Federal Law Review最新文献_第10页

Constitutional Change Outside the Courts: Citizen Deliberation and Constitutional Narrative(s) in Ireland’s Abortion Referendum 法院外的宪法变革：爱尔兰堕胎公投中的公民审议和宪法叙事

Federal Law Review Pub Date : 2020-09-10 DOI: 10.1177/0067205X20955111

E. Carolan

引用次数: 2

Corrigendum to Calibrated Proportionality 校准比例的更正

Federal Law Review Pub Date : 2020-09-01 DOI: 10.1177/0067205x20940447

引用次数: 0

Withdrawn: Knighthoods and the Order of Australia 撤回:爵位和澳大利亚骑士团

Federal Law Review Pub Date : 2020-09-01 DOI: 10.1177/0067205x19892363

G. Taylor

引用次数: 0

Withdrawal – Knighthoods and the Order of Australia 退出——骑士团和澳大利亚骑士团

Federal Law Review Pub Date : 2020-06-09 DOI: 10.1177/0067205x20936388

引用次数: 0

Keep Your (Horse) Hair On? Experimental Evidence on the Effect of Exposure to Legitimising Symbols on Diffuse Support for the High Court 留着你（马）的头发？暴露于合法符号对高等法院广泛支持的影响的实验证据

Federal Law Review Pub Date : 2020-06-05 DOI: 10.1177/0067205X20927818

I. Nielsen, Zoe Robinson, R. Smyth

{"title":"Keep Your (Horse) Hair On? Experimental Evidence on the Effect of Exposure to Legitimising Symbols on Diffuse Support for the High Court","authors":"I. Nielsen, Zoe Robinson, R. Smyth","doi":"10.1177/0067205X20927818","DOIUrl":"https://doi.org/10.1177/0067205X20927818","url":null,"abstract":"Positivity theory posits that the courts rely on powerful legitimising symbols—such as elaborate judicial attire, honorific forms of address and imposing courtroom design—to ensure legitimacy in the eyes of the public in the absence of an electoral mandate. The argument is that such legitimising symbols evoke images of learning and pageantry and create the presumption that the process by which the decision was made was fair. Typically, positivity theory has been tested by examining whether people who have a greater awareness or knowledge of the courts express higher diffuse support for their decisions. Yet, such an approach assumes that those who know more about the courts will have greater exposure to their legitimising symbols. It does not directly test if exposure to the courts’ legitimising symbols causes people to be more acquiescent with decisions with which they disagree. In this article we use a survey-based experiment to examine if exposure to the legitimising symbols of the High Court makes people more willing to accept decisions of the Court with which they disagree. We assess whether the decision of the High Court Justices to simplify their attire, including, since 1988, ceasing to wear wigs when sitting on the Bench, has adversely affected the Court’s institutional legitimacy by removing some of the mystique associated with the decision-making process. We find that exposure to the Court’s legitimising symbols is associated with higher acquiescence with decisions which people disagree with, but the Court’s decision to simplify the Justices’ attire has not adversely affected diffuse support for its decisions. Our findings are important because the Court is reliant on maintaining legitimacy to enforce the rule of law. Our results speak directly to how the Court can best take steps to increase its institutional legitimacy in the eyes of the public.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"382 - 400"},"PeriodicalIF":0.0,"publicationDate":"2020-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20927818","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41923790","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Taking Process-Based Theory Seriously: Could ‘Discrete and Insular Minorities’ Be Protected Under the Australian Constitution? 认真对待基于过程的理论：“离散和岛屿少数群体”能否受到澳大利亚宪法的保护？

Federal Law Review Pub Date : 2020-06-01 DOI: 10.1177/0067205X20927813

Amelia Loughland

{"title":"Taking Process-Based Theory Seriously: Could ‘Discrete and Insular Minorities’ Be Protected Under the Australian Constitution?","authors":"Amelia Loughland","doi":"10.1177/0067205X20927813","DOIUrl":"https://doi.org/10.1177/0067205X20927813","url":null,"abstract":"The High Court is committed to protecting the substantive rights necessary for the effective functioning of the constitutionally entrenched system of representative and responsible government. This is consistent with a ‘representation-reinforcing’ approach to constitutional review as advocated by John Hart Ely in the United States, in which judicial intervention is limited to protecting the ordinary political processes established by the Constitution rather than adjudicating on its outcomes. While the High Court has demonstrated an Elyian commitment to keeping open the channels of political change, it has not engaged with the protection of minority rights or equality concerns more broadly which were a key element of process-based theory. In this article, I argue that the judicial protection of minority rights is a necessary and desirable corollary of the constitutional entrenchment of representative government in the Australian Constitution. I explore how this could arise through either a freestanding guarantee of equality or in a weaker form by inflecting other areas of constitutional practice. Ultimately, I acknowledge that while the High Court’s current interpretive approach may not support a broad protection of equality, its process-based protection of representative government provides an available means to recognise minority rights under the Australian Constitution.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"324 - 349"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20927813","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45871733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Allegiance, Foreign Citizenship and the Constitutional Right to Stand for Parliament 效忠、外国公民身份和宪法规定的议会代表权

Federal Law Review Pub Date : 2020-06-01 DOI: 10.1177/0067205x20927809

Rayner Thwaites, H. Irving

{"title":"Allegiance, Foreign Citizenship and the Constitutional Right to Stand for Parliament","authors":"Rayner Thwaites, H. Irving","doi":"10.1177/0067205x20927809","DOIUrl":"https://doi.org/10.1177/0067205x20927809","url":null,"abstract":"In 2017, in Re Canavan, the High Court of Australia found five sitting Members of the Commonwealth Parliament to be citizens of a ‘foreign power’ and thus ineligible, under s 44(i) of the Constitution, to hold their seats. In 2018, in Re Gallagher, the High Court found that a Senator who had attempted unsuccessfully to renounce her British citizenship prior to her Senate candidature was similarly ineligible. In this article, we argue that the conclusion in Re Canavan was incorrect: that both the Court’s reasoning about the purpose of s 44(i)—to avoid ‘split allegiance’—and its methodology for determining foreign citizenship were inconsistent in their own right and also against its reasoning in Re Gallagher. We challenge the Court’s conflation of citizenship and allegiance with obedience to a state. We examine the rules of international law for identifying a person’s citizenship, as well as exceptions to these rules, including what came to be known as the ‘constitutional imperative’, which the Court held will exempt a foreign citizen from s 44(i) disqualification under certain circumstances. We conclude that the Court, in seeking to avoid ‘uncertainty and instability’ in its interpretation of s 44(i), did the opposite. Had it looked, instead, to the relevant foreign state for an authoritative determination of a person’s citizenship, confusion and uncertainty surrounding s 44(i) could have been avoided, and a democratic understanding of Australian citizenship could have been prioritised.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"299 - 323"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205x20927809","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45711315","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Three Decades of Tension: From the Codification of Migration Decision-Making to an Overarching Framework for Judicial Review 三十年的紧张：从移民决策的编纂到司法审查的总体框架

Federal Law Review Pub Date : 2020-05-29 DOI: 10.1177/0067205X20927811

Gr Hooper

{"title":"Three Decades of Tension: From the Codification of Migration Decision-Making to an Overarching Framework for Judicial Review","authors":"Gr Hooper","doi":"10.1177/0067205X20927811","DOIUrl":"https://doi.org/10.1177/0067205X20927811","url":null,"abstract":"Over the last three decades, Australian administrative law decisions about who will be allowed to stay in Australia have led to more interaction and tension between the elected government (Parliament and Ministry) and the judiciary than any other subject matter. This interaction has been intensified by Parliament’s attempts to amend the Migration Act 1958 (Cth) to codify judicial review and the procedures to be followed when making decisions under the Act. These amendments were made with the specific aim of minimising, if not practically eliminating, the judiciary’s influence over executive decision-making. However, this outcome has not been achieved. Rather, through a thousand cuts, or more literally cases, the codification efforts of Parliament have been weakened. Instead, the judiciary has put in place an overarching judicial review framework centred on the inherently flexible concept of jurisdictional error. This framework places equal emphasis on both express and implied statutory obligations and procedures. Express procedures have often being interpreted to include judicially created natural justice-like obligations and implied procedures often including other natural justice-like obligations or at least a base level of fairness premised on the constitutionally entrenched premise that the executive cannot decide arbitrarily.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"401 - 431"},"PeriodicalIF":0.0,"publicationDate":"2020-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20927811","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46959912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Categories of the ‘Art of the Impossible’: Achieving Sustainable Uniformity in Harmonised Legislation in the Australian Federation “不可能的艺术”的类别：在澳大利亚联邦的协调立法中实现可持续的统一

Federal Law Review Pub Date : 2020-05-28 DOI: 10.1177/0067205X20927808

Guzyal Hill

{"title":"Categories of the ‘Art of the Impossible’: Achieving Sustainable Uniformity in Harmonised Legislation in the Australian Federation","authors":"Guzyal Hill","doi":"10.1177/0067205X20927808","DOIUrl":"https://doi.org/10.1177/0067205X20927808","url":null,"abstract":"National uniform legislation links the federal distribution of powers achieved more than 119 years ago with the challenges and opportunities faced by Australia in an interconnected world. Over this span of time, developing national uniform legislation has been described as the ‘art of the impossible’. The main objective of this article is to critically examine the database of national uniform legislation with a view to applying public policy and federalist theory to explain how sustainable uniformity has been achieved. Rather than focusing on why an individual set of uniform Acts has not achieved a high level of uniformity or has diverged through unilateral amendment, this article examines national uniform legislation by analysing the factors at play. This approach allows the common patterns impacting sustainable uniformity to be identified. From among 84 sets of uniform Acts, four discernible links with theory have been found: (1) the ‘incrementalism and policy cycle’ model—to explain harmonisation that may take decades (31 sets); (2) the ‘multiple streams’ framework, explaining legislation that emerges as sustainably uniform from the outset due to an ‘open policy window’ (16 sets); (3) ‘pragmatic federalism’ solutions, such as skeletal legislation and the conferral of powers, which are developed in the course of inter-jurisdictional negotiations when uniformity is required but is particularly difficult to achieve (14 sets); and (4) the ‘advocacy coalition’ framework, which in contrast, explains situations where jurisdictions hold firm views about retaining diversity (23 sets). Developing and drafting national uniform legislation can become the ‘art of the possible’ with this improved understanding.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"350 - 381"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20927808","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49386142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Slicing and Dicing Work in the Australian Horticulture Industry: Labour Market Segmentation within the Temporary Migrant Workforce 澳大利亚园艺业的切片和切块工作：临时移民劳动力中的劳动力市场细分

Federal Law Review Pub Date : 2020-03-23 DOI: 10.1177/0067205X20905956

J. Howe, A. Reilly, Stephen Clibborn, Diane van den Broek, C. Wright

{"title":"Slicing and Dicing Work in the Australian Horticulture Industry: Labour Market Segmentation within the Temporary Migrant Workforce","authors":"J. Howe, A. Reilly, Stephen Clibborn, Diane van den Broek, C. Wright","doi":"10.1177/0067205X20905956","DOIUrl":"https://doi.org/10.1177/0067205X20905956","url":null,"abstract":"This article exposes how disparity in the immigration rules of different visas combines with poor enforcement of labour standards to produce a segmented labour market in the Australian horticulture industry. We argue that the precarious work norms of the horticulture industry result in a ‘demand’ on the part of employers for harvest workers to perform precarious jobs. Such demand has been met by the workers supplied through different segments of temporary migrant labour who may be a particularly attractive form of precarious labour because of the conditionalities they experience as a result of their visa class. Our analysis demonstrates that not only do growers make preferences between local and temporary migrant workers, but they also make preferences between different types of temporary migrant workers. In identifying segmentation between temporary migrant workers on different visa categories, the article makes a significant contribution to the labour market segmentation literature, which hitherto has focused on segmentation between migrant workers and non-migrant workers.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"48 1","pages":"247 - 271"},"PeriodicalIF":0.0,"publicationDate":"2020-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20905956","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45783248","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 5