Federal Law Review最新文献_第6页

The ‘Three RS’ in Malaysia’s Struggle for Constitutional Democracy 马来西亚宪政民主斗争中的“三个RS”

Federal Law Review Pub Date : 2022-04-17 DOI: 10.1177/0067205X221087460

D. Shah

{"title":"The ‘Three RS’ in Malaysia’s Struggle for Constitutional Democracy","authors":"D. Shah","doi":"10.1177/0067205X221087460","DOIUrl":"https://doi.org/10.1177/0067205X221087460","url":null,"abstract":"Race, religion and royalty (the Three ‘Rs’) have been salient aspects of Malaysia’s constitutional struggle. These elements have defined the country’s constitutional settlements during the pre-independence constitution-making process, generated constitutional crises and continued to figure into day-to-day governance and constitutional practice. There have been instances where operation of and compromises around the Three Rs have facilitated constitution-building. Yet, more often than not, as this article illustrates, the constellation of these three forces have challenged the building and sustaining of a constitutional democracy. Since the historic political change in May 2018 in particular, the Three Rs have become even more significant in shaping the critical junctures in Malaysia’s constitutional journey. To illuminate a more comprehensive understanding of the role of race, religion and royalty in Malaysia’s struggle for constitutional democracy, this article explains how these elements have defined (and continued to define) controversies relating to the distribution of political power and the protection of fundamental rights. Fundamentally, these aspects implicate checks and balances and constraints on political power. This article also demonstrates the ways in which the struggle for constitutional democracy implicates a range of actors and interests: aside from individual citizens, there are the monarchy, the elected government, the courts and group (ethnic) interests. This article then draws on institutional and political explanations in accounting for Malaysia’s constitutional struggle. In particular, aside from changing political fundamentals, it argues that the Constitution provides the opportunity structure and institutional resources for the Three Rs to shape Malaysia's struggle for constitutional democracy.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"137 - 155"},"PeriodicalIF":0.0,"publicationDate":"2022-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49397613","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

Short Stay Visa Holders and Occupational Trainees in Australia’s Labour Migration Program: Regulatory Challenges at The Apex of Temporariness 澳大利亚劳工移民计划中的短期签证持有者和职业实习生：暂时性顶点的监管挑战

Federal Law Review Pub Date : 2022-02-28 DOI: 10.1177/0067205x211066139

J. Howe, I. Nikoloudakis

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引用次数: 0

Distancing From Accountability? Governments’ Use of Soft Law in the COVID-19 Pandemic 远离责任?政府在COVID-19大流行中使用软法

Federal Law Review Pub Date : 2022-02-22 DOI: 10.1177/0067205X211066144

Matthew McLeod

{"title":"Distancing From Accountability? Governments’ Use of Soft Law in the COVID-19 Pandemic","authors":"Matthew McLeod","doi":"10.1177/0067205X211066144","DOIUrl":"https://doi.org/10.1177/0067205X211066144","url":null,"abstract":"This article analyses how governments across Australia and the world have employed ‘soft law’ in their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of voluminous, complex and everchanging public health orders, executive officials have utilised a variety of non-legal soft law instruments to inform the community of their rights and obligations. These instruments are beneficial — especially in a public health crisis — as they are comprehensible, adaptable and effective. However, their non-legal nature also presents significant accountability issues which challenge the Australian conception of the separation of powers. Soft law exists independent of any parliamentary authorisation or oversight. Subsequently, those affected by soft law lack almost any ability to challenge its use in court. To remedy such issues, this article recommends a greater role for administrative complaint mechanisms (such as Ombudsman recommendations and discretionary payment schemes) in combatting abuses of soft law. It further suggests that the limited adoption of two foreign doctrines — substantive legitimate expectations and epistemic deference — into Australian judicial review could aid in addressing this dilemma.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"3 - 19"},"PeriodicalIF":0.0,"publicationDate":"2022-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"65417287","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

Simply Unconvincing: The High Court on Probative Value and Reliability in the Uniform Evidence Law 简单不服气：高等法院对统一证据法中推定价值与可靠性的思考

Federal Law Review Pub Date : 2022-02-22 DOI: 10.1177/0067205X211066140

J. Chin, G. Edmond, Andrew Roberts

引用次数: 1

The Communist Party Case Revisited: Constitutional Review in the 2020 Term 重新审视中共案:2020年任期的宪法审查

Federal Law Review Pub Date : 2022-02-17 DOI: 10.1177/0067205X211066142

L. Crawford

引用次数: 0

Is Legislation Governing Tertiary Work Experience Effective? Exploring the Regulatory Role Played by Australian Universities 规管大专工作经验的法例是否有效?探讨澳大利亚大学的监管作用

Federal Law Review Pub Date : 2022-02-15 DOI: 10.1177/0067205x211066141

A. Hewitt

引用次数: 0

Silent Partners? Trade Unions, Corporations and Penalty Privilege in the Federal Court of Australia 沉默的合作伙伴？工会、公司与澳大利亚联邦法院的处罚特权

Federal Law Review Pub Date : 2022-02-15 DOI: 10.1177/0067205X211066143

E. Schofield-Georgeson

引用次数: 0

The Constitution’s Guarantee of Legal Accountability for Jurisdictions 宪法对司法管辖区法律问责的保障

Federal Law Review Pub Date : 2021-10-26 DOI: 10.1177/0067205x211039887

E. Hammond

引用次数: 0

Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin 行政行为司法审查中的制度价值:重读attorney general (NSW) V Quin

Federal Law Review Pub Date : 2021-10-26 DOI: 10.1177/0067205X211039892

Lynsey Blayden

{"title":"Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin","authors":"Lynsey Blayden","doi":"10.1177/0067205X211039892","DOIUrl":"https://doi.org/10.1177/0067205X211039892","url":null,"abstract":"Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"594 - 619"},"PeriodicalIF":0.0,"publicationDate":"2021-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47843346","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

Arcioni, Crowe and Allan on Constitutional Interpretation: A Worder of Crowes 阿尔西奥尼、克劳和阿兰论宪法解释：克劳的一句话

Federal Law Review Pub Date : 2021-10-23 DOI: 10.1177/0067205x211050853

James Allan

{"title":"Arcioni, Crowe and Allan on Constitutional Interpretation: A Worder of Crowes","authors":"James Allan","doi":"10.1177/0067205x211050853","DOIUrl":"https://doi.org/10.1177/0067205x211050853","url":null,"abstract":"It is, of course, flattering to have not one, but two, fellow constitutional law scholars take issue, in print, with something I recently wrote in the pages of this law review. And so I am most grateful to both Elisa Arcioni and Jonathan Crowe. Now, given the space constraints, I will keep this short, focussed on a few core disagreements, and comprehensible to readers who may not have read the earlier articles. My original piece, ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?’, in the pages of this law review was an extended critique of a recent High Court decision. Part of that critique involved a more foundational criticism of the entire judicially created implied rights jurisprudence. Crowe, in ‘Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni’, and Arcioni, in ‘Some Reflections on “Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?”’, took issue with my views on the proper approach to constitutional interpretation (though for Arcioni it was more to do with what sort of results that approach would deliver). As Crowe’s criticisms are far more deep-rooted, I will respond to him first. Note, however, that my original article was specifically aimed at criticising the High Court’s recent jurisprudence. It was not a wider theoretical piece defending a particular approach to constitutional interpretation. As it happens, I have written the latter sort of chapters and articles, too; indeed, Crowe cites one of them, and these can be consulted for a more detailed defence of what I will sketch out here. You see, I am a defender of what is known as ‘originalism’. Crowe is not. So perhaps it might be best to begin with a","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"499 - 504"},"PeriodicalIF":0.0,"publicationDate":"2021-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43395171","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