Author(s): Jelena Gligorijevic
To demonstrate that any common law system can adequately and legitimately protect informational privacy through a private law action influenced by public law, this paper argues that: tort law can accommodate privacy protection, and the English action is appropriately labelled a ‘tort’; the English tort does not depend upon the Human Rights Act 1998 (HRA), allowing other common law jurisdictions to choose to adopt aspects of that tort; and the public law tool of proportionality can determine privacy tort outcomes in a way that ensures credible legal protection of the fundamental right to privacy in the private sphere, without unjustifiably encroaching upon other rights.
Research theme: Private Law
Author(s): Elizabeth Curran
This research and evaluation report undertaken by Dr Liz Curran of the Australian National University (pro bono) looks at research over the two years of the life of a family violence project (with base line data collected in a First Phase Report in November 217) examining a Secondary Consultation (SC) service integrated with Training and Outreach program as well as capacity for strategic advocacy.
The Consumer Action Law Centre project (with part funding from the Victorian Department of Justice & Regulation) aims to overcome barriers for people experiencing family violence identified in previous studies. The research findings (detailed in this report) are that legal assistance services, such as this one of the Consumer Action Law Centre, working with trusted community professionals (to whom people experiencing family violence are likely to turn) if done in a holistic, integrated and seamless, respectful way can enable credit & debt legal issues to be addressed in a timely, creative and effective way. It does this by breaking down barriers that exist to those needing legal help. The report provides some universal insights into the plight and impacts of family violence and ways for effective service delivery without ignoring the challenges for both individuals and a variety of services in providing critical support for victim/survivors of family violence and their family.
Author(s): Greg Weeks
The office of the ombudsman is much misunderstood. Is it better viewed as part of the executive or the judiciary? Is it a fragile institution, unprotected with security of tenure? Is it a ‘toothless tiger’? The one constant in the face of such inquiries is that ombudsmen don’t seem to care, or at least carry on with great effectiveness as though they don’t. I would argue in any case that such queries are beside the point and that the one thing that must be understood about the ombudsman is that it is an office with a particular purpose.
Research theme: Administrative Law
Author(s): Cassandra Steer
Despite the fact that outer space may only be used for peaceful purposes under the 1967 Outer Space Treaty, most technologically advanced States today have a high military dependence on space. In other words, space is “militarized,” but not yet “weaponized.” At the same time, a space arms race has been underway for some time, and appears to be accelerating in recent years. In 2019, India joined what it proudly dubbed the “elite club” of States with the capability to launch direct ascent anti-satellite weapons, replicating earlier tests by China, Russia and the U.S., all of whom have also demonstrated more covert forms of anti-satellite or “counterspace” technologies. The establishment of the U.S. Space Force at the end of 2019 and the response of allies and adversaries alike is emblematic of the escalatory cycle that appears to be in place. Today nearly every country is dependent in some way on space-enabled capabilities, many of which are supplied not by States but by commercial entities. This report outlines the historical and legal context, and argues for increased cooperation and transparency to improve the stability and security of outer space for national and international security.
Author(s): Damian Clifford
This chapter explores the alignment of the EU data protection and consumer protection policy agendas through a discussion of the reference to the Unfair Contract Terms Directive in Recital 42 of the General Data Protection Regulation. This non-binding provision refers to the need to assess the (un)fairness of pre-formulated declarations of data subject consent to personal data processing. Through this lens the introduction of the Directive on Contracts for the Supply of Digital Content and its relationship to the data protection and privacy framework is also explored. The protections provided by both the data protection and privacy and consumer protection frameworks aim to bolster the decision-making capacity of individuals. However, as this chapter outlines, there are potential conflicts when the respective frameworks are assessed together.
Research theme: Law and Technology
Author(s): Jeremy Farrall
This article examines the potential impact of the populist challenge to International Law on the United Nations Security Council. The Security Council is often criticized as ineffective, unprincipled, and an anachronistic mechanism that reflects a power balance from the past, rather than the realities of today. The article argues that the rise of populism is likely to further erode the Security Council’s legitimacy and efficacy. At the same time, however, it emphasizes the need for greater nuance in the way that both the phenomenon of populism, as well as the relationship between national and international concerns, are understood and framed. Taking these complexities into account, the Article explores three scenarios that could result from an escalating crisis of Security Council legitimacy. The first involves reform and renewal. The second comprises retreat and realignment. The third encompasses reimagining the international peace and security architecture and creating something new.
Research theme: International Law
Populism, Backlash and the Ongoing Use of the World Trade Organization Dispute Settlement System: State Responses to the Appellate Body Crisis
Author(s): Imogen Saunders
Since 2017, World Trade Organization (‘WTO’) Member States have been unable to reach a consensus on Appellate Body (‘AB’) appointments and reappointments. The United States is spearheading a populist backlash against procedural and substantive aspects of the dispute settlement system of the WTO. As a consequence of this, the AB is now facing an unprecedented crisis. The jewel in the crown of the WTO dispute settlement system will be missing: yet countries are still bringing complaints. This paper considers US actions through the framing of populism and backlash, and assesses responses from other countries.
Author(s): Jolyon Ford
This essay explores some of the parameters and merits of a putative argument that the announcement of June 19, 2018 that the United States would withdraw from the United Nations Human Rights Council might most properly be understood as but one manifestation of a wider political backlash within the US (and indeed other Western democracies) against the multilateral human rights system epitomized by the Council. There are two prongs to this argument. First, populist-nationalist political sentiment at home simultaneously fuels and is fanned by strident high-profile diplomatic critiques (or even rejections) of global bodies such as the Council. Second, the nature and force of this backlash constitutes a systemic threat to the future of the post-1945 rules-based international order, especially since it comes mostly from the superpower whose values-based rhetoric and leadership has perhaps done most to advance the global human rights agenda in the modern era.
Author(s): Ron Levy
If referendums are not carefully designed and conducted so as to promote moderation, they may undermine deliberation and hence undermine one of the necessary or principal conditions of their own success. Naturally, there is no suggestion here chat referendums can solve all the ills that deeply divided societies face or that democracy can be reduced to referendums. Yet, if skilfully and sensitively designed, they can play a crucial role, so long, that is, as ordinary people are made to feel that their views count for something in the process.
The Essendon Football Club Supplements Saga: Exploring Natural Justice for Team Sanctions within Anti-Doping Regulations
10 October 2016, the Essendon Football Club (EFC) performance enhancing drugs regulatory saga concluded with the Swiss Federal Tribunal (SFT) deciding not to ‘entertain’ Essendon’s appeal of the Court of Arbitration of Sport (CAS)’s guilty finding, thus supporting the World Anti-Doping Authority (WADA). The EFC CAS appeal is a unique case as it is the first time a team (34 players from the one team) have been subject to CAS’s jurisdiction for allegations of doping contrary to the World Anti-Doping Code. One significant concern throughout this regulatory sage was that the team-based nature of the infraction denied individual players natural justice. Central to these concerns is the fact that the players were advised by EFC to take part in the program and that its chief architect, sports scientist Stephen Dank, never gave sworn evidence that was tested in cross-examination. This column investigates whether there are important lessons for team-based anti-doping infractions from the EFC saga.
The relationship between corporate law and corporate practice is complex. So too is the relationship between the different types of corporate law rules — from primary and delegated legislation, through listing rules and ASIC orders to corporate constitutions. Corporate lawyers tend to respond to this complexity and diversity by implicit understanding than by conceptual framework. This article offers one way of conceptualising the complexity of corporate law rules and their relationship to corporate practice. Drawing on Boaventura de Sousa Santos’ influential 1987 article ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, the article looks to cartography as an unexpected source of ideas to assist in understanding the shape of modern corporate law rules.
Author(s): Colin James
Vicarious or secondary trauma experience has always been part of legal practice although many do not acknowledge the risk it can have on the mental health, well-being and performance of legal professionals. The listening to, observing and then detailing of traumatic events for the purposes of legal process in some cases may harm lawyers who need to work closely with clients, victims and witnesses. This article reviews the research on trauma in many areas of professional human services that could inform and improve our understanding of legal practice. It examines the discursive history of trauma and recent studies on lawyer well-being, before discussing the controversies about recognising vicarious trauma and the stigma against mental health concerns in the legal profession. The article concludes by reviewing options to assist law firms in considering trauma-informed policy, practices and supervision strategies and to help individual lawyers recognise the value of self-care.
This article examines a series of paradoxes that have rendered the international legal order’s mechanisms for collective action powerless precisely when they are most needed to fight COVID-19. The “patriotism paradox” is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The “border paradox” is that securing domestic populations by excluding non-citizens, in the absence of accompanying regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The “equality paradox” is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities.
Author(s): Jolyon Ford
This article engages with the question of whether we can identify a recent populist political ‘backlash’ within some Western democracies against the institutions, instruments and even the ideas of the multilateral (United Nations and treaty-based) human rights system. An associated question concerns what the implications of any such phenomenon might be for the universalist human rights system (or at least Australia’s participation therein), and perhaps the implications for the wider global legal order of which the human rights project has, for decades now, been such an important part. A second question-bundle is whether we can discern signs recently that Australia may be one of those ‘backlash’ states, and what systemic implications this may have for Australia’s oft-repeated fidelity to, and reliance upon, the international rules-based order. Sitting above or behind these questions is the broader issue of whether the concept of ‘backlash’ is useful at all in explaining or analysing recent developments, and/or what modifications or qualifiers it might need. This article attempts to address these questions, focussing first on exploring ways to approach, unpack refine or re-frame the ‘backlash’ concept. It then takes the resulting frame(s) to provide a general overview of recent Australian practice and rhetoric. This is so as to advance a useful characterisation of Australia’s conduct, even if it does not in a ‘Yes/No sense’ meet Sunstein’s definition of systemic-level ‘backlash’ intended to reject a legal order and remove its legal force.
This article considers the recent ‘Backlash’ against global norms and institutions fuelled by various contemporary political developments within and between states. Understanding the shape, significance and drivers of this phenomenon better is a pre-requisite to developing and analysing possible responses by Australia and other states. The recent rise of populism and ‘illiberal democracy’ especially within major Western democracies has challenged the longstanding and widespread commitment of those states to the rules-based order. These phenomena have also eroded the traditional global leadership, in multilateral forums, of key powers including UN permanent members the United States and the United Kingdom. The populations of these and other states have responded to perceptions of economic and political disempowerment by pressuring political representatives to focus their energies domestically. In order both to appeal and respond to domestic political forces, leaders in these states have sought to target or sometimes scapegoat the international institutions that have hitherto been so useful to their foreign policy agenda. This article examines the consequences of understanding the current populist moment as part of a Backlash against global law and institutions and the ramifications of the Backlash frame for international peace and security. It also considers the implications of the Backlash frame for the international human rights system, the impact of the turn inward for global trade and finance and the Backlash against environmental norms.
Author(s): Imogen Saunders
The debate about the extent of the interaction between WTO law and public international law has existed for as long as the WTO itself. While WTO case law confirms a willingness of panels and the Appellate Body to embrace interpretative rules of general international law, engagement with non-trade obligations under non-WTO treaties has been more patchy. Nonetheless, the reality of competing international legal obligations on States will continue to grow. Could a deliberate shift to consider non-WTO obligations in WTO disputes help maintain the relevance of the institution?
Author(s): Will Bateman
Public Finance and Parliamentary Constitutionalism analyses constitutionalism and public finance (tax, expenditure, audit, sovereign borrowing and monetary finance) in Anglophone parliamentary systems of government. The book surveys the history of public finance law in the UK, its export throughout the British Empire, and its entrenchment in Commonwealth constitutions. It explains how modern constitutionalism was shaped by the financial impact of warfare, welfare-state programs and the growth of central banking. It then provides a case study analysis of the impact of economic condition on governments' financial behaviour, focusing on the UK's and Australia's responses to the financial crisis, and the judiciary's position vis-à-vis the state's financial powers. Throughout, it questions orthodox accounts of financial constitutionalism (particularly the views of A. V. Dicey) and the democratic legitimacy of public finance. Currently ignored aspects of government behaviour are analysed in-depth, particularly the constitutional role of central banks and sovereign debt markets.
> Provides the first constitutional analysis of public finance law and practice in UK and Commonwealth jurisdictions
> Provides an historical treatment of legal and constitutional dimensions of public finance in British and Commonwealth jurisdictions
> Accessibly explains how government, law and economic conditions interact before, during and after moments of economic crisis, using the UK and Australia as examples
Author(s): Cassandra Steer
Space law and space politics are determined by the same big players as terrestrial geopolitics, and therefore in asking how to govern space, we have to take the current realities of international relations and international law into account. How are new entrants interacting with the international space law regime inherited from the Cold War, and what kinds of new governance structures might we need to deal with the increasing number and kinds of participants emerging in the space sector? I take a critical perspective, drawing on feminist legal theory and Third World Perspectives on International Law (TWAIL) to pose further questions: who is exercising power over the development of new legal and governance norms in space and who is excluded from this? I argue that, because we are all so dependent on space for our contemporary existence, 21st century space governance needs to take into account more than the interests of the biggest players.
Nucoal Resources Ltd v NSW: the Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia
The Climate Council recently detailed the adverse health impacts of coal on Australian citizens and their environment. Such reports confirm established evidence that coal mining not only releases atmospheric toxins but destroys prime farming land and rivers. This column examines how the revocation of coal mining leases, after proven corruption by disgraced New South Wales politicians was upheld by the High Court (NuCoal Resources Ltd v New South Wales  HCA 13) was challenged using mechanisms in the Australia-US Free Trade Agreement and potentially the Trans-Pacific Partnership (TPP) Agreement. It is likely that foreign investors in the Australian coal mining and fracking industries will circumvent imprecise exceptions and use investor-state dispute settlement (ISDS) clauses in the TPP to initiate claims for damages before panels of conflicted investment arbitrators, alleging appropriation of their investments as a result of Australian legislation or policy taken against the coal industry on public health grounds. This issue is explored through analysis drawn from an extant investor-state dispute involving the mining industry in North America.
Note: This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as ‘TA Faunce and S Parikh, NuCoal Resources Ltd v New South Wales: The Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia, 2016, 23, JLM, 801’.
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Author(s): Greg Weeks
The privative clause is dead – or so we are told. Nonetheless, it remains a topic of conversation and judicial attention in both Australia and England, albeit for somewhat different reasons. The Australian approach to privative clauses is substantially coloured by the relevance attached to the concept of jurisdictional error and is therefore distinctly constitutional in its outlook. The English courts have long ago dismissed the role of jurisdictional error and, although they continue to rely on the precedent of Anisminic Ltd v Foreign Compensation Commission  2 AC 147, do so while rejecting the reasoning which informs the use of that case in Australia. This article considers the approaches taken in both jurisdictions and attempts to set out the continuing relevance of the privative clause in Australia.
Research theme: Administrative Law