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 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.
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.
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.
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.
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
Here and Now: From Aestheticizing Politics to Politicizing Art
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
Shotgun Referendums: Popular Deliberation and Constitutional Settlement in Conflict Societies
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.
Monetary Awards for Public Law Wrongs: Australia's Resistant Legal Landscape
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’.
Women Judges, Private Lives: (In)Visibilities in Fact and Fiction
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