Author(s): Darryn Jensen
The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and must resolve disputes in terms of community welfare or socio-economic considerations, more recent formalist, corrective justice-based accounts of the private law simply have no room for any policy or instrumental considerations; the private law is concerned only with the balance of justice between the parties to the dispute. To a large extent, the opposing views rest on deeper philosophical premises about the proper role of law and of the courts in society and have arisen in opposition to each other. The opposing camps thus tend to talk past one another in restating their respective views. In seeking to contribute to, and hopefully advance, this debate, we defend the thesis that direct recourse to considerations of the social, moral, or economic impact on society of a particular rule or ruling, as distinct from the policy of a legal rule or policy as the deeper values of society, is inconsistent with the fundamental characteristics and methodology of the private law and that this is not contradicted by the necessary role of final appellate courts in reformulating the law or by the inherently political and instrumental underpinnings of statutory private law.
Author(s): Margaret Thornton
This article argues that a constellation of factors combine to encourage law graduates to pursue a career in corporate law at the expense of alternative destinations. Most notable are the increasingly high tuition fees law students are charged, but the respective roles of government, the admitting authorities, law schools and the profession cannot be discounted. Each change in policy renders resistance more difficult. The proposed higher education changes contained in the 2017 Australian Federal Budget are exemplary. As it is already assumed that law can be offered cheaply while charging high fees, the Budget cuts could induce universities to increase the number of law students as well as the cost of discretionary law degrees, such as the Juris Doctor. This would not only increase competition for law-related jobs in the labour market, but it would also effect a more vocational orientation to the law curriculum.
Author(s): Ron Levy
In some ways populism provides a starkly poor fit to federal decision making – including decision making about a federation itself. As I describe in this chapter, contemporary populism is at once impatient for, and prone to derailing, federal reform. However, after diagnosing problems, I turn to consider institutional routes around them. The best solutions – those perhaps most able to restart stalled progress toward reform – may be those aiming to harness and redirect, rather than deny, populism’s rising tide. In this regard, deliberative democratic approaches to reform appear to hold particular promise.
Author(s): Greg Weeks
Complex regulatory systems are particularly in need of regulation capable of maintaining both high standards and consistency in decision-making. Soft law is frequently the mechanism of choice to achieve these ends, since it can be made and altered with relative ease but is nonetheless treated as though it were hard and enforceable ‘law’. The law around environmental planning decisions, although subject to detailed legislative control, makes extensive and predominantly effective use of soft law. However, the use of soft law always carries some risk and this is generally imposed asymmetrically upon individuals rather than public bodies. This article will consider these issues, taking account of several relevant cases.
Research theme: Administrative Law
Author(s): Ron Levy
This article examines whether Australia’s constitutional founders intended that a deliberative form of democratic government should govern federally in Australia. Deliberative democratic ideals have long occupied a prominent place in democratic theory. However, they have seldom been brought to bear in a sustained way on historical questions about Australia’s constitutional design. For constitutional scholars, democratic deliberation is now generally a forgotten element of the Australian constitutional system. We show here how the framers concerned themselves with democratic deliberation, including how precisely they envisaged deliberative democratic practices during the federation Conventions and within the new federation. Our focus is on the framers’ understandings of deliberation within the institution of Parliament, and the subsidiary issues bearing on that question such as the relationship between Parliament and the executive and the role of political parties. Our research suggests that deliberative democracy should assume a prominent place alongside more widely acknowledged original constitutional values.
Author(s): Greg Weeks
Accountability is frequently described as one of the key ‘values’ or ‘ideals’ that administrative law is designed to uphold. Accountability’s greatest claim to hold the status of a value might be its ubiquity: it has been described as the ‘buzzword of modern governance’, the ‘über-concept of the 21st century’, and a ‘theme … central to all discussion of government’. Yet the modern meaning of accountability has developed very recently. The word ‘accountability’ can be found in Australian cases over the last century but most refer to the accountability of fiduciaries (such as liquidators and executors) in equity, of taxpayers, of tortfeasors, in electoral matters and of public companies, rather than of government bodies. The concept of the ‘accountability’ of government to those governed has become prominent only fairly recently.
Research theme: Administrative Law
Author(s): Greg Weeks, Matthew Groves, Mark Aronson
Judicial Review of Administrative Action and Government Liability Sixth Edition is one of Australia’s most respected legal texts. It became the first title in our prestigious Lawbook Library Series, because it represents definitive legal scholarship and publishing excellence in Australian law. For two decades, this work has both mapped and supported development of the law and practice of judicial review of administrative action throughout Australia. Repeatedly cited in the High Court of Australia, this landmark work remains the definitive scholarly work for judicial officers, practitioners and students alike.
The sixth edition includes an entirely new chapter on what is now a substantial body of special statutory and common law rules that apply to government liability in contract, tort, and restitution. Numerous decisions of the High Court and the Federal Court, in particular, are producing a discernible relaxation of the traditional grounds of review, and a more expansive approach to the interpretation of regulatory statutes. In addition, the Full Court of the Federal Court has announced a simplification of the criteria for appeals limited to questions of law, overturning literally dozens of earlier precedents.
In the Sixth Edition, Mark Aronson and Matthew Groves are joined by Greg Weeks formerly from the University of New South Wales, and now at the Australian National University. Their combined expertise ensures that this pre-eminent title continues to provide a fresh and authoritative treatment of judicial review of administrative actions in Australia, and an invaluable guide to the special problems relating to government liability in tort, contract and equity.
In one of the great contests between State and federal power, the Tasmanian Dam Case pitted the immovable object of Tasmania’s commitment to a massive hydro-electric project against the irresistible force of the Commonwealth’s determination to protect the environment.
Who would prevail? Was it more important to create jobs and provide cheap power, or to preserve the natural beauty of the Tasmanian wilderness? On whom did the Australian Constitution confer the power to decide this question?
By the narrowest of majorities, the High Court decided in 1983 that the Commonwealth had the final say, and upheld legislation that prohibited the construction of a dam on the Gordon River below the Franklin.
Because of the passions aroused by the case, the Court took the unprecedented step of issuing a statement explaining that its job was not to decide whether the proposed dam was a good idea or not, but to determine whether this was a matter of State or federal power. Yet this issue was just as hotly contested. Could any subject be brought within federal power merely by the presence of an international treaty on that subject? Would affirming this proposition destroy the intended balance between State and federal power? Would denying the proposition disable Australia from full participation in international affairs?
Three decades after the High Court’s decision, these and other questions of law and policy remain of vital importance. This book brings together a fascinating collection of commentaries on the impact of the decision, and how the hopes and fears following the decision have played out.
This stimulating and timely book contains reflections from then Commonwealth Attorney-General Gareth Evans, then High Court Justice Sir Anthony Mason and leading Indigenous lawyer Professor Mick Dodson. The book also examines some novel questions, such as whether the outcome of the case was inevitable, how similar issues have played out in Canada, and whether better conservation outcomes are more likely to come from the Commonwealth or the States. These and other chapters offer fresh perspectives on one of the most important cases in High Court history.
Research theme: Constitutional Law and Theory
The Australian Defence Force, together with military forces from a number of western democracies, have for some years been seeking out and killing Islamic militants in Iraq, Syria and Afghanistan, detaining asylum seekers for periods at sea or running the judicial systems of failed states. It has also been ready to conduct internal security operations at home. The domestic legal authority cited for this is often the poorly understood concept of executive power, which is power that derives from executive and not parliamentary authority. In an age of legality where parliamentary statutes govern action by public officials in the finest detail, it is striking that these extreme exercises of the use of force often rely upon an elusive legal basis. This book seeks to find the limits to the exercise of this extraordinary power.
For reasons of effectiveness, efficiency and equity, Australian law reform should be planned carefully. Academics can and should take the lead in this process. This book collects over 50 discrete law reform recommendations, encapsulated in short, digestible essays written by leading Australian scholars. It emerges from a major conference held at The Australian National University in 2016, which featured intensive discussion among participants from government, practice and the academy. The book is intended to serve as a national focal point for Australian legal innovation. It is divided into six main parts: commercial and corporate law, criminal law and evidence, environmental law, private law, public law, and legal practice and legal education. In addition, Indigenous perspectives on law reform are embedded throughout each part. This collective work—the first of its kind—will be of value to policy makers, media, law reform agencies, academics, practitioners and the judiciary. It provides a bird’s eye view of the current state and the future of law reform in Australia.
Research theme: Law and Social Justice
Contemporary Australian Corporate Law provides an authoritative, contextual and critical analysis of Australian corporate and financial markets law, designed to engage today's LLB and JD students. Written by leading corporate law scholars, the text provides a number of features including: a well-structured presentation of topics for Australian corporate law courses, consistent application of theory with discussion of corporate law principles (both theoretical and historical), comprehensive discussion of case law with modern examples, and integration of corporate law and corporate governance, all with clarity, insight and technical excellence.
Editor(s): Dennis Pearce, Stephen Argument
Now in its fifth edition, Delegated Legislation in Australia provides updated and detailed coverage of all aspects of subordinate legislation, and is an essential reference for legislators, public officials at all levels of government, judicial officers and lawyers. It is the latest addition to the LexisNexis Black and Silver series.
Legislation made by various government and other bodies under the authority of an Act of Parliament far exceeds in volume the legislation made by Parliament in the form of statutes. Delegated Legislation in Australia includes a comprehensive overview of why and how delegated legislation is used to impose obligations on both citizens and business, and in what forms such legislation takes. Commentary is provided for each Australian jurisdiction as to the means used by Parliament to review the content of the legislation, and assess and compare the performance of each parliament.
Author(s): Anthony Connolly
In The Foundations of Australian Public Law, Anthony J. Connolly brings together the two traditionally discrete areas of constitutional and administrative law to present Australian public law as a single, integrated body. Exploring the themes of state, power and accountability in Australia, the text also makes reference to the law of international jurisdictions, where students are informed by contemporary public law theory. Particular attention is also given to the rise of global public law and the increasingly cosmopolitan nature of the subject in Australia. A comprehensive companion website complements the theory and discussion throughout the text and includes chapter summaries, further readings and discussion questions to encourage extended student learning. Written by a leader in the field, The Foundations of Australian Public Law is a key text for students looking to gain a comprehensive understanding of public law across Australia's federal, state and territory jurisdictions.
Research theme: Administrative Law
'Measuring Impact and Evaluation: How and Why? And Some Tips': Workshop 10 – 11 November 2016 for Law Centres Network UK National Conference (Presentation Slides)
Author(s): Elizabeth Curran
This workshop was a practical workshop for Law centres across the UK about why evaluation of services to ascern effectiveness, quality and impact on clients and community is key It flagged some of the challenges of measuring impact, lessons and summarised key literature and research in the area. It also relayed experience of conducting such research and evaluation work and noted some cautions.
The workshop shared some ‘how to's’ from a vantage point of agencies who have limited resources but which would like to provide evidence of what they do, why they do it and how it has an impact, thus building an evidence base for what works well and why.
The workshop concluded by encouraging participants with some guidance from Dr Curran on how to identify some of the outcomes and way they might measure these and impacts of their service on clients and community.
Draft Working Paper for a Research and Evaluation Report for the Bendigo Health–Justice Partnership: A Partnership between ARC Justice Ltd and Bendigo Community Health Services
Author(s): Elizabeth Curran
This report documents the reasons for health justice partnerships, the literature, the methodology, the field research which used a participatory action research approach with a continuous learning and development framework. This Draft Working Paper sets out the summary of qualitative and quantitative data, the findings, conclusions lessons and recommendation emerging from this longitudinal study on the Bendigo Health Justice Partnership, in advance of the Full Final Research and Evaluation Report which will be released in 2017.
ARC Justice (specifically one of its programs, the Loddon Campaspe Community Legal Centre (LCCLC)) and the Bendigo Community Health Service formed a partnership in 2013 to commence a Health Justice Partnership (HJP) in January 2014 to better reach those clients experiencing disadvantage.
ANU (through the author Dr Liz Curran) was commissioned to conduct empirical research and an evaluation of the pilot project's impact on the social determinants of health, its outcomes and the effectiveness of Health Justice Partnerships in reaching clients who would otherwise not gain legal help with a range of problems capable of a legal solution.
This Draft Working Paper is released, in advance of the Full Final Report, so that agencies, researchers and funders and policy makers developing or working in Health Justice Partnerships or multi-disciplinary practices can benefit and be informed by the research and evaluation given the wide range of issues emerging from the research canvasses while the Full Final Report is finalised.
The Full Final Research & Evaluation Report will be released in 2017 but, in the interim, people using SSRN can utilise the research for their work. This responds to the numerous requests to share the research at the earliest opportunity so as to inform service delivery and funding applications which may occur before the release of the Final Report.
Cloud computing has facilitated a revolution in genome sequencing. As big data and personalized medicine increase in popularity in Australia, are the legal and regulatory regimes surrounding this nascent area of scientific research and clinical practice able to protect this private information? An examination of the current regulatory regime in Australia, including the Privacy Act 1988 (CTH) and medical research laws that govern cloud-based genomics research highlights that the key challenge of such research is to protect the interests of participants while also promoting collaborative research processes. This examination also highlights the potential effect that the Trans-Pacific Partnership Agreement’s Electronic Commerce Chapter may have had on using the cloud for genomics and what the consequences may have been for researchers, clinicians and individuals. Lessons learnt here will be relevant to studying similar impacts from other trade and investment agreements such as the Trade in Services Agreement (TiSA).
In recent times, Australia’s national security concerns have had controversial impacts on regulation of Australian medical practitioners in areas related to immigration detention. This column explores three recent case studies relevant to this issue. The first involves the enactment of the Australian Border Force Act 2015 (Cth), which has a significant impact on the regulation of medical professionals who work with people in immigration detention. The second involves the decision of the High Court of Australia in Plaintiff M68/2015 v Minister for Immigration and Border Protection  HCA 1 that an amendment to Australian federal legislation justified sending children back to immigration detention centres in Papua New Guinea and Nauru. This legislation was previously heavily criticised by the Australian Human Rights Commissioner. As a response to that decision, application of the principle of loyalty to the relief of individual patient suffering has guided the decision-making of health professionals who have refused to discharge children from hospitals if that means returning them to offshore immigration detention centres. This legislation was previously heavily criticised by the Australian Human Rights Commissioner. The third case study concerns the deregistration of Tareq Kamleh, an Australian doctor of German-Palestinian heritage who came to public attention on ANZAC Day 2015 with his appearance online in a propaganda video for the Islamic State terrorist organisation al-Dawla al-Islamyia fil Iraq wa'al Sham, also known as Islamic State of Iraq and Syria (ISIS) or Daesh. Dr Tareq Kamleh, an Australian, travelled to Syria and joined the Islamic State (IS) a terrorist organisation whose targeted killing of innocent civilians typifies the terror that has contributed to the influx of refugees into Australian and other immigration detention centres. Australia’s Our professional regulatory system should presumptively respect professional virtues, such as loyalty to the relief of individual patient suffering, when dealing with doctors (whether in Australia or ISIS-occupied Syria or Australia) working under regimes whose principles appear inconsistent with those of ethics and human rights.
Seminar: ‘Reaching People Currently Excluded by Improving Access to Justice Through Multi-Disciplinary Practices’: Health Justice Partnerships - Recent Research Findings’ (Presentation Slides)
Author(s): Elizabeth Curran
This seminar examined recent research findings from the author's research and evaluation of the Bendigo Health Justice Partnerships in a rural & regional are of Victoria based at the Bendigo Community Health Service at its site in a low -socioeconomic area in Australia, as a case study.
The paper also drew on Dr Curran's other research and some of the other research and literature on what can lead to effective legal service delivery and have a positive impact on outcomes and the social determinants of health.
The paper also highlighted the importance of professionals working together to better reach many in the community who have not been accessing legal help due to significant barriers, some of which are systemic, and what the quantitative and qualitative researcher data suggest are key elements in Health Justice Partnerships and Multi-disciplinary practices if they are to be effective.
The author highlights difference between models in the UK, USA and Australia but suggests the research still has some valuable lessons.
Dr Curran stressed that the qualitative data reveals that relationships, respect and trust, emerge as key, for effective services as legal assistance service is essentially human service delivery to people who have complex and multiple issues that make engagement difficult.
Dr Curran cautions against 'top down' 'siloed' service delivery noting that the evidence based research she has undertaken suggests that participatory service delivery that engages, builds capacity, collaborates and empowers providing a voice for community and professionals who deliver the services are all critical for an effective, efficient and well targeted service which the research is suggesting HJP can be if it has such elements in its approach.
Human Rights and Realizing the Right to Health for the Most Disadvantaged – Health Justice Partnerships (Presentation Slides)
Author(s): Elizabeth Curran
This seminar/workshop examines innovations such as multi-disciplinary practice, specifically Health Justice Partnerships (HJP) and how they can enhance human rights adherence and protection.
Services are already hard to navigate for the most vulnerable and disadvantaged. Even where there is no court or tribunal case involved access to legal advice can be critical. It can save mistakes being made, help people understand their rights and responsibilities and according to my research on the impact of HJP's through evidence based field research, such models lead to early intervention and often prevention of problems or their escalation. Fundamental universal human rights such as the right to income support, the right not to experience inhumane or degrading treatment including poor housing, and rights to safety are all aspects that can see vulnerable and disadvantaged people needing legal advice and support.
It is also critical to the Rule of Law. (See author's comments, Chapter 1 (21) ‘Access to Justice’ Global Perspectives on Human Rights (3rd edition, 2015) OHRH, at 22).
This seminar/workshop discusses some of the human rights settings and what HJP can to do help realise rights to health and well being that are effected by the social determinants of health.
It examines some research and findings of the author including the types of lawyers that are critical to successful lawyering and health service support if those programs/services are to be effective in engaging the most vulnerable. The presentation also suggests how HJP might be explored in student clinics and in non government organisations doing work in developing countries which have limited resources and where the reach of HJPs, collaboration and capacity building can be critical. This feeds into Sen's notions of capability and empowerment and the critical importance of systemic work to solve the causes of problems including the alleviation of poverty.
Realizing the Right to Health and Access to Justice for the Most Disadvantaged – Health Justice Partnerships (Presentation Slides)
Author(s): Elizabeth Curran
This Seminar was presented to post graduate students, academic staff and members of non-government organisations and examines recent evidence based research that examines the impact of Multi-Disciplinary Practice such as a Health Justice Partnership (HJP).
The seminar explores the HJPs impact on improving the outcomes of the social determinants of health for clients with legal problems that would otherwise not have been identified or resolved but for the HJP.
It also canvassed empirical data suggestive that there had also been enhancements to the professional capacity of lawyers, health and allied health professionals through working within an HJP setting that benefit clients and enable further reach in resolving legal problems capable of a solution.
Using research in Bendigo a regional, rural of Victoria, Australia the seminar discusses the nature of the research undertaken and key findings. The discussion then led to ideas around expansion of the HJP model in a Danish setting.