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Constraining the Uber-Powerful Digital Platforms: A Proposal for a New Form of Regulation of On-Demand Road Transport Work 约束超级强大的数字平台:按需道路运输工作监管新形式的建议
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/dpei2001
M. Rawling, Joellen Riley Munton
{"title":"Constraining the Uber-Powerful Digital Platforms: A Proposal for a New Form of Regulation of On-Demand Road Transport Work","authors":"M. Rawling, Joellen Riley Munton","doi":"10.53637/dpei2001","DOIUrl":"https://doi.org/10.53637/dpei2001","url":null,"abstract":"Late in 2020 in California, two giant rideshare operators, Uber and Lyft, spearheaded a USD200 million campaign to overturn state legislation providing employment entitlements to their workers. This article exposes the way these enterprises employ legal drafting to disguise the reality of their relationships with workers; and we consider the rhetorical arguments they use to justify these strategies. We conclude that it is time for Australian regulators to adopt an alternative approach to ensuring basic protections for workers which focusses on the nature of the work being undertaken, rather than on the legal form of the contract between enterprise and worker. We focus on the Australian road transport industry, and particularly on rideshare and food delivery workers, because despite assertions that their labour is part of a shiny new ‘digital economy’, this kind of work has been important in societies since medieval times, or earlier.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44106392","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
Judicial Review and the Tax-Assessment Making Process 司法审查与税收评估过程
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/dlcb5923
J. Azzi
{"title":"Judicial Review and the Tax-Assessment Making Process","authors":"J. Azzi","doi":"10.53637/dlcb5923","DOIUrl":"https://doi.org/10.53637/dlcb5923","url":null,"abstract":"Noting the ‘deep concern’ of taxpayers and stakeholders with how the assessment power is sometimes used, this article demonstrates that notwithstanding the statutory process for overturning an assessment in part IVC of the Taxation Administration Act 1953 (Cth) and recent judicial comments constraining the scope of judicial review for jurisdictional error, judicial review is nevertheless available to invalidate a default assessment or one made at any time where the Commissioner merely suspects the taxpayer engaged in fraud or evasion without any probative evidence to this effect. As will appear, in either instance the assessment-making process may be challenged in judicial review proceedings for legal unreasonableness, which markedly differs, and is otherwise excluded, from a part IVC challenge but which fundamentally bears on whether there has been abuse of the assessment-making power and thus whether the ensuing assessment satisfies the statutory description of assessment.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44412877","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
Refugees and Asylum Seekers as Workers: Radical Temporariness and Labour Exploitation in Australia 难民和寻求庇护者作为工人:激进的临时性和澳大利亚的劳动剥削
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/vvzr2705
Laurie Berg, S. Dehm, A. Vogl
{"title":"Refugees and Asylum Seekers as Workers: Radical Temporariness and Labour Exploitation in Australia","authors":"Laurie Berg, S. Dehm, A. Vogl","doi":"10.53637/vvzr2705","DOIUrl":"https://doi.org/10.53637/vvzr2705","url":null,"abstract":"This article analyses the emerging evidence of labour exploitation of refugees and asylum seekers on temporary visas in Australia. Over the last decade, Australia’s temporary protection regime has been marked by profound uncertainty in relation to visa status, unfettered Ministerial discretion, and the punitive exercise of governmental power. We argue that this framework amounts to abuse of governmental power, confining refugees and asylum seekers who arrived by boat to a situation of radical temporariness in Australia. This results not only in the denial of permanent protection and social inclusion to these refugees and asylum seekers, but also provides conditions for greater abuse of power by employers in the realm of workplaces across Australia. We outline six factors related to temporary immigration status and other punitive, unpredictable and arbitrary elements in this regulatory regime that currently increase the vulnerability of refugees and asylum seekers to labour exploitation.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46941606","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
Who is Eligible for Voluntary Assisted Dying: Nine Medical Conditions Assessed against Five Legal Frameworks 谁有资格自愿协助死亡：根据五个法律框架评估九种医疗状况
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/fyid9182
B. White, L. Willmott, Katrine Del Villar, Jayne Hewitt, Eliana Close, Laura Ley Greaves, J. Kevin Cameron, R. Meehan, J. Downie
{"title":"Who is Eligible for Voluntary Assisted Dying: Nine Medical Conditions Assessed against Five Legal Frameworks","authors":"B. White, L. Willmott, Katrine Del Villar, Jayne Hewitt, Eliana Close, Laura Ley Greaves, J. Kevin Cameron, R. Meehan, J. Downie","doi":"10.53637/fyid9182","DOIUrl":"https://doi.org/10.53637/fyid9182","url":null,"abstract":"Eligibility criteria in voluntary assisted dying legislation determine access to assistance to die. This article undertakes the practical exercise of analysing whether each of the following nine medical conditions can provide an individual with access to voluntary assisted dying: cancer, motor neurone disease, chronic obstructive pulmonary disease, chronic kidney disease, Alzheimer’s disease, anorexia, frailty, spinal cord injury and Huntington’s disease. This analysis occurs across five legal frameworks: Victoria, Western Australia, a model Bill in Australia, Oregon and Canada. The article argues that it is critical to evaluate voluntary assisted dying legislation in relation to key medical conditions to determine the law’s boundaries and operation. A key finding is that some frameworks tended to grant the same access to voluntary assisted dying, despite having different eligibility criteria. The article concludes with broader regulatory insights for designing voluntary assisted dying frameworks both for jurisdictions considering reform and those reviewing existing legislation.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42701107","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
Beyond Unconscionability Exploring the Case for a New Prohibition on Unfair Conduct 超越无意识探索新的不正当行为禁令
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/ibyx4580
Nicholas J. Felstead
{"title":"Beyond Unconscionability Exploring the Case for a New Prohibition on Unfair Conduct","authors":"Nicholas J. Felstead","doi":"10.53637/ibyx4580","DOIUrl":"https://doi.org/10.53637/ibyx4580","url":null,"abstract":"Consumer Affairs Australia and New Zealand conducted a wholesale review of the Australian Consumer Law in 2017. Despite calls for the introduction of an ‘unfair conduct’ prohibition, the review found that a change to the current prohibition on ‘unconscionable conduct’ was unnecessary in light of the statutory prohibition evolving from its equitable origins. The recent High Court decision in Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 has stifled this development and realigned statutory unconscionability with the restrictive equitable doctrine. In light of curial and extra- curial comments from senior members of the judiciary, regulators and commentators, it is appropriate to reconsider the merits of a prohibition on unfair conduct. This article argues that this reform will better promote community understanding, lead to greater certainty in commerce and fulfil the role of a ‘safety net’ provision in the Australian Consumer Law.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47552867","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
Addressing the Impact of Animal Abuse: The Need for Legal Recognition of Abused Pets as Sentient Victims of Domestic Violence in Australia 解决动物虐待的影响:需要法律承认受虐待的宠物是澳大利亚家庭暴力的有知觉的受害者
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/wgyr1275
J. Kotzmann, M. Bagaric, Gabrielle C. Wolf, Morgan Stonebridge
{"title":"Addressing the Impact of Animal Abuse: The Need for Legal Recognition of Abused Pets as Sentient Victims of Domestic Violence in Australia","authors":"J. Kotzmann, M. Bagaric, Gabrielle C. Wolf, Morgan Stonebridge","doi":"10.53637/wgyr1275","DOIUrl":"https://doi.org/10.53637/wgyr1275","url":null,"abstract":"Awareness of the incidence and impact of domestic violence has increased in recent decades, along with community and legal recognition of the interests of animals. However, streams of jurisprudence addressing these issues have only partially influenced one another. While in most Australian jurisdictions, animal cruelty can constitute domestic violence, abused companion animals have not been accorded the legal status of victims. This article proposes introducing laws that recognise such animals as sentient victims of domestic violence. This would enable courts to make orders protecting these animals, which would safeguard their welfare and ensure that people with whom they live who are also experiencing domestic violence can escape without worrying about the fate of their animals. Further, it would convey the seriousness of animal cruelty, and might increase support for and awareness of programs for re-homing abused animals, and training of people involved with animals to identify and report animal abuse.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43974428","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: 4
Religious Freedom and Job Security 宗教自由和工作保障
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/fnzf5790
Joellen Riley Munton, T. MacDermot
{"title":"Religious Freedom and Job Security","authors":"Joellen Riley Munton, T. MacDermot","doi":"10.53637/fnzf5790","DOIUrl":"https://doi.org/10.53637/fnzf5790","url":null,"abstract":"Debate on the need for new anti-discrimination laws to address religious discrimination continues in Australia. Claims for greater protection for freedom of religious expression present particular challenges for employers who bear responsibilities to maintain psychologically safe and healthy workplaces for all their employees. The present ‘general protections’ against discriminatory treatment in the Fair Work Act 2009 (Cth) do not adequately deal with complaints of discrimination, largely because of the ease with which employers can excuse adverse action on the basis of their own workplace policies. However, the proposals in the Religious Discrimination Bill 2019 (Cth) go too far in seeking to address that weakness. We propose that an alternative model for balancing the respective interests in workplace disputes of this kind would be expanding the workplace bullying and unfair dismissal jurisdictions of the Fair Work Commission, to enable these kinds of conflicts to be managed in a proportionate and balanced manner.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42255500","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
Misuse of Power in the Australian Charities Sector 澳大利亚慈善部门滥用权力
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/oole6882
Rosemary Teele Langford, M. Webster
{"title":"Misuse of Power in the Australian Charities Sector","authors":"Rosemary Teele Langford, M. Webster","doi":"10.53637/oole6882","DOIUrl":"https://doi.org/10.53637/oole6882","url":null,"abstract":"Charities are an essential part of Australian civil society and make fundamental contributions to social cohesion and well-being, as well as to the Australian economy. Public trust and confidence in the sector has, however, been damaged by high profile governance failures, despite the advent of a new national regime overseen by the Australian Charities and Not-for-profits Commission. This article draws attention to gaps in the regulatory frameworks applicable to Australian charities in relation to misuse of charitable assets and makes reform suggestions. Strengthening the charities sector by deterring and sanctioning such misuse more effectively is important in order for the law to hold those who govern and control charities to account and to ensure that such power is not misused.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49429908","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
Legal Unreasonableness: In Need of a New Justification? 法律不合理：需要新的理由吗？
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/wopx7767
J. Boughey
{"title":"Legal Unreasonableness: In Need of a New Justification?","authors":"J. Boughey","doi":"10.53637/wopx7767","DOIUrl":"https://doi.org/10.53637/wopx7767","url":null,"abstract":"Over the past decade, the High Court of Australia has made significant changes to the administrative law ground of unreasonableness, yet has given few indications of what values and functional considerations precipitated this shift. This is not unusual. The High Court has a reputation for preferring rules-based reasoning to values-based reasoning in administrative law (and beyond). But this does not mean that values and functional considerations are not important in shaping, and in explaining, the new legal unreasonableness test. This article analyses the changes that have occurred in unreasonableness – both in rhetoric and in application – and seeks to illuminate what this says about, and means for, Australian administrative law values. It explores the return, in the rhetoric of some judges, to relying on abuse of power as a justification and threshold for unreasonableness, and argues that other administrative law values better explain the new legal unreasonableness test.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42742591","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
Minister for Home Affairs v Benbrika and the Capacity of Chapter III of the Commonwealth Constitution to Protect Prisoners' Rights 内政部长诉本布里卡和《联邦宪法》第三章保护囚犯权利的能力
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/wwjh7374
Andrew Dyer
{"title":"Minister for Home Affairs v Benbrika and the Capacity of Chapter III of the Commonwealth Constitution to Protect Prisoners' Rights","authors":"Andrew Dyer","doi":"10.53637/wwjh7374","DOIUrl":"https://doi.org/10.53637/wwjh7374","url":null,"abstract":"Protect Prisoners’ Rights Author Andrew Dyer In recent cases in which prisoners have used Chapter III of the Commonwealth Constitution to challenge draconian legislation, the High Court of Australia (‘HCA’) has deployed formalistic reasoning when rejecting their claims. The latest such case was Minister for Home Affairs v Benbrika (‘Benbrika’), where a majority upheld the continuing detention order scheme created by Division 105A of the Criminal Code Act 1995 (Cth), essentially on the basis that imprisonment is not necessarily punishment. Judges should never use such reasoning to avoid striking down laws that breach Chapter III. When they do so, they fail properly to hold power to account. However, the result in Benbrika seems largely justified. Judges are rightly cautious about using Chapter III to strike down punitive laws; and, as Edelman J showed, the Court in Benbrika could exercise restraint without resorting to formalistic evasion. His Honour correctly acknowledged that the HCA has only a limited ability to protect unpopular minorities.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44962033","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: 2
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