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Contracts and the Implied Freedom of Political Communication 契约与隐含的政治传播自由
Federal Law Review Pub Date : 2021-03-01 DOI: 10.1177/0067205X20979754
P. McCabe
{"title":"Contracts and the Implied Freedom of Political Communication","authors":"P. McCabe","doi":"10.1177/0067205X20979754","DOIUrl":"https://doi.org/10.1177/0067205X20979754","url":null,"abstract":"This article considers the phenomenon of contractually-imposed restraints on political communication. Such restraints often incidentally arise from broad limits on out-of-hours conduct imposed by employment contracts or from confidentiality or non-disparagement clauses in deeds of settlement. It is argued that the implied freedom of political communication has work to do in relation to at least some categories of such restraints. The various objections to that view are examined and it is argued those objections are not compelling. The article analyses the question of how the implied freedom would operate in respect of contracts that impermissibly burden freedom of political communication, and suggests that this may be achieved by developing the common law of contract to accomodate a doctrine similar to the doctrine governing unreasonable restraints of trade.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"40 - 72"},"PeriodicalIF":0.0,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20979754","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44406427","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
Public Servants and the Implied Freedom of Political Communication 公务员与隐含的政治沟通自由
Federal Law Review Pub Date : 2021-03-01 DOI: 10.1177/0067205X20973477
A. Gray
{"title":"Public Servants and the Implied Freedom of Political Communication","authors":"A. Gray","doi":"10.1177/0067205X20973477","DOIUrl":"https://doi.org/10.1177/0067205X20973477","url":null,"abstract":"The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"3 - 39"},"PeriodicalIF":0.0,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20973477","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47502367","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
Moving Beyond the Common Law Objection to Structured Proportionality 超越普通法对结构比例性的反对
Federal Law Review Pub Date : 2021-03-01 DOI: 10.1177/0067205X20981512
Anne Carter
{"title":"Moving Beyond the Common Law Objection to Structured Proportionality","authors":"Anne Carter","doi":"10.1177/0067205X20981512","DOIUrl":"https://doi.org/10.1177/0067205X20981512","url":null,"abstract":"This article examines the claim that the adoption of structured proportionality testing in Australian constitutional review is ill-suited to Australia’s common law tradition. That objection has been stated by some members of the High Court and scholars, though the precise basis of the objection has not been clearly articulated. This article clarifies and evaluates this objection, setting out a number of distinct concerns which emerge from the reasoning of the minority justices. Ultimately, the article argues that the objection has been too starkly cast and that Australia’s common law tradition does not present an insurmountable obstacle to the introduction of proportionality testing in constitutional review.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"73 - 95"},"PeriodicalIF":0.0,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20981512","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42305545","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
Towards Responsiveness: Consumer and Citizen Engagement in Co-Regulatory Rule-Making in the Australian Communications Sector 对响应:消费者和公民参与共同监管规则制定在澳大利亚通信部门
Federal Law Review Pub Date : 2021-02-18 DOI: 10.1177/0067205X21993148
Karen Lee, D. Wilding
{"title":"Towards Responsiveness: Consumer and Citizen Engagement in Co-Regulatory Rule-Making in the Australian Communications Sector","authors":"Karen Lee, D. Wilding","doi":"10.1177/0067205X21993148","DOIUrl":"https://doi.org/10.1177/0067205X21993148","url":null,"abstract":"This article begins the process of evaluating the adequacy of the procedural and substantive requirements that Australian communications regulators (and hence industry bodies) must satisfy before co-regulatory codes of practice can be registered. It considers if the procedural requirements relating to consumer and public consultation, included in the statutory frameworks that authorise and govern co-regulation in the media, online and telecommunications sectors, ensure co-regulatory rule-making is sufficiently responsive to the interests of consumers and citizens. Drawing on publicly available information about seven industry bodies that have drafted codes of practice and round table discussions with industry, consumers and regulators, the article highlights that the current engagement practices of industry bodies often fall short of the ‘democratic credentials’ of responsiveness. It suggests that the code registration criteria relating to consumer and public consultation must be overhauled if these weaknesses are to be rectified.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"272 - 302"},"PeriodicalIF":0.0,"publicationDate":"2021-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X21993148","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44322665","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
The Big Picture: Imagining the Constitution 大图景:想象宪法
Federal Law Review Pub Date : 2021-02-18 DOI: 10.1177/0067205X21993150
D. Manderson
{"title":"The Big Picture: Imagining the Constitution","authors":"D. Manderson","doi":"10.1177/0067205X21993150","DOIUrl":"https://doi.org/10.1177/0067205X21993150","url":null,"abstract":"In Australia, a technocratic minimalist approach to constitutional interpretation leaves little space for what has recently been described as a ‘democratic’ or ‘social’ ‘constitutional imaginary’. The ‘big picture’ of what a constitution is, and why it matters, is systematically reduced to a ‘strict and complete legalism’ that shows little interest in the social and cultural functions of a constitution in the modern world. The ‘dual citizenship’ cases (2017–18), concerning s 44 of the Australian Constitution, provide an exceptional case study. The High Court of Australia’s narrow positivism shielded it from criticism, but at a high cost to Australia’s democratic and social fabric. This article argues that, at a time when the rule of law and the public sphere is under threat as never before, we can and should expect more of our peak legal institutions. A constitutional court without a broader commitment to constitutionalism imperils the legitimacy of the whole constitutional order and of the public sphere.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"303 - 323"},"PeriodicalIF":0.0,"publicationDate":"2021-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X21993150","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41327114","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
The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality COVID-19大流行、法院和在线听证会:维护公开司法、程序公平和公正
Federal Law Review Pub Date : 2021-02-15 DOI: 10.1177/0067205X21993139
M. Legg
{"title":"The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality","authors":"M. Legg","doi":"10.1177/0067205X21993139","DOIUrl":"https://doi.org/10.1177/0067205X21993139","url":null,"abstract":"The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic, courts need to function in a manner consistent with their institutional role and their essential characteristics. This article uses the unique circumstances brought about by the pandemic to consider how courts can embrace technology but maintain the core or essential requirements of a court. This article identifies three essential features of courts—open justice, procedural fairness and impartiality—and examines how this recent adoption of technology has maintained or challenged those essential features. This examination allows for an assessment of how the courts operated during the pandemic and also provides guidance for making design decisions about a technology-enabled future court.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"161 - 184"},"PeriodicalIF":0.0,"publicationDate":"2021-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X21993139","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42579674","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: 9
Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality 作为宪法价值的尊严：堕胎、政治沟通和相称性
Federal Law Review Pub Date : 2021-01-08 DOI: 10.1177/0067205X211039890
Caroline Henckels, R. Sifris, Tania Penovic
{"title":"Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality","authors":"Caroline Henckels, R. Sifris, Tania Penovic","doi":"10.1177/0067205X211039890","DOIUrl":"https://doi.org/10.1177/0067205X211039890","url":null,"abstract":"This article examines the High Court of Australia’s treatment of the concept of dignity as both a value animating the implied freedom of political communication and as a legitimate reason to limit the exercise of that freedom. It does so through the lens of Clubb v Edwards, Preston v Avery, where the Court found that laws establishing safe access zones around abortion clinics were compatible with the implied freedom. The use of dignity as a prism through which to view the interests at stake in both abortion and speech cases is a familiar feature of developments abroad, and the Court has laid the foundations for recognition of dignity as one of the axiological bases of the implied freedom in a manner that generally emphasises individual autonomy over other conceptions of dignity that might be described as operating as a constraint on behaviour to protect other interests. Yet, while the Court has used dignity as the common measure with which to commensurate competing claims, it has yet to convincingly address concerns regarding incommensurability that attend the balancing stage of proportionality review, not to mention the potential objection that its reliance on dignity is not properly grounded in the text and structure of the Constitution. In light of these issues, the role of dignity ought to be tethered to its central role in facilitating political participation so as to more clearly link the concept to the text and structure of the Constitution, and to identify what is at stake when women’s ability to access reproductive health care is impaired or denied.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"554 - 568"},"PeriodicalIF":0.0,"publicationDate":"2021-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49138604","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
Corrigendum to Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni 宪法文本、权威意图和隐含权利的更正：对艾伦和阿尔西奥尼的回应
Federal Law Review Pub Date : 2020-12-03 DOI: 10.1177/0067205x20980909
{"title":"Corrigendum to Constitutional Text, Authorial Intentions and Implied Rights: A Response to Allan and Arcioni","authors":"","doi":"10.1177/0067205x20980909","DOIUrl":"https://doi.org/10.1177/0067205x20980909","url":null,"abstract":"Jim Allan contends in a recent issue of the Federal Law Review that the High Court’s implied rights jurisprudence is illegitimate, because it is not adequately moored in the constitutional text and the historical intentions of its authors. Elisa Arcioni’s response accepts that constitutional doctrines should be grounded in the text and authorial intentions but argues that the implied rights cases meet this standard. Arcioni is correct, but more can usefully be said about the precise interpretive basis for the implied rights reasoning. A faithful attempt to give effect to the framers’ intentions, as I have shown in detail elsewhere, must sometimes ask not only what they had in mind when the text was written but also what those intentions entail in a contemporary setting. This involves placing both the constitutional text and authorial intentions within a broader context of legal and social institutions. The High Court’s implied rights jurisprudence, viewed in this light, is a legitimate attempt to identify and apply the Constitution’s intended meaning.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205x20980909","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41966221","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
The Efficacy of Australia Adopting a Debarment Regime in Public Procurement 澳大利亚在公共采购中采用约束制度的效果
Federal Law Review Pub Date : 2020-11-28 DOI: 10.1177/0067205X20973478
O. Dixon
{"title":"The Efficacy of Australia Adopting a Debarment Regime in Public Procurement","authors":"O. Dixon","doi":"10.1177/0067205X20973478","DOIUrl":"https://doi.org/10.1177/0067205X20973478","url":null,"abstract":"While transparent and efficient public sector procurement systems facilitate innumerable opportunities for stakeholders, the scale and scope of the global procurement market has rendered it increasingly vulnerable to corruption. The Organisation for Economic Co-operation and Development estimates that annually US$2 trillion of public funds is lost to corruption, yet governments have failed to respond with robust measures to deter such practice. Through comparing the debarment frameworks and policy goals across five jurisdictions, this article argues that Australia should consider adopting a discretionary debarment regime. By excluding bidders who have engaged in ‘corporate integrity offences’ from procurement contracts, debarment policies offer a potentially important mechanism in the fight against corruption. Debarment would not only protect the government from current threats, but it may also deter potential wrongdoers, encourage contractors to rehabilitate themselves, incapacitate actual offenders and facilitate development of a culture of compliance through the competitive advantage gains enjoyed by law-abiding firms.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"122 - 148"},"PeriodicalIF":0.0,"publicationDate":"2020-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205X20973478","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48277855","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
The Reserve Powers in Times of Political Crisis: The Dutton/Turnbull Leadership Challenge and Royal Assent to the Medevac Bill and Brexit Bills 政治危机时期的后备权力:达顿/特恩布尔领导的挑战和对医疗后送法案和英国脱欧法案的皇家批准
Federal Law Review Pub Date : 2020-11-25 DOI: 10.1177/0067205x20973485
A. Twomey
{"title":"The Reserve Powers in Times of Political Crisis: The Dutton/Turnbull Leadership Challenge and Royal Assent to the Medevac Bill and Brexit Bills","authors":"A. Twomey","doi":"10.1177/0067205x20973485","DOIUrl":"https://doi.org/10.1177/0067205x20973485","url":null,"abstract":"The period of 2018–19 threw up political crises in Australia and the United Kingdom that raised circumstances in which the reserve powers of the Queen or the Governor-General might have been exercised. This article discusses in depth the 2018 challenge to Prime Minister Turnbull’s leadership, including how the Governor-General should have responded if he had been asked to dissolve Parliament in the midst of the challenge or if he had been advised not to appoint Dutton as Prime Minister due to concerns about his eligibility to sit in Parliament. The second part deals with the question of whether royal assent should be refused, upon ministerial advice, to a bill, such as the Medevac Bill in Australia and two Brexit delay bills in the United Kingdom, which were passed against the wishes of the relevant government, including when procedural or non-justiciable constitutional requirements were breached in the passage of the bills. It concludes that the best way of resolving such issues is to resort to the application of fundamental constitutional principles.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"49 1","pages":"96 - 121"},"PeriodicalIF":0.0,"publicationDate":"2020-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/0067205x20973485","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47713731","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
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