Senate Inquiry into Price Regulation on the Prostheses List
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.
"Modelling the contracts of the future" Griffith Law Review - Law Theory Society
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
Australian Renewable Energy Law: Carbon Lock-In or Clean Energy Transition? The Pursuit of Policy Stability and Energy Security at Higher Levels of Renewable Generation
Author(s): James Prest
This article critically analyses recent developments in Australia’s renewable energy law and policy. It identifies seven retrograde steps taken in energy and climate law in Australia in the last five years. Barriers to clean energy law - in the form of recurring narratives employed against the rise of renewable energy across Australia - are examined. Increased levels of renewable energy are portrayed by opponents as a threat to the security and reliability of electricity supply. Yet, the nation is currently experiencing a major renewable energy investment boom, supported by regional policy initiatives that are driving innovation, most recently in energy storage.
Overcoming the Invisible Hurdles to Justice for Young People the Final Research and Evaluation Report of the Invisible Hurdles Project: Integrated Justice Practice - Towards Better Outcomes for Young People Experiencing Family Violence in North East Victo
Author(s): Elizabeth Curran
The three-year “Invisible Hurdles Project” was trialled in southern NSW and northern Victoria and successfully broke down intractable mistrust of lawyers and provided legal help to people who usually can’t be reached.
The pilot saw lawyers embed themselves into youth, health and other services reaching 101 people with 198 legal matters which may not have come to light otherwise.
Associate Professor Liz Curran, led the research and evaluation of the project with Pamela Taylor-Barnett assisting - both of ANU School of Legal Practice.
The pilot saw the Hume Riverina Community Legal Service (HRCLS) provided lawyers free of charge who embedded themselves into three partner organisations: The Albury Wodonga Aboriginal Health Service (AWAHS), a school for vulnerable young people, Wodonga Flexible Learning Centre and North East Support and Action for Youth (NESAY).
The report makes many findings and recommendations including The data revealed that non-legal staff responding to clients were also initially distrustful of the lawyers, but now find them a responsive ally which has boosted their capacity to respond effectively. It’s had the knock-on effect of reducing stress and anxiety in themselves and their clients. It can inform other models, policy and funding frameworks as well as future service delivery in multi-disciplinary practices including, health justice partnerships.
Social Security Data-Matching and 'Robodebts'
This work in progress paper discusses problems encountered with social security data-matching in relation to employment history and the use of "robodebts" in relation to recovery of social security overpayments in Australia.
Research theme: International Law
Legislative Pitfalls in Mandating Shared Parenting in Family Law Disputes: An Australian Experience
Author(s): Colin James
Since the Family Law Act was introduced in Australia in 1976, it has endured many amendments with legislators trying to keep the law aligned with their perception of community values. In 2006 the Australian government introduced two ‘objects and principles’ (then s.60B), which seemed innocuous by responding to community concerns, although from opposing sources. The ‘men’s movement’ had complained for years that the Family Court was biased because in parenting disputes it awarded child custody more often to mothers than to fathers. On the other hand, many lawyers and researchers argued that children would be at risk if the Family Court increased the involvement of fathers in contested disputes because of the high incidence of domestic violence and child abuse at the hands of men. The legislators attempted a compromise, a marriage-of-opposites that was doomed to fail and fail it did. In attempting to shift the focus in disputes about children from ‘legal custody’ to ‘shared parenting’, and to satisfy a narrow-interest lobby group, legislators in Australia failed to reflect contemporary community attitudes or to accept research-based, best practice in resolving parenting disputes.
Research theme: Regulatory Law and Policy
Biometrics, Crime and Security
Author(s): Gregor Urbas
This book addresses the use of biometrics – including fingerprint identification, DNA identification and facial recognition – in the criminal justice system: balancing the need to ensure society is protected from harms, such as crime and terrorism, while also preserving individual rights. It offers a comprehensive discussion of biometric identification that includes a consideration of: basic scientific principles, their historical development, the perspectives of political philosophy, critical security and surveillance studies; but especially the relevant law, policy and regulatory issues. Developments in key jurisdictions where the technology has been implemented, including the United Kingdom, United States, Europe and Australia, are examined. This includes case studies relating to the implementation of new technology, policy, legislation, court judgements, and where available, empirical evaluations of the use of biometrics in criminal justice systems. Examples from non-western areas of the world are also considered. Accessibly written, this book will be of interest to undergraduate, postgraduate and research students, academic researchers, as well as professionals in government, security, legal and private sectors.
Research theme: Law and Technology
Blindness Visible: Law, Time and Bruegel's Justice
Author(s): Desmond Manderson
Printed in 1559, Bruegel's 'Justicia' appears at first glance to be a spatial representation of law—a snapshot, a mis en scène. But it is essentially about time. Bruegel's image overlays three different perspectives on the hitherto unexplored relationship between time, responsibility, and legal authority, revealing the hidden anachronism of law. At the same time, law is shown not merely to be a concept or a symbolic form, but a physical practice engraved in the flesh of those who carry it out and suffer it. Justicia takes as its method art's anachronic discourse and power of embodiment; and presents as its thesis the role of anachronic discourse and corporeal experience to the law. These insights were pertinent to the situation of law in the sixteenth century, but they are of far broader significance than that.
Research theme: Legal Theory
Introduction: Fusion and Creation
Author(s): Ron Levy
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 serves as the international reference point on deliberation as a foundational value in constitutional law, and is an indispensable resource for scholars, students and practitioners interested in the vital and complex links between democratic deliberation and constitutionalism.
National Human Rights Institutions (NHRIs) and the Hazards of Being the Nexus between Global and Local: A Case Study of the Myanmar National Human Rights Commission (MNHRC) in the Maelstrom of Public Controversy
Author(s): Jonathan Liljeblad
National Human Rights Institutions (NHRIs), as set forth in the 1993 Paris Principles, are expected to be independent bodies that promote and monitor state implementation of international human rights standards. In such a role, an individual NHRI bridges the gap between “international human rights obligations and actual enjoyment of human rights on the ground” and thereby operates as a nexus between a global human rights system and local conditions. A location at the nexus has the potential to offer opportunities to exercise powers as an intermediary on behalf of human rights in terms of enabling engagement between global and local levels. The analysis, however, draws upon the experiences of the Myanmar National Human Rights Commission (MNHRC) to assert that there are limits for institutions at the nexus between global and local. Using a public controversy from 2016 that questioned the legitimacy of the MNHRC and threatened its existence as an NHRI, the analysis seeks to improve understanding of the risks facing NHRIs and add insight into the ways contextual politics challenge expectations for NHRIs to operate as human rights intermediaries.
Equal Treatment and Non-Discrimination through the Functionalist Lens
Author(s): Amelia Simpson
The Australian Constitution invokes the ideas of equal treatment and discrimination in a number of places, as a direct textual feature of some provisions and also at times as an element of implications drawn from constitutional text and structure. This chapter will explore these instances through a functionalist lens and assess whether, and when, the High Court has produced doctrine that is broadly consistent with the dictates of a functionalist interpretative approach.
Research theme: Constitutional Law and Theory
Beyond Transnational Advocacy: Lessons from Engagement of Myanmar Indigenous Peoples with the UN Human Rights Council Universal Periodic Review
Author(s): Jonathan Liljeblad
On July 21, 2015, the Coalition of Indigenous Peoples in Myanmar/Burma (CIPM), a group representing 24 indigenous rights organizations in Myanmar, announced they were submitting a report to the Universal Periodic Review (UPR) session on Myanmar. The use of the UPR represents an attempt by Myanmar’s indigenous groups to address a variety of issues not traditionally associated with human rights, among them: environmental grievances associated with alleged government seizure of land, deforestation, pollution, and suppression of land-use rights.
The use of the UPR also illustrates an indigenous strategy of reaching up to an international level in order to address problems at a local one: the CIPM resorted to the UPR in hopes of mobilizing pressure to change the behavior of the Myanmar government. This article explores the experiences of the CIPM with the UPR to draw lessons for other groups that seek to use the UPR to advance their interests.
Social Status: The Last Bastion of Discrimination
Author(s): Margaret Thornton
Despite the increasing inequality between rich and poor, there is resistance towards proscribing discrimination on the basis of socioeconomic status. This resistance is marked in Anglophone countries, namely, Australia, New Zealand, Canada, the UK, the US and South Africa, countries that are located in the high inequality/low mobility extreme in terms of socioeconomic status. This article argues that the resistance is associated with the embrace of neoliberalism, a political value system that extols the free market, individualism and profit maximisation. The commitment to competition policy necessarily produces inequality in contradistinction to equality, which informs the philosophical underpinnings of anti-discrimination legislation. Even in the comparatively few jurisdictions where legislation on the basis of social status or a cognate attribute exists, the legislative model is restrictive and the number of complaints minuscule. Most notably, an overview of the Anglophone countries reveals that there is a dearth of complaints involving national and multinational corporations, the primary wealth creators of the neoliberal state that are also major employers. Although employment generally gives rise to the preponderance of discrimination complaints on grounds such as race and sex, it is suggested that the resistance to social status discrimination serves to protect private corporations from scrutiny.
An Introduction to Maritime Crime in West Africa
Author(s): Phillip Drew
This paper examines the issue of maritime crime in the context of West Africa. Acknowledging that maritime crime is a growing threat to commercial shipping in the region, and to the economic health of West African countries, Dr. Drew assess the various factors that have thus far permitted maritime criminals in the region to operate with relative impunity. Recognising that a number of countries and international organisations have engaged in capacity building with the states of the GoG, Drew notes that lasting solutions to maritime crime require a broad approach that provides resources not only for the region’s military and law enforcement challenges, but also the underlying social problems that affect much of the continent.
Two Steps Forward One Step Back: The Non-Linear Expansion of Judicial Power in Pakistan
Author(s): Moeen Cheema
Pakistan’s superior courts have evolved from marginal state institutions to key players mediating the balance of powers in a deeply divided and politically fragmented polity during seven decades of the country’s postcolonial history. Although the political salience of the Supreme Court’s recent actions — including the disqualification of two elected prime ministers — has created the sense of a sudden and ahistorical judicialization of politics, the courts’ prominent role in adjudicating issues of governance and statecraft was long in the making. The perception of an historically docile and subservient court which has suddenly become activist has been shaped by an undue focus on the big constitutional moments of regime or governmental change in which the Apex Court has more often than not sided with the military or military-backed presidency. While these constitutional cases and crises are important, an exclusive focus on this domain of judicial action hides the more significant and consistent developments that have taken place in the sphere of “administrative law.” It is through the consistent development of the judicial review of administrative action, even under military rule, that Pakistan’s superior courts progressively carved an expansive institutional role for themselves. This article highlights the progressive, though non-linear, expansion of judicial power in Pakistan and argues that despite some notable and highly contentious moments of judicial interference in mega politics, the bedrock of judicial review has remained in administrative law — i.e., the judicial review of executive action.
Pakistan: The State of Liberal Democracy
Author(s): Moeen Cheema
2017 was the year of the Panama case. That one case overshadowed all the business in the Apex Court and has shaped public perception of the Court’s role. Just as in the previous electoral cycle, the Supreme Court has disqualified and dismissed a prime minister from office in the year leading up to the messy business of elections. Just as during the tenure of former Chief Justice Chaudhry, the Court has ended up in an overt tussle with a government that is determined to present itself as a victim of a “judicial coup.” The disqualification of the head of the largest political party in Pakistan in the run-up to an election has also raised anxieties about of a political court acting in collusion with the country’s powerful military intent on destabilizing the transitional democratic system.
The Panama case marks the Court’s return to the center of the political stage after a brief hiatus, a position it seems likely to occupy in the foreseeable future. The Supreme Court’s political role is not a recent development. Over the last three decades, the Supreme Court has evolved from a peripheral state institution to a key player mediating the balance of powers in a deeply divided and politically fragmented polity. However, the Court’s exercise of its judicial review jurisdiction appears to be “promiscuous” rather than principled. Despite the larger claims, the superior courts appear to have become “institutions of governance” and judicial review the mode of a “delicate and political process of balancing competing values and political aspirations” . . . providing “a workable modus vivendi” which in turn enables the courts to claim a seat at the table of high politics.
Blockade? A Legal Assessment of the Maritime Interdiction of Yemen’s Ports
Author(s): Phillip Drew
In January 2015, the government of Abdrabbuh Mansour Hadi was ousted from power by Houthi rebels based in the northern highlands of Yemen. Initially forced to flee the country, Hadi soon returned, establishing a new government in the southern city of Aden. His return marked the commencement of the latest phase of Yemen’s perpetual civil war.
In what has often been referred to as the ‘Saudi-led blockade’, a coalition naval force, made up primarily of vessels from Gulf Cooperation Council states, has been enforcing a closure of Yemen’s waters and most of its ports. Yemen requires food imports to feed its population, and fuel imports to generate the electricity that it needs to keep its water plants operating. As a result of the naval interdiction operations, the civilian population of Yemen is in crisis. Approximately 20 million people require humanitarian assistance, and the country continues to struggle under the largest cholera epidemic in history.
This paper examines the legal bases for the current interdiction operations, both from the perspective of the law of naval warfare and the law of the sea. Finally it assesses the role that Security Council resolutions have played in the continuation of the ongoing humanitarian crisis and the role that the Security Council can play in supporting the delivery of humanitarian assistance to those in need.
Designing Referendums for Peacemaking: The Case of Bougainville
The use of referendums in conflict societies has increased significantly in recent decades. A planned referendum in Bougainville, Papua New Guinea, is a current example. Referendums potentially help a conflict society to progress towards a peaceful resolution of its conflict even in the face of entrenched opposition by certain elites. And, because they can enjoy broad social perceptions of democratic legitimacy, referendums may also help to ensure against subsequent breach of any settlement reached. Yet, in practice referendums have not always been beneficial. Little institutional effort has gone toward improving the popular discourse leading up to the final vote. Standard referendum campaigns often merely amplify the voices of contending and entrenched political parties and elites. In a conflict society, where social polarization is pronounced, referendums thus risk aggravating, rather than ameliorating, tensions.
Research in deliberative democracy - with its concern for channeling disagreement into reasoned forms of persuasion - has yielded insights relevant to resolving violent inter-communal conflict. In this article we suggest the use of a specially-designed ‘deliberative referendum’ in Bougainville. Such a referendum may improve the conflicting parties' prospects of reaching common ground. Even a marginal improvement in the referendum’s deliberative quality may help to reconstruct the referendum from a potential destabilizing factor to a more effective peace-building tool. Yet, while we explore how a deliberative referendum might help to impel the Bougainville peace process toward successful resolution, we also consider the referendum’s hazards.
Oral History, Gender and Law
Author(s): Kim Rubenstein
This article considers the relationship between law and gender by sharing information about an oral history project analysing the experience of women lawyers in the public, civic space and women’s experience of lawyering in Australia and of Australian lawyers working in the international context.
Soft Law and Public Liability: Beyond the Separation of Powers?
Author(s): Greg Weeks
Soft law refers to domestic, non-legislative instruments which are designed to influence, modify or otherwise affect conduct. It relies for this result on the fact that people generally assume that soft law requires them to act and has immediate legal effect. Where this assumption is mistaken, individuals have a limited capacity to obtain remedies where public authorities fail to adhere to the terms of their published soft law. This paper examines reliance on soft law and considers a selection of the diverse forms in which it appears. It considers which remedies are available where an individual suffers loss as a result of relying on soft law and asks whether and how the separation of powers doctrine can be updated to attach legal significance to the proliferation of soft law. Soft law is a topic about which little has been written. Given its importance as a regulatory tool, a fuller analysis of its place within the separation of powers model is both timely and original.
Research theme: Administrative Law