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VOLUME 47(4)

 

The Integrity of State Courts under the Australian Constitution

PATRICK EMERTON

The well-known Kable decision, and the line of authorities to which it has given rise, derives a doctrine of the integrity of state courts from Ch III of the Australian Constitution. The basis for this doctrine, however, as well as its meaning and extent, remains contentious. This article articulates a coherent basis for the Kable doctrine, which both reveals it to rest on a genuine implication arising from the text of Ch III and contributes to an understanding of the content of the doctrine. The method that the article adopts to achieve a rigorous grounding of the Kable doctrine is predominantly theoretical, combining three philosophical approaches: a speech-act analysis of the relevant constitutional provisions, the semantic externalist theory of reference developed by Putnam and Kripke and a sociological understanding of institutions (including legal institutions) along the lines developed by Selznick. As the Kable doctrine is one of the fundamental components of contemporary Australian public law, showing that it is not merely a product of judicial invention in pursuit of desirable policy, but rather is genuinely grounded in the text of the Constitution, is important for establishing not only the legitimacy of the doctrine itself but the legitimacy of that larger body of law.

All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia

Evelyn Douek

In 2015, a majority of the High Court of Australia incorporated structured proportionality testing into Australian constitutional law for the first time, but the test’s suitability for Australian law has been contested ever since. The recent case of Clubb is an ambivalent result for the test’s advocates: while structured proportionality testing now seems to have the support of a solid majority of current members of the High Court, the dissentients seem as strongly opposed as ever and continue to be vocal about the test’s unsuitability for Australian law. This article surveys the three main criticisms levelled against structured proportionality in Australia: that it is too indeterminate, that it involves judges transgressing the separation of powers, and that it is inappropriate in the unique context of the implied freedom of political communication (‘the freedom’). There are reasons why these critiques of structured proportionality carry particular weight and resonance in Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But these reasons are also why adoption of structured proportionality is consistent with Australia’s constitutional commitments and jurisprudence. The question of whether structured proportionality is beneficial needs to start with the question of ‘compared to what?’ Many of the criticisms levelled against structured proportionality apply all the more forcefully against the prior test of whether the legislative measure is ‘appropriate and adapted’ to serve a legitimate end. And the inherent commitments of proportionality make it better suited to Australian law than the increasingly proposed alternative of a categorical approach. The particular method of judicial reasoning in cases concerning the freedom might seem like a highly abstract and theoretical question, especially when the justices applying differing methods largely agree on the merits in the relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The project of making reasoning more transparent and constrained is significantly undermined by uncertainty as to whether and how the test will be applied at all. There are also second-order effects in the form of institutional costs. In the context of the freedom, where judicial review has long been controversial, the division of the Court into pro- and anti-structured proportionality factions has particularly high costs to institutional integrity and legitimacy. At some point there will be a question of whether the damage of warring judgments over method outweighs the damage done by choosing even the ‘worst’ of the available options. This article argues that structured proportionality is not that ‘worst’ option

Parliamentary Disqualification for Financial Conflicts

GRAEME ORR

When should financial interests bar someone from election to or service in Parliament? This article critically analyses the case law on the Constitution’s provisions on pecuniary interests and offices of profit. These cases are seeing the High Court sculpting new law out of old stone. The article is structured both chronologically and thematically, and explores the case law’s litigational and political context, and its relationship to pecuniary interest registers, as well as its jurisprudential value. Ultimately, the Court is found to be grappling with—and somewhat at sea in — fixing workable and consistent purposes for the constitutional provisions, especially given the need to fit these provisions within the broader values of parliamentary and electoral law and practice. The article concludes by assaying and proposing reform options.

ADF Offensive Cyberspace Operations and Australian Domestic law: Proprietary and Constitutional Implications

HYWEL EVANS AND ANDREW WILLIAMS

An Australian Offensive Cyberspace Operations (OCO) capability has emerged as an important sub-component of national power. While significant academic literature exists concerning OCO’s place within the international law of armed conflict, and international law in general, literature regarding domestic law is scarce. Nevertheless, an understanding of the domestic law governing the Australian Defence Force’s (ADF’s) authority to conduct OCO is necessary as the gap in the research potentially exposes the Government and individuals to legal risks that are not well understood. The aim of this article is to analyse the proprietary and constitutional implications of ADF OCO to inspire further research at a time when the Comprehensive review of the legal framework governing the National Intelligence Community is underway. The qualitative research analyses statutory and case law authorities to argue that Australian proprietary and constitutional law creates important implications for ADF OCO. The analysis suggests that these implications oblige the Commonwealth to be careful in balancing its legislative and executive power to provide the ADF with the legal authority to conduct OCO. The research finds that OCO impinges upon the proprietary rights of others, requiring legal authority which, if created under statute, generates an obligation to compensate proprietors under just terms. However, if the authority arises under the executive power, then the obligation to compensate may not apply. Further, such executive powers may exist under a royal war prerogative. As a corollary, we suggest that in an escalated conflict environment, the ADF may be able to conduct OCO without any legislative amendments to the criminal law although express immunities would be preferred.

Health Practitioner Regulation: Has the National law Produced National Outcomes in Serious Disciplinary Matters?

JEANI MILLBANK

Since 2010, a national scheme regulates the registration, accreditation and discipline of health professionals in Australia (the ‘National Law’). This research examines disciplinary cases from tribunals nationwide to address the question: Has the national regulation of health professionals produced consistency in outcomes in serious cases of professional misconduct? All publicly available Australian tribunal-level decisions concerning complaints of serious misconduct and/or impairment brought against the five most populous regulated health professions (nurses and midwives, doctors, psychologists, pharmacists and dentists) were analysed for the period from 1 July 2010 to 30 June 2017. Each case was coded by reference to a typology of misconduct, practitioner characteristics and outcome, allowing for comparisons to be drawn both as between the professions and as between jurisdictions. Major disparities were identified in outcomes across the professions, with doctors being subject to less severe outcomes than other professions, in particular in comparison with nurses, even when the same main head of misconduct was in issue. Marked disparities were also identified between outcomes in different states and territories, suggesting that the National Law is not being applied in a uniform manner. This article examines these disparities and explores possible contributing factors.

The Citation Practices of the High Court of Australia, 1905-2015

RUSSELL SMYTH AND INGRID NIELSEN

We provide an empirical study of the High Court’s citation to case law and secondary sources at decade intervals between 1905 and 2015. We document trends in the number and type of citations over time, both for the Court as a whole and for the individual Justices. We find that in each of the sample years between 1905 and 1975, the Court cited relatively few authorities and for most of this period the majority of citations were to the Court’s own previous decisions or to decisions of the English courts. However, over the last four sample years—1985, 1995, 2005 and 2015—the Court cited more authority. The Court cited an increasing proportion of its own previous decisions over this period as well as a higher proportion of authority from a more diverse range of sources, including secondary sources, largely at the expense of citations to English cases. We conclude that this reflects the emergence of a distinct Australian common law with the High Court as its final arbitrator.

 

A Giant Problem: The Influence of the Chicago School on Australian Competition Law, Economic Dynamism and Inequality

ADAM TRIGGS AND ANDREW LEIGH

Australia has a competition problem: there is not enough of it. Our industries are concentrated. Our markets show signs of weak competition. The way Australia’s courts, parliamentarians and regulators think about competition is partly to blame. Although it has been less influential in Australia than in the United States, the Chicago School’s views on competition have shaped our laws, policies and enforcement practices. The Chicago School views market concentration as a virtue more than a vice. The School contended that barriers to entry are negligible, market power is temporary, most mergers are good, vertical restraints and predatory pricing are either benign or efficient. The growing body of research and experience, however, shows that the Chicago School’s faith in the ability of markets to self-correct and deliver competitive outcomes was misplaced. There is a strong progressive case for repositioning how we think about competition. Focusing more on the competitive process, the structure of markets and the incentives those structures create for firms will play an important role in reducing inequality.

 

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