After more than two decades winding its way through a variety of United Nations (UN) mechanisms, in September 2007 the world’s indigenous peoples welcomed the news that the UN Declaration on the Rights of Indigenous Peoples (hereinafter the Declaration) was at last approved by the vast majority of nation-states.2 The four settler3 states that opposed the Declaration initially (the United States, Canada, Australia and New Zealand) have each in turn voiced their ultimate approval of the declaration and have issued statements in support to their indigenous citizens. In spite of the fact that these statements expressed a measure of regret for past wrongs committed, not one of those endorsements embodied a formal apology. Now that the Declaration has entered its eleventh year, many continue to question to what extent these endorsements have meaningfully advanced reconciliation for indigenous peoples and whether these endorsements were authentic in their stated desire to do more than just acknowledge the aspirations contained in the Declaration. This comment will examine the framework for political apologies in general and then consider the endorsements of the Declaration by the United States, Canada, Australia and New Zealand in light of contemporary apology theory. The article will then examine affirmative actions taken by those states following their endorsements in order to advance the claims of indigenous peoples and look at whether these actions have fallen short in providing meaningful redress for centuries of past wrongs.
{"title":"Non-Apology in the Age of Apology","authors":"Aliza Organick","doi":"10.5750/DLJ.V31I1.1793","DOIUrl":"https://doi.org/10.5750/DLJ.V31I1.1793","url":null,"abstract":"After more than two decades winding its way through a variety of United Nations (UN) mechanisms, in September 2007 the world’s indigenous peoples welcomed the news that the UN Declaration on the Rights of Indigenous Peoples (hereinafter the Declaration) was at last approved by the vast majority of nation-states.2 The four settler3 states that opposed the Declaration initially (the United States, Canada, Australia and New Zealand) have each in turn voiced their ultimate approval of the declaration and have issued statements in support to their indigenous citizens. In spite of the fact that these statements expressed a measure of regret for past wrongs committed, not one of those endorsements embodied a formal apology. Now that the Declaration has entered its eleventh year, many continue to question to what extent these endorsements have meaningfully advanced reconciliation for indigenous peoples and whether these endorsements were authentic in their stated desire to do more than just acknowledge the aspirations contained in the Declaration. This comment will examine the framework for political apologies in general and then consider the endorsements of the Declaration by the United States, Canada, Australia and New Zealand in light of contemporary apology theory. The article will then examine affirmative actions taken by those states following their endorsements in order to advance the claims of indigenous peoples and look at whether these actions have fallen short in providing meaningful redress for centuries of past wrongs.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126410987","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}
Aims: The purpose of this study was to identify whether NHS Trusts where discrimination in the delivery of care to patients from the South Asian community had been demonstrated had taken any actions to address the issue over the subsequent year.Methods: Freedom of information requests were sent to three trusts which had provided evidence of disparate provision of biologic therapy to patients with Crohn’s disease, their associated Clinical Commissioning Groups and Healthwatch organisations to seek evidence they had remedied the situation. Requests were also sent to the Care Quality Commission, NHS Improvement and the Equality and Human Rights Commission seeking examples where they had responded to inequitable delivery of care related to ethnicity.Results: No organisation had any evidence of responses to the situation, many unable to accept its existence.Conclusion: Legal duties are discussed and the only remedy appears to be through the tort of negligence.
{"title":"Does the failure to provide equitable access to treatment lead to action by NHS organisations: the case of biologics for South Asians with inflammatory bowel disease?","authors":"A. Farrukh, J. Mayberry","doi":"10.5750/DLJ.V31I1.1708","DOIUrl":"https://doi.org/10.5750/DLJ.V31I1.1708","url":null,"abstract":"Aims: The purpose of this study was to identify whether NHS Trusts where discrimination in the delivery of care to patients from the South Asian community had been demonstrated had taken any actions to address the issue over the subsequent year.Methods: Freedom of information requests were sent to three trusts which had provided evidence of disparate provision of biologic therapy to patients with Crohn’s disease, their associated Clinical Commissioning Groups and Healthwatch organisations to seek evidence they had remedied the situation. Requests were also sent to the Care Quality Commission, NHS Improvement and the Equality and Human Rights Commission seeking examples where they had responded to inequitable delivery of care related to ethnicity.Results: No organisation had any evidence of responses to the situation, many unable to accept its existence.Conclusion: Legal duties are discussed and the only remedy appears to be through the tort of negligence.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117024001","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}
The Editorial Team of the Denning Law Journal are pleased to offer its 2019 General Edition, which covers a range of topical issues that fall within the remit of the journal and keeps faith with Lord Denning’s vision and far-sightedness. The aim of the Denning Law Journal is to provide a forum for the widest discussion of issues arising in the common law world and the Commonwealth, and also to embrace wider global issues of contemporary concern.
{"title":"Introduction to the 2019 General Election","authors":"Sarah Sargent, James Slater","doi":"10.5750/DLJ.V31I1.1790","DOIUrl":"https://doi.org/10.5750/DLJ.V31I1.1790","url":null,"abstract":"The Editorial Team of the Denning Law Journal are pleased to offer its 2019 General Edition, which covers a range of topical issues that fall within the remit of the journal and keeps faith with Lord Denning’s vision and far-sightedness. The aim of the Denning Law Journal is to provide a forum for the widest discussion of issues arising in the common law world and the Commonwealth, and also to embrace wider global issues of contemporary concern.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"37 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132831275","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}
The January 2019 ruling of the Solicitors Disciplinary Tribunal in Solicitors Regulation Authority v Sharif1 highlighted the care that legal practitioners must take in order to satisfy their anti-money laundering obligations and the serious consequences of any failure to do so. This is the subject of a separate note in this issueof the Denning Law Journal.2 However, the Solicitors Disciplinary Tribunal applied the criminal standard of proof in the case. The question as to whether this is now the appropriate approach is the subject of this note.
{"title":"The Standard of Proof in Disciplinary Proceedings: Solicitors Regulation Authority v Sharif (2019)","authors":"J. Hatchard","doi":"10.5750/DLJ.V31I1.1795","DOIUrl":"https://doi.org/10.5750/DLJ.V31I1.1795","url":null,"abstract":"The January 2019 ruling of the Solicitors Disciplinary Tribunal in Solicitors Regulation Authority v Sharif1 highlighted the care that legal practitioners must take in order to satisfy their anti-money laundering obligations and the serious consequences of any failure to do so. This is the subject of a separate note in this issueof the Denning Law Journal.2 However, the Solicitors Disciplinary Tribunal applied the criminal standard of proof in the case. The question as to whether this is now the appropriate approach is the subject of this note.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121993586","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}
The strict liability standard employed by the Federation Equestre Internationale (FEI) in equine doping cases has been a source of contention among academics, riders and trainers. The FEI Disciplinary Tribunal and the Court of Arbitration for Sport (CAS) have consistently upheld the standard and no alternative has been considered. At the core of the application of the strict liability standard has been the protection of the equine athlete. With the dual aims of the protection of equine athletes and equality between competitors, the FEI imposes a provisional equine suspension when a horse’s sample records an adverse analytical finding. The standard of strict liability and the imposition of provisional suspensions together put the welfare of the horse to the fore. While the intentions of the FEI have been based on this noble premise, ambiguities and inconsistencies have undermined the effectiveness of the Equine Anti-Doping and Controlled Medication Regulations (EADCMRs).
{"title":"The Fédération Equestre Internationale Speaks for the Horse Who Has No Voice and the Court of Arbitration for Sport Listened: Equine Welfare and Anti-Doping in Equestrianism","authors":"L. Donnellan","doi":"10.5750/DLJ.V31I1.1792","DOIUrl":"https://doi.org/10.5750/DLJ.V31I1.1792","url":null,"abstract":"The strict liability standard employed by the Federation Equestre Internationale (FEI) in equine doping cases has been a source of contention among academics, riders and trainers. The FEI Disciplinary Tribunal and the Court of Arbitration for Sport (CAS) have consistently upheld the standard and no alternative has been considered. At the core of the application of the strict liability standard has been the protection of the equine athlete. With the dual aims of the protection of equine athletes and equality between competitors, the FEI imposes a provisional equine suspension when a horse’s sample records an adverse analytical finding. The standard of strict liability and the imposition of provisional suspensions together put the welfare of the horse to the fore. While the intentions of the FEI have been based on this noble premise, ambiguities and inconsistencies have undermined the effectiveness of the Equine Anti-Doping and Controlled Medication Regulations (EADCMRs).","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131361754","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}
The Law Society has recently raised concerns about the UK’s migration system, stating that ‘failures in UK immigration and asylum undermine the rule of law’. Nowhere are those problems more apparent than in the UK’s handling of migrants and asylum seekers in detention centres. A particular recurring issue that speaks to the Law Society’s concern is the absence of a defined time limit for immigration detention. The possibility of indefinite detention has been a source of tension both within British politics, and within UK immigration detention centres. An example of this can be understood with reference to the Yarl’s Wood Immigration Removal Centre (IRC) in Bedfordshire, known for its controversial and rebellious past. In 2015 Nick Hardwick, a former chief prisoner inspector, labelled the Centre a place of ‘national concern’, after examining the mistreatment of vulnerable detainees. Yarl’s Wood’s problematic history, seems to have continued into the present, following a detainee led hunger strike that resulted in ‘renewed concerns’ over health care in detention centres. In addition to protesting the standard of medical treatment received by detainees, the strikers’ underlying focus was on indefinite detention. The Home Office’s response to these strikes was unsympathetic, it sent a letter to detainees suggesting that their continued participation in the strike may in fact result in their removal being accelerated. Although, the hunger strike ended in March 2018 the Home Office’s response to the strike raised some interesting legal and philosophical questions about human rights and resistance in detention centres. In order to grapple with some of these issues, this paper has been separated into two parts. The first part will attempt to contextualise the existing immigration regime and explore how legal disputes might fit within the broader scheme of opposing indefinite detention. It will also briefly examine the legal challenges that may arise from the use of threats of accelerated deportations.
英国律师协会最近提出了对英国移民制度的担忧，称“英国移民和庇护制度的失败破坏了法治”。这些问题在英国对拘留中心的移民和寻求庇护者的处理上表现得最为明显。一个反复出现的问题引起了律师会的关注，那就是对移民拘留没有明确的时间限制。无限期拘留的可能性一直是英国政界和英国移民拘留中心内部紧张局势的根源。这方面的一个例子可以参考贝德福德郡的亚尔伍德移民搬迁中心(IRC)来理解，该中心以其有争议和反叛的过去而闻名。2015年，前首席囚犯检查员尼克·哈德威克(Nick Hardwick)在调查了弱势被拘留者受到的虐待后，将该中心称为“全国关注”的地方。Yarl ' s Wood的问题历史似乎一直延续到现在，在被拘留者领导的绝食抗议导致对拘留中心医疗保健的“重新关注”之后。除了抗议被拘留者接受的医疗标准外，罢工者的根本重点是无限期拘留。内政部对这些罢工的反应是无情的，它给被拘留者发了一封信，暗示他们继续参加罢工实际上可能会加速他们的遣返。尽管绝食抗议于2018年3月结束，但内政部对罢工的回应引发了一些关于拘留中心人权和抵抗的有趣的法律和哲学问题。为了解决其中的一些问题，本文分为两个部分。第一部分将尝试将现有的移民制度置于背景下，并探讨法律纠纷如何适应反对无限期拘留的更广泛计划。它还将简要审查使用加速驱逐威胁可能产生的法律挑战。
{"title":"“Escaping the Sunken Place: indefinite detention, asylum seekers, and resistance in Yarl’s Wood IRC”","authors":"Aidan Seymour-Butler","doi":"10.5750/DLJ.V31I1.1674","DOIUrl":"https://doi.org/10.5750/DLJ.V31I1.1674","url":null,"abstract":"The Law Society has recently raised concerns about the UK’s migration system, stating that ‘failures in UK immigration and asylum undermine the rule of law’. Nowhere are those problems more apparent than in the UK’s handling of migrants and asylum seekers in detention centres. A particular recurring issue that speaks to the Law Society’s concern is the absence of a defined time limit for immigration detention. The possibility of indefinite detention has been a source of tension both within British politics, and within UK immigration detention centres. An example of this can be understood with reference to the Yarl’s Wood Immigration Removal Centre (IRC) in Bedfordshire, known for its controversial and rebellious past. In 2015 Nick Hardwick, a former chief prisoner inspector, labelled the Centre a place of ‘national concern’, after examining the mistreatment of vulnerable detainees. Yarl’s Wood’s problematic history, seems to have continued into the present, following a detainee led hunger strike that resulted in ‘renewed concerns’ over health care in detention centres. In addition to protesting the standard of medical treatment received by detainees, the strikers’ underlying focus was on indefinite detention. The Home Office’s response to these strikes was unsympathetic, it sent a letter to detainees suggesting that their continued participation in the strike may in fact result in their removal being accelerated. Although, the hunger strike ended in March 2018 the Home Office’s response to the strike raised some interesting legal and philosophical questions about human rights and resistance in detention centres. In order to grapple with some of these issues, this paper has been separated into two parts. The first part will attempt to contextualise the existing immigration regime and explore how legal disputes might fit within the broader scheme of opposing indefinite detention. It will also briefly examine the legal challenges that may arise from the use of threats of accelerated deportations.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128275048","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}
2018 marks the twentieth anniversary of the Latimer House ‘process’ which commenced with the drafting of the Latimer House Guidelines for the Commonwealth on Good Practice Governing Relations between the Executive, Parliament and the Judiciary. Since then the Latimer House Guidelines have been transformed into the Commonwealth Principles (Latimer House) on the Relationship between the Three Branches of Government which have been endorsed by Commonwealth Heads of Government on several occasions. This article assesses the role of the Latimer House process over the last two decades against the background of the Commonwealth’s evolving commitments to good governance and the rule of law. In Part 1 explores the role of the Commonwealth in supporting good governance and the rule of law whilst Part 2 considers and evaluates the Latimer House process itself. Part 3 reviews the development of the Commonwealth Principles in practice whilst in Part 4 some specific implementation issues concerning the Judiciary are discussed. Part 5 considers the future development of the Commonwealth Principles whilst Part 6 provides a conclusion and overview.
{"title":"THE COMMONWEALTH PRINCIPLES (LATIMER HOUSE) ON THE RELATIONSHIP BETWEEN THE THREE BRANCHES OF GOVERNMENT: TWENTY YEARS ON","authors":"P. Slinn, K. Brewer","doi":"10.5750/DLJ.V30I2.1700","DOIUrl":"https://doi.org/10.5750/DLJ.V30I2.1700","url":null,"abstract":"2018 marks the twentieth anniversary of the Latimer House ‘process’ which commenced with the drafting of the Latimer House Guidelines for the Commonwealth on Good Practice Governing Relations between the Executive, Parliament and the Judiciary. Since then the Latimer House Guidelines have been transformed into the Commonwealth Principles (Latimer House) on the Relationship between the Three Branches of Government which have been endorsed by Commonwealth Heads of Government on several occasions. This article assesses the role of the Latimer House process over the last two decades against the background of the Commonwealth’s evolving commitments to good governance and the rule of law. In Part 1 explores the role of the Commonwealth in supporting good governance and the rule of law whilst Part 2 considers and evaluates the Latimer House process itself. Part 3 reviews the development of the Commonwealth Principles in practice whilst in Part 4 some specific implementation issues concerning the Judiciary are discussed. Part 5 considers the future development of the Commonwealth Principles whilst Part 6 provides a conclusion and overview.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133037332","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}
Until 2017, the most recent disqualification of a member of the Australian Parliament under section 44(i) of the Australian Constitution (‘Constitution’) was Senator Heather Hill in 1998. Remarkably, since 2017, almost twenty years after Sue v Hill, ten parliamentarians have resigned or been disqualified, triggering a series of by-elections. The catalyst for this flurry of activity occurred in July 2017, when Greens senator Scott Ludlam announced that at the time of his election, he was a citizen of New Zealand and was incapable of sitting in parliament under section 44(i). He was the first of ten senators and members of parliament to be referred to the High Court of Australia in the cases of Re Canavan and later Re Gallagher on questions of eligibility under section 44(i). Eight of these parliamentarians were disqualified, sparking national debate around parliamentary representation and membership within the Australian community. Since Re Canavan and Re Gallagher and indeed well before those cases, the section had and has continued to attract popular, journalistic, parliamentary and academic criticism. Consequently, there have been calls for a referendum on section 44(i) for a significant period of time. While the authors support this call, this article reflects on the cases and develops a different interpretive approach to section 44(i) which if argued by the parties and adopted by the Court, would have rendered a referendum unnecessary. By drawing on the earlier section 41 of the Australian Constitution case of R v Pearson; Ex parte Sipka and its majority judgment, as well as drawing upon the minority judgment of Murphy J and a more recent feminist judgment written by Kim Rubenstein, one of the authors of this article, we argue that the principles of representative democracy and the sovereignty of the people could have acted as a frame to read down section 44(i). Had this approach been adopted, the Court could have effectively placed the decision around disqualification of parliamentarians around the issue of dual citizenship, back into the hands of the elected representatives
截至2017年，根据《澳大利亚宪法》第44(i)条，最近一次被取消澳大利亚议会议员资格的是1998年的参议员希瑟·希尔(Heather Hill)。值得注意的是，自2017年以来，在Sue v Hill案发生近20年后，已有10名议员辞职或被取消资格，引发了一系列补选。这一系列活动的催化剂发生在2017年7月，当时绿党参议员斯科特·拉德兰(Scott Ludlam)宣布，在他当选时，他是新西兰公民，根据第44(i)条，他不能在议会任职。在Re Canavan和后来的Re Gallagher根据第44(i)条的资格问题的案件中，他是被提交澳大利亚高等法院的十位参议员和议员中的第一位。这些议员中有8人被取消资格，在澳大利亚社会内部引发了关于议会代表权和成员资格的全国性辩论。自从Re Canavan和Re Gallagher，甚至在这些案件之前，该部分一直并继续吸引大众，新闻，议会和学术界的批评。因此，很长一段时间以来一直有人呼吁就第44(i)款进行全民投票。虽然作者支持这一呼吁，但该条反映了这些案件，并对第44(i)条提出了一种不同的解释方法，如果当事各方对此进行辩论并由法院通过，就没有必要进行全民投票。借鉴澳大利亚宪法R v Pearson案的第41条;Sipka案及其多数判决，以及借鉴Murphy J的少数判决和本文作者之一Kim Rubenstein最近撰写的女权主义判决，我们认为代议制民主和人民主权的原则可以作为一个框架来解读第44(i)条。如果采取了这种做法，法院就可以有效地把关于取消议员资格的决定，关于双重国籍问题的决定，重新交到当选代表的手中
{"title":"READING DOWN SECTION 44(i) OF THE AUSTRALIAN CONSTITUTION AS A METHOD OF AFFIRMING AUSTRALIAN CITIZENSHIP IN THE 21st CENTURY","authors":"Noa Bloch, Kim Rubenstein","doi":"10.5750/DLJ.V30I2.1699","DOIUrl":"https://doi.org/10.5750/DLJ.V30I2.1699","url":null,"abstract":"Until 2017, the most recent disqualification of a member of the Australian Parliament under section 44(i) of the Australian Constitution (‘Constitution’) was Senator Heather Hill in 1998. Remarkably, since 2017, almost twenty years after Sue v Hill, ten parliamentarians have resigned or been disqualified, triggering a series of by-elections. The catalyst for this flurry of activity occurred in July 2017, when Greens senator Scott Ludlam announced that at the time of his election, he was a citizen of New Zealand and was incapable of sitting in parliament under section 44(i). He was the first of ten senators and members of parliament to be referred to the High Court of Australia in the cases of Re Canavan and later Re Gallagher on questions of eligibility under section 44(i). Eight of these parliamentarians were disqualified, sparking national debate around parliamentary representation and membership within the Australian community. Since Re Canavan and Re Gallagher and indeed well before those cases, the section had and has continued to attract popular, journalistic, parliamentary and academic criticism. Consequently, there have been calls for a referendum on section 44(i) for a significant period of time. While the authors support this call, this article reflects on the cases and develops a different interpretive approach to section 44(i) which if argued by the parties and adopted by the Court, would have rendered a referendum unnecessary. By drawing on the earlier section 41 of the Australian Constitution case of R v Pearson; Ex parte Sipka and its majority judgment, as well as drawing upon the minority judgment of Murphy J and a more recent feminist judgment written by Kim Rubenstein, one of the authors of this article, we argue that the principles of representative democracy and the sovereignty of the people could have acted as a frame to read down section 44(i). Had this approach been adopted, the Court could have effectively placed the decision around disqualification of parliamentarians around the issue of dual citizenship, back into the hands of the elected representatives","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"281 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122941688","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}
Constitutions come in all shapes and sizes. Some provide for a federal or confederal structure whilst others adopt a unitary model. Internal ethnic, religious or other factors may determine the structure and distribution of constitutional powers, issues that are often of less significance in a constitution written for a more homogenous population
{"title":"IN PRAISE OF COMPARATIVE CONSTITUTIONAL LAW: LESSONS FROM THE COMMONWEALTH","authors":"J. Hatchard, J. Scutt","doi":"10.5750/DLJ.V30I2.1696","DOIUrl":"https://doi.org/10.5750/DLJ.V30I2.1696","url":null,"abstract":"Constitutions come in all shapes and sizes. Some provide for a federal or confederal structure whilst others adopt a unitary model. Internal ethnic, religious or other factors may determine the structure and distribution of constitutional powers, issues that are often of less significance in a constitution written for a more homogenous population","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122006434","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}
There was a time when most Australian drivers would encounter a particular kind of defaced road sign in their travels. Speeding along the National Highway near the Broome turn-off in Western Australia or dodging kangaroos on the back roads of western Queensland around St George, drivers could see a sign urging them to “FORM ONE LANE” transmogrified by some local wit to read “FORM ONE pLANEt”. Graffiti on signs in a vain attempt to make them say something else can be mildly amusing but completely ineffective. However, while it is dangerous (and illegal) to interfere with road signs, sometimes tinkering with an original symbol can achieve something worthwhile, and substantial.
曾经有一段时间，大多数澳大利亚司机在旅行中都会遇到一种特殊的污损路标。在西澳大利亚州布鲁姆(Broome)岔道附近的国道上超速行驶，或者在西昆士兰州圣乔治(St George)附近的小路上躲避袋鼠时，司机们会看到一块牌子，上面写着“形成一个车道”(FORM ONE LANE)，被当地一些机智的人改成了“形成一个星球”(FORM ONE pLANEt)。在标志牌上涂鸦，徒劳地试图让他们说些别的东西，可能会有点有趣，但完全没有效果。然而，虽然干扰路标是危险的(也是非法的)，但有时对原始标志进行修修补补可以实现一些有价值的、实质性的东西。
{"title":"ROAD RULES FOR OUR COUNTRY - AUSTRALIA’S CONSTITUTION AND AUSTRALIA’S FIRST PEOPLES","authors":"G. Perrett, P. Dodson","doi":"10.5750/dlj.v30i2.1702","DOIUrl":"https://doi.org/10.5750/dlj.v30i2.1702","url":null,"abstract":"There was a time when most Australian drivers would encounter a particular kind of defaced road sign in their travels. Speeding along the National Highway near the Broome turn-off in Western Australia or dodging kangaroos on the back roads of western Queensland around St George, drivers could see a sign urging them to “FORM ONE LANE” transmogrified by some local wit to read “FORM ONE pLANEt”. Graffiti on signs in a vain attempt to make them say something else can be mildly amusing but completely ineffective. However, while it is dangerous (and illegal) to interfere with road signs, sometimes tinkering with an original symbol can achieve something worthwhile, and substantial. ","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115098857","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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