Author(s): Desmond Manderson
The nation is not a natural construction. It is mediated through representations and particularly through representations with a sensory component. Images therefore are primary means through which a collection identity is established. They serve to constitute myths of belonging; to distinguish friend from enemy, as Schmitt put it. They tell stories; they create models and examples that frame our social existence. But they also generate the icons and symbols whose repetition and familiarity - flags, monuments, even colour combinations - etch habits of feeling and mental associations deep into our psyche.
Research theme: Legal Theory
Author(s): Ron Levy
Referendums are now common in ‘conflict societies’ — societies where widespread armed engagement recently occurred, is occurring or is liable to occur. If well designed, a referendum might improve the prospects of achieving a conflict settlement. The referendum’s relative democratic legitimacy may also help to ensure against subsequent breach, once a settlement is reached. However, in practice the utility of referendums for conflict settlement has been inconsistent. Some past referendums faltered (e.g. a ‘no’ vote delayed settlement) as a result of neglect of careful institutional design. In particular, a number of past referendums proceeded as simple majoritarian exercises with little in the way of support for voters’ deliberation about issues at stake. By contrast, a handful of authors have described ‘Deliberative Referendums’ purpose-designed to generate more rational and informed referendum campaigns. Nearly all past work on Deliberative Referendums has focused on peaceful societies. Building on this past work, the present article introduces the term ‘Shotgun Referendum’ to refer to a Deliberative Referendum held under conditions of ongoing or apprehended violence. The article explains why such a referendum might incrementally improve the prospects for conflict settlement. It proposes the use of deliberative design features — some novel, others well known — and places these within a distinctive frame drawing on constitutional and deliberative theory. The article thus serves as a scoping study of the aspirations and boundaries of Shotgun Referendums. This can offer more careful direction when, as seems inevitable, in future more conflict societies hold referendums.
Author(s): Greg Weeks
The idea of introducing a monetary remedy for harm arising out of the misdirected exercise of public power has waxed and waned in popularity in Australia over the years. Though few would dispute the intuitive appeal of the sentiment that ‘wrongs should not go unremedied’, the question of why this is so and how harm arising from maladministration could, or should, be repaired remains unresolved. This article canvasses a number of the potential justifications for the creation of such a remedy, before noting the various avenues the Australian courts have considered, and closed down, which might otherwise have led in that direction. These rejected opportunities have included the expansion of existing tort actions (eg misfeasance in public office and breach of statutory duty), the creation of new causes of action in tort (eg the Beaudesert tort and constitutional torts), and the interpretation of statutory remedial powers (eg the power to ‘do justice between the parties’ pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth)). Whatever the virtue of a remedy on this front, it is clear that it will need to be a matter of legislative, rather than judicial, intervention.
Research theme: Administrative Law
Equal Consideration and Informed Imagining: Recognising and Responding to the Lived Experiences of Abused Women Who Kill
Author(s): Anthony Hopkins
Equality is a fundamental concern of human existence. Expressed in the principle of equality before the law it requires that those who come before the law are entitled to be treated as being of equal value and to be given ‘equal consideration’. In circumstances where those who come before the law are marked by their differences, giving of equal consideration requires that difference be understood and taken into account. The identification of difference does not of itself determine the question of whether different treatment is warranted in the interests of equality. However, this article argues that understanding difference is a precondition for the promotion of true equality and that, in pursuit of understanding difference, it is necessary for us to acknowledge the limitations of our capacity to understand the lived experience of ‘others’ and to actively work to engage with these experiences. In the context of the criminal justice system, we over abused women who kill as illustrative of this need, focusing upon the availability and operation of self-defence in England/Wales, Queensland and Victoria. In doing so, we consider the capacity of the law, legal process and legal actors to engage with the lived experiences of these women, highlighting the im portance of ‘informed imagining’.
Once unseen, women are now visible in increasing proportions on the bench in common law courts, although this reality has generally not percolated into fictional worlds, where ‘the judge’ is invariably male. Fiona, cast by Ian McEwan as the protagonist, in The Children Act, is a notable exception. In the novel, McEwan directs our gaze beyond the traditional separation of judicial identity into public/private (visible/invisible) facets of life and raises questions regarding the impact of life on law, and law on life. This article draws on McEwan’s work to illuminate a study of how judicial swearing-in ceremonies tell the stories of Australian women judges. At first glance, this may seem an unusual pairing: The Children Act is an international best-selling work of fiction whereas the official records of court ceremonial sittings are a somewhat obscure body of work largely overlooked by scholars. However, the speeches made in welcome in open court on these occasions by members of the legal profession and by the new judge in reply, offer glimpses of the attributes of women judges not discernible in formal judgments. These ‘minor jurisprudences’ challenge the familiar gendered stereotypes found in the sovereign body of law.
Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Law, Governance and Development, Legal Education, Legal History and Ethnology, Private Law, The Legal Profession
Author(s): Imogen Saunders
Artificially created islands are a contemporary reality, created and used for military and non-military purposes. Analysis of such islands has largely been limited to their status under United Nations Convention on the Law of the Sea (UNCLOS) regime. Their position under general international law, however, remains unclear. In particular, the question of whether artificial islands can constitute sovereign territory remains unanswered. This article analyses the concept of territory in international law in the context of artificial islands, arguing that both the doctrine of territory and the strictures of UNCLOS do not prevent artificial islands as constituting territory, capable of sovereign appropriation: albeit territory not generating a territorial sea. Indeed, understanding artificial islands as potentially constituting territory allows for a more comprehensive positioning of such islands in regards to other general international law doctrines including the unlawful acquisition of territory.
Author(s): Jolyon Ford
Australia proposed a Modern Slavery Act based on the UK's 2015 model, requiring larger firms to report annually on steps taken to address the risk of modern slavery in their operations and supply chains. This working paper has two main arguments. First, the approach to defining (or not) ‘supply chain’ is not a mere technical drafting issue, but instead can be seen as going to the overall purpose of this regulation and as a metaphor for more general design philosophies or approaches in this sphere. Second, an Australian statute should refrain from any attempt at a statutory definition of ‘supply chains’ or any definition in ancillary regulations; however, authorities should offer reporting entities far more extensive policy guidance than the UK model has done. Aside from the generic drafting difficulty of finding a stable, commercially sensible definition, the paper explains at least three reasons why the statutory scheme should not seek to define ‘supply chains.’
Author(s): James Stellios
The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched Bill of Rights. Yet, Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.
Author(s): Sally Wheeler
his article examines contract as a focal point of modern society both in terms of the way that it is used to classify relationships and the way in which it is used to order relationships. I look at how contractual structures and relationships across a variety of speciman scenarios (private sector supply contracts and public service delivery contracts) can be explained using the work of Ian Macneil. He gives us an account of how the socialising contexts of contract relationships evolve and change. Smart contracts offer a new way of constructing relationships. Their advocates suggest that they have the potential to revolutionise the practice of exchange. I consider smart contracts from Macneil’s perspective and work through whether his account of relationality will be able to encompass this new practise.
Research theme: Law and Technology
Editor(s): Desmond Manderson
In Law and the Visual, leading legal theorists, art historians, and critics come together to present new work examining the intersection between legal and visual discourses. Proceeding chronologically, the volume offers leading analyses of the juncture between legal and visual culture as witnessed from the fifteenth to the twenty-first centuries. Editor Desmond Manderson provides a contextual introduction that draws out and articulates three central themes: visual representations of the law, visual technologies in the law, and aesthetic critiques of law. A ground breaking contribution to an increasingly vibrant field of inquiry, Law and the Visual will inform the debate on the relationship between legal and visual culture for years to come.
Editor(s): Ron Levy, Hoi Kong, McGill University, Montréal, Graeme Orr, University of Queensland, Jeff King, University College London
Deliberative democratic theory emphasises the importance of informed and reflective discussion and persuasion in political decision-making. The theory has important implications for constitutionalism - and vice versa - as constitutional laws increasingly shape and constrain political decisions. The full range of these implications has not been explored in the political and constitutional literatures to date. This unique Handbook establishes the parameters of the field of deliberative constitutionalism, which bridges deliberative democracy with constitutional theory and practice. Drawing on contributions from world-leading authors, this volume will serve as the international reference point on deliberation as a foundational value in constitutional law, and will be an indispensable resource for scholars, students and practitioners interested in the vital and complex links between democratic deliberation and constitutionalism.
Research theme: Constitutional Law and Theory
A recent Senate Inquiry investigated the Prostheses List (PL) which has been an integral part of the private health care system since its introduction in 1985. The PL sets the price of various prostheses products available for private health insurance patients. In recent years, however, the PL has come under scrutiny due to the inflated prices of prostheses, lack of transparency from the list's creators and regulators, and increased premiums. This column critically analyses the recent Senate report, particularly as to whether it appropriately addressed the various concerns and issues raised in submissions and terms of reference of the inquiry and what ongoing role the PL should have in the Australian Healthcare System.
On 28 March 2018 the Australian Senate Community Affairs References Committee issued its final report on transvaginal mesh devices. It found these devices have caused unnecessary physical and emotional pain and suffering to thousands of women who were not told by their doctors of the objective material risks associated with their use. The Senate Committee concurred with the Public Health Association of Australia's (PHAA) description of the complications resulting from transvaginal mesh implants as constituting a serious public health issue requiring a response at both an individual and at a population level, including counselling, public education, clinical interventions and long-lasting protective mechanisms. The committee’s inquiry highlighted significant shortcomings in Australia's reporting systems for medical devices, with flow-on consequences for the health system's ability to respond to in a timely and effective way to related concerns. Amongst other recommendations, the Senate Committee backed the establishment on a cost recovery basis of a national registry of high risk implantable devices linked to a system of mandatory reporting of adverse events.
On 16 June 2016 the Biosecurity Act 2015 (Cth) came into force. This legislation replaced the Quarantine Act 1908 (Cth) which had regulated biosecurity in Australia for over a century. Impetus for the change arose from a number of reviews (the Nairn Report and later Beale Review) into Australia’s biosecurity system. These identified systemic flaws that were causing the country to be vulnerable to incursions of foreign pests and diseases through the administration of an archaic regulatory regime. The Biosecurity Act 2015 (Cth) includes new terminology, increased powers for the regulator and additional requirements for industry. The responsible agency, the Department of Agriculture and Water Resources (DAWR), has stated that the new biosecurity laws are designed to be user-friendly, to be flexible and responsive to changes in technology and future challenges, to remove cluttered and confusing sections of the Quarantine Act 1908 (Cth) and to achieve the difficult balance of making biosecurity regulation risk-based and equipping the regulator with strong enforcement powers whilst while also being economically prudent and supportive of increasing Australian trade and market access. This article column analyses such claims, including the short, and long term implications of providing biosecurity officers with two sets of authorising legislative powers and sharing the responsibility of biosecurity emergencies with the Department of Health.
Corporatisation of Community Pharmacy and the Constitutional Prohibition of Civil Conscription for Medical Service Providers
This article examines recommendations from the Harper Competition Review recommending the opening up to corporate ownership of the community pharmacy sector in Australia. After studying the outcomes of similar proposals in other nations it examines whether s51 xxiiiA of the Australian Constitution provides a prohibition against such a reduction of the small business option for those pharmacists wishing to develop a pharmacy business in Australia. An analysis of the services provided by community pharmacists finds that services such as the provision of advice on the safe and efficacious use of medicine, the prescribing and administering of vaccinations, the treatment of minor wounds and ailments, the provision of pharmacist-only medicines, diabetes education form part of the core function of community pharmacists. Given that these services are fundamentally medical in nature, in their current role, community pharmacists as Commonwealth-regulated medical service providers for the purposes of s 51xxiiiA are thereby protected against Commonwealth policy or legislation facilitating civil conscription.
Author(s): Kim Rubenstein
Who governs and how they govern is central to the questions of power, control and citizenship that are at the core of a democratic society. The Uluru Statement from the Heart is the outcome of the 12 First Nations Regional Dialogues culminating in the National Constitutional Convention at Uluru in May 2017. There the First Peoples from across the country formed a consensus position on the form constitutional recognition should take. This article argues that the Uluru Statement from the Heart affirms a commitment to ‘active citizenship’ that draws from a belief in the equal power of the governors and the governed. This understanding of the Uluru Statement from the Heart enables it to be promoted as a document for all Australians, both in the spirit of reconciliation and in its affirmation of a commitment to an equality underpinning Australian citizenship in the 21st century. By examining how citizenship in Australia has evolved as a legal concept and by reflecting on how law is a fundamental tool for providing a ‘meaningful limitation of the lawgiver’s power in favour of the agency of the legal subject’, this article examines the Uluru Statement from the Heart as a commitment to the importance of recognising the nature of the proper relationship between the law giver and those subject to the law — the citizenry. To exercise power within a democratic framework, as opposed to brute force or sheer will over the subject, involves recognising the agency of the citizenry. This idea not only enables reconciliation to be a meaningful and restorative act but one that recalibrates the exercise of power in Australia to benefit all Australians by affirming a commitment to all Australians equal citizenship as active agents.
Author(s): James Prest
This article presents a critical analysis of Australia's federal renewable energy law. Its operation as a system of tradeable renewable energy certificates is briefly explained, before an analysis of the future of the Renewable Energy Target beyond 2020 is undertaken. The implications of the Federal Government's recently abandoned National Energy Guarantee and the subsequent decision no to expand or extend the Renewable Energy Target are discussed. The article presents an international comparison which demonstrates that Australia's national support for renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy law must be extended to address important issues that are presently receiving little legislative or political attention.
The Federal Court of Australia performs a fundamentally important role within Australia’s democratic system. It has served as a site for the disputation, negotiation and resolution of issues fundamentally important to Australian society. It does so in the context of a constitutional system affirming the principle of separation of powers and the rule of law, as a means of preserving and enforcing the rights of individuals and navigating the boundaries of the powers of the state. In that context, its records, gathered both through the internal workings of the court and through the cases that come before it, contain a narrative shaping our contemporary understanding of the rights of the individual and the role of the state. Despite the importance of its records in that narrative, the preservation and access to the Federal Court’s records continues to be seen through the lens of traditional understandings of the management of litigation. This paper explores the Federal Court’s role within the broader context of constructing our understanding of the roles and responsibilities of citizenship and illustrates the importance of the Court’s records as an archival resource. In doing so, it highlights the parallels and inconsistencies between traditional archival institutions and the Court in relation to selection, preservation and access to records.
Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal Education, Legal History and Ethnology, Migration and Movement of Peoples, The Legal Profession
Author(s): Pauline Ridge
The discussion in this chapter of particular intersections between English not-for-profit law and the right to freedom of religion highlights some problems in the existing law. The following suggestions for reform merit further attention. First, ‘religion’ should be defined as widely as possible in order to protect freedom of religion and to promote clarity in legal reasoning. Secondly, in relation to Article 14’s application to religious groups a conceptual framework is needed to determine when it is legitimate for the State to discriminate between religious groups by way of fiscal policy and to more clearly delineate the margin of appreciation afforded to the State when doing so.
Author(s): Jolyon Ford
In this article, we do not seek to engage directly with ongoing discussions regarding the potential merits, and conversely the risks, of seeking to conclude a Business and Human Rights (BHR) treaty at all. Instead, our aim is to promote a greater focus, in the context of the BHR treaty debate, on regulatory effectiveness. That is, we believe that proposals for a BHR treaty should be assessed in terms of their likely efficacy, relative to other available forms of regulatory intervention, in advancing effective enjoyment of human rights in the business context. Whereas many contributions to the BHR treaty debate so far have explicitly or implicitly advocated one or other treaty model they have side-stepped the difficult question of how practically effective these models might be in influencing the conduct of duty bearers.