”的“宪法想象”留下空间。宪法是什么以及为什么重要的“大局”被系统地简化为“严格而完整的法律主义”,对现代世界宪法的社会和文化功能几乎没有兴趣。“双重国籍”案件(2017-18)涉及《澳大利亚宪法》第44条,提供了一个例外案例研究。澳大利亚高等法院狭隘的实证主义使其免受批评,但对澳大利亚的民主和社会结构付出了高昂的代价。这篇文章认为,在法治和公共领域前所未有地受到威胁的时候,我们可以也应该期待更多的顶级法律机构。一个对宪政没有更广泛承诺的宪法法院危及整个宪法秩序和公共领域的合法性。
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引用次数: 1
The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality COVID-19大流行、法院和在线听证会:维护公开司法、程序公平和公正
Q3 Social Sciences Pub Date : 2021-02-15 DOI: 10.1177/0067205X21993139
M. Legg
The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic, courts need to function in a manner consistent with their institutional role and their essential characteristics. This article uses the unique circumstances brought about by the pandemic to consider how courts can embrace technology but maintain the core or essential requirements of a court. This article identifies three essential features of courts—open justice, procedural fairness and impartiality—and examines how this recent adoption of technology has maintained or challenged those essential features. This examination allows for an assessment of how the courts operated during the pandemic and also provides guidance for making design decisions about a technology-enabled future court.
2019冠状病毒病大流行和随之而来的强制性健康保护使法院将通信技术作为能够继续发挥作用的手段。然而,法院是根据法治行使司法权的独特机构。即使在大流行病期间,法院也需要以与其机构作用及其基本特征相一致的方式发挥作用。本文利用大流行带来的独特情况来考虑法院如何在接受技术的同时保持法院的核心或基本要求。本文确定了法院的三个基本特征——公开司法、程序公平和公正——并考察了最近技术的采用是如何维持或挑战这些基本特征的。这种审查可以评估法院在大流行期间的运作情况,并为就技术支持的未来法院作出设计决定提供指导。
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引用次数: 9
Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality 作为宪法价值的尊严:堕胎、政治沟通和相称性
Q3 Social Sciences Pub Date : 2021-01-08 DOI: 10.1177/0067205X211039890
Caroline Henckels, R. Sifris, Tania Penovic
This article examines the High Court of Australia’s treatment of the concept of dignity as both a value animating the implied freedom of political communication and as a legitimate reason to limit the exercise of that freedom. It does so through the lens of Clubb v Edwards, Preston v Avery, where the Court found that laws establishing safe access zones around abortion clinics were compatible with the implied freedom. The use of dignity as a prism through which to view the interests at stake in both abortion and speech cases is a familiar feature of developments abroad, and the Court has laid the foundations for recognition of dignity as one of the axiological bases of the implied freedom in a manner that generally emphasises individual autonomy over other conceptions of dignity that might be described as operating as a constraint on behaviour to protect other interests. Yet, while the Court has used dignity as the common measure with which to commensurate competing claims, it has yet to convincingly address concerns regarding incommensurability that attend the balancing stage of proportionality review, not to mention the potential objection that its reliance on dignity is not properly grounded in the text and structure of the Constitution. In light of these issues, the role of dignity ought to be tethered to its central role in facilitating political participation so as to more clearly link the concept to the text and structure of the Constitution, and to identify what is at stake when women’s ability to access reproductive health care is impaired or denied.
这篇文章审查了澳大利亚高等法院对尊严概念的处理,认为这既是一种激励隐含的政治交流自由的价值观,也是限制行使这种自由的正当理由。它是通过Clubb诉Edwards案、Preston诉Avery案的视角来做到这一点的,在这些案件中,法院发现在堕胎诊所周围建立安全出入区的法律与隐含的自由相兼容。利用尊严作为棱镜来看待堕胎和言论案件中的利害关系,是国外事态发展的一个常见特征,法院为承认尊严是隐含自由的价值论基础之一奠定了基础,其方式通常强调个人自主,而不是其他尊严概念,这些概念可以被描述为对保护其他利益的行为的约束。然而,尽管最高法院已将尊严作为对相称的相互竞争的索赔的共同衡量标准,但它尚未令人信服地解决相称性审查平衡阶段对不可通约性的担忧,更不用说潜在的反对意见,即其对尊严的依赖没有在《宪法》的文本和结构中得到适当的依据。鉴于这些问题,尊严的作用应与其在促进政治参与方面的核心作用相联系,以便更明确地将这一概念与《宪法》的文本和结构联系起来,并确定当妇女获得生殖保健的能力受到损害或被拒绝时,关系到什么。
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引用次数: 0
Corrigendum to Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni 宪法文本、权威意图和隐含权利的更正:对艾伦和阿尔西奥尼的回应
Q3 Social Sciences Pub Date : 2020-12-03 DOI: 10.1177/0067205x20980909
Jim Allan contends in a recent issue of the Federal Law Review that the High Court’s implied rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional text and the historical intentions of its authors. Elisa Arcioni’s response accepts that constitutional doctrines should be grounded in the text and authorial intentions but argues that the implied rights cases meet this standard. Arcioni is correct, but more can usefully be said about the precise interpretive basis for the implied rights reasoning. A faithful attempt to give effect to the framers’ intentions, as I have shown in detail elsewhere, must sometimes ask not only what they had in mind when the text was written but also what those intentions entail in a contemporary setting. This involves placing both the constitutional text and authorial intentions within a broader context of legal and social institutions. The High Court’s implied rights jurisprudence, viewed in this light, is a legitimate attempt to identify and apply the Constitution’s intended meaning.
吉姆·艾伦在最近一期的《联邦法律评论》中主张,高等法院的隐含权利判例是不合法的,因为它没有充分地与宪法文本及其作者的历史意图相联系。Elisa Arcioni的回应接受宪法原则应以文本和作者意图为基础,但认为隐含权利案件符合这一标准。Arcioni是正确的,但是关于默示权利推理的精确解释基础,我们可以说得更多。正如我在其他地方详细展示的那样,忠实地试图实现制宪者的意图,有时不仅要问他们在撰写文本时的想法,还要问这些意图在当代背景下需要考虑什么。这涉及将宪法文本和作者意图置于法律和社会制度的更广泛背景下。从这个角度来看,高等法院的默示权利判例是一种确定和适用《宪法》预期含义的合法尝试。
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引用次数: 0
The Efficacy of Australia Adopting a Debarment Regime in Public Procurement 澳大利亚在公共采购中采用约束制度的效果
Q3 Social Sciences Pub Date : 2020-11-28 DOI: 10.1177/0067205X20973478
O. Dixon
While transparent and efficient public sector procurement systems facilitate innumerable opportunities for stakeholders, the scale and scope of the global procurement market has rendered it increasingly vulnerable to corruption. The Organisation for Economic Co-operation and Development estimates that annually US$2 trillion of public funds is lost to corruption, yet governments have failed to respond with robust measures to deter such practice. Through comparing the debarment frameworks and policy goals across five jurisdictions, this article argues that Australia should consider adopting a discretionary debarment regime. By excluding bidders who have engaged in ‘corporate integrity offences’ from procurement contracts, debarment policies offer a potentially important mechanism in the fight against corruption. Debarment would not only protect the government from current threats, but it may also deter potential wrongdoers, encourage contractors to rehabilitate themselves, incapacitate actual offenders and facilitate development of a culture of compliance through the competitive advantage gains enjoyed by law-abiding firms.
虽然透明和高效的公共部门采购系统为利益攸关方提供了无数机会,但全球采购市场的规模和范围使其越来越容易受到腐败的影响。据经济合作与发展组织(oecd)估计,每年有2万亿美元的公共资金因腐败而流失,但各国政府未能采取有力措施遏制这种行为。通过比较五个司法管辖区的禁令框架和政策目标,本文认为澳大利亚应该考虑采用自由裁量的禁令制度。通过将犯有“企业诚信罪行”的投标人排除在采购合同之外,资格限制政策为打击腐败提供了一个潜在的重要机制。制裁不仅可以保护政府免受当前的威胁,还可以震慑潜在的违法者,鼓励承包商改过自新,使实际违法者丧失能力,并通过守法公司享有的竞争优势促进守法文化的发展。
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引用次数: 1
The Reserve Powers in Times of Political Crisis: The Dutton/Turnbull Leadership Challenge and Royal Assent to the Medevac Bill and Brexit Bills 政治危机时期的后备权力:达顿/特恩布尔领导的挑战和对医疗后送法案和英国脱欧法案的皇家批准
Q3 Social Sciences Pub Date : 2020-11-25 DOI: 10.1177/0067205x20973485
A. Twomey
The period of 2018–19 threw up political crises in Australia and the United Kingdom that raised circumstances in which the reserve powers of the Queen or the Governor-General might have been exercised. This article discusses in depth the 2018 challenge to Prime Minister Turnbull’s leadership, including how the Governor-General should have responded if he had been asked to dissolve Parliament in the midst of the challenge or if he had been advised not to appoint Dutton as Prime Minister due to concerns about his eligibility to sit in Parliament. The second part deals with the question of whether royal assent should be refused, upon ministerial advice, to a bill, such as the Medevac Bill in Australia and two Brexit delay bills in the United Kingdom, which were passed against the wishes of the relevant government, including when procedural or non-justiciable constitutional requirements were breached in the passage of the bills. It concludes that the best way of resolving such issues is to resort to the application of fundamental constitutional principles.
2018-19年期间,澳大利亚和英国爆发了政治危机,引发了女王或总督可能行使保留权力的情况。本文深入讨论了2018年对特恩布尔总理领导层的挑战,包括如果总督在挑战中被要求解散议会,或者由于担心达顿是否有资格参加议会而被建议不要任命他为总理,他应该如何回应。第二部分讨论了是否应根据部长的建议,拒绝批准一项法案的问题,如澳大利亚的Medevac法案和英国的两项脱欧延期法案,这些法案是违背相关政府的意愿通过的,包括在通过法案时违反了程序性或不可审理的宪法要求。它的结论是,解决这些问题的最佳方式是适用基本宪法原则。
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引用次数: 0
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