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VOLUME 47(2)

 

Retreating to the History of Judicial Review? 

MARK ARONSON

Less than a decade ago, the High Court said, in effect, that State Supreme Courts have substantially the same entrenched jurisdiction to issue relief in the nature of the prerogative writs as the Constitution confers on the High Court. The New South Wales Court of Appeal reads this narrowly, holding that only three specific remedies are protected, together with the rules and limitations that existed at federation. If correct, we might see the emergence of two bodies of doctrine, the old law of remedies and the new law of ‘judicial review’ (a concept that emerged only after federation). In an unrelated case, six High Court judges implied a limited privative clause ousting non-jurisdictional certiorari. The seventh judge said that this was unnecessary, because in his view, that branch of certiorari conflicts with judicial review fundamentals, is historically misconceived, and should apply only where the reviewing court can try the matter afresh. This article reviews these developments, discusses their rationales and questions both the history and its importance.

Reconceiving Judicial Office Through a Labour Law Lens 

ALYSIA BLACKHAM 

Judges fulfil a fundamental constitutional role in democratic systems. Most research on judges, though, focuses on the public and constitutional significance of the judicial role, not the needs of individual judges. This article applies a labour law lens to help reconceive the judicial role in a way that balances the individual and collective needs of judges with the institutional and constitutional needs of the third arm of government, drawing on comparative analysis of Australia and the United Kingdom, and examples from common law countries. I argue that, while some progress has been made towards using labour law to structure and inform judicial roles, labour law offers new insights into how judges and judicial work might be supported. This may both assist judges in their individual capacity and support the judiciary as an institution. It therefore has significance for judges as individuals and the judiciary’s fundamental constitutional role.

Getting Rid of Risky Foreigners: Promoting Community Protection at the Expense of Administrative Justice? 

PETER BILLINGS 

This article offers a critical analysis of the norms, policy, procedures and outcomes associated with contemporary decision-making under the ‘character test’ per Migration Act 1958 (Cth) s 501. Of late there has been a steep increase in the number of visa refusals and cancellations on adverse character grounds due to the convergence of a reformulated character test and single-minded, authoritarian, administration by ministerial office-holders. This article teases out the significant and, arguably, adverse consequences for the quality of administrative justice of ministerial control over visa decisions absent independent administrative review. It is argued that the integrity of ministerial decision-making and the legitimacy of outcomes are dubious. This is because the process of identifying and balancing the important countervailing community interests and individual (human) rights, in the course of reaching the preferable decision, does not appear to be carried out in a detached, proper and genuine manner, pursuant to rational and intelligible reasoning processes. In conclusion, when viewed holistically, the judicial decisions analysed in this article suggest that the unwavering pursuit of community protection has come at a significant adverse cost to administrative justice and, necessarily, to individuals/families who bear the harsh consequences.

Moral Hazard, Path Dependency and Failing Franchisors: Mitigating Franchisee Risk Through Participation 

JENNIFER L L GANT AND JENNY BUCHAN 

Employment relations are well understood. Business format franchising is a newer and rapidly evolving business expansion formula, also providing employment. This article compares the fates of employees and franchisees in their employer/franchisor insolvency. Whereas employees enjoy protection, franchisees continue to operate in conditions that have been described as Feudal. We identify the inherence of moral hazard, path dependency and optimism bias as reasons for the failure of policies and corporations laws, globally, to adapt to the franchise relationship. This failure comes into sharp focus during a franchisor’s insolvency. We demonstrate that the models of participation available to employees in the United States, Australia and the United Kingdom could be used to inform a re-balancing of the franchisees’ relationship with administrators and liquidators during the insolvency of their franchisor, providing franchisees with rights and restoring their dignity.

Crowd-Sourced Equity Funding in Australia  A Critical Appraisal 

AKSHAYA KAMALNATH AND NUANNUAN LIN 

This article reviews the equity crowdfunding law and practice in Australia. It argues that a light regulatory approach for issuers and investors is required to ensure that crowd-sourced equity funding (CSEF) is attractive enough to both investors and issuers. At the same time, it argues that regulation focused on preventing and detecting fraud is essential for CSEF to be successful. The article therefore recommends that caps on the amount each investor can invest are not desirable and, instead, suggests other means of safeguarding against fraud, like the use of whistleblower programs, investor education and reliable dispute resolution mechanisms, in addition to what the legislation provides.

Finding the Foothold: Freedom of Political Association in the Australian Constitution 

GEOFFREY MILANI AND ELIZABETH HANDSLEY

The High Court has not definitively explained the legal status of the constitutionally implied freedom of political association since its existence was first raised in 1992. Tajjour v New South Wales affirmed the majority view that any constitutional protection enjoyed by political association is derived from the freedom of political communication; or, in the words of the Court, a ‘corollary to’ that freedom. In this article, we argue that the High Court should acknowledge the freedom of political association as a free-standing freedom rather than a corollary of political communication. The reasoning that gave rise to the implied freedom of political communication can also be applied to political association. The Court’s approach to the implication of freedom of communication, of building on the text of ss 7, 24 and 128 of the Constitution and the structures they establish, does not appear to be at odds with the implication of freedom of association. Consequently, we argue the Court has erred in favouring the corollary form of political association (pt IV). The corollary freedom has not been justified and appears either entirely unnecessary (being subsumed by political communication) or overly subjective in application. By contrast, the free-standing freedom could adopt the well-established Lange test of validity with only minor adjustments and therefore represent only a modest development of existing jurisprudence.

 

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