Abstract Evidence that gender-based pay inequity is higher when pay is secret has led governments to prohibit pay secrecy clauses and give employees the right to discuss and disclose their pay. However, the effectiveness of regulations prohibiting pay secrecy may be constrained by social and organisational norms that preclude discussion of pay, including employee fears of the implications of pay transparency. This article provides insights from interviews with 32 employees and managers from a large Australian financial services company, revealing that perceptions of pay transparency are shaped by organisational rules, social norms, trust in the employing organisation, and fear of the repercussions of knowing pay is unequal. The implications for the effectiveness of the pay transparency measures in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) are discussed.
Abstract The international education sector is Australia’s largest service-based export industry, making a significant contribution to our economy. International students also provide valuable labour during their stay in Australia and many become skilled migrants post-graduation. However, the current student visa conditions that limit international students’ capacity to undertake work are also inhibiting their successful transition into graduate employment and their ability to secure permanent residency. They are required to navigate contradictions between the restriction on the number of hours of work they can undertake as an international student, and pathways to permanent residency, which are linked to the performance of work, following graduation. As a consequence, international students may be incentivised to breach their visa conditions and accept low skilled and poorly paid work after graduation. These incentivised choices contribute to poor employment outcomes for international student graduates, which risks undermining the international education industry. This article explores the nexus between work and education for international students studying in Australia, and the consequences of contradictory approaches to work in the student and residency visa schemes. It contends that addressing these factors would go some way to enabling international student graduates to secure work commensurate with their education and skill level, which would benefit international students, the higher education sector and the economy at large.
Abstract Royal commissions are the most prestigious form of Australian public enquiry with important investigative, fact-finding, policy-making and truth-telling functions. It is no coincidence that Australia has had three royal commissions in the last five years into the care and support sector. This ground-breaking article is the first to compare the final reports of the Victorian Mental Health and Commonwealth Aged Care and Disability Royal Commissions to analyse the systemic problems in each sector and the recommended reforms. It provides a useful overview of each commission and how the three reports intersect with each other. The article identifies seven interconnected themes which recur across the three commissions: (i) difficulty accessing services and supports; (ii) a lack of choice and control; (iii) negative social attitudes and discrimination; (iv) the overuse of restrictive practices; (v) an undertrained and underpaid workforce; (vi) problems with oversight and complaints processes; and (vii) chronic under-funding. It also sets out the different approaches to reform in each report which should arguably be adopted across all three sectors. Finally, it provides an update about government implementation of each report. Given the dire state of the care and support sector, the problems highlighted by the seven themes require urgent attention.
This article considers international standards of indigenous self-determination and self-governance rights exercised through establishment of indigenous representative institutions. In doing so, this article examines necessary processes of engagement a State should implement, that includes Indigenous people in the design, development, and maintenance of their own representative institutions so that they can function effectively. This article also considers how national indigenous representative institutions have been established and maintained in Australia and Canada given both chosen jurisdictions share similar colonial experiences yet have different formal legislative arrangements in place for Indigenous institutional representation at a national level. It then considers how, given their differing circumstances, those institutions in each jurisdiction work effectively and in partnership with the State. Ultimately, this article canvasses both the advances and limitations that Indigenous peoples of Australia and Canada have experienced with seeking to legislatively implement internationally recognised Indigenous rights within their State’s legal system. In doing so, this article seeks to highlight the lessons that can be learned from both jurisdictions’ experiences and emphasise the importance of achieving better outcomes for Indigenous peoples through a state’s implementation and support of self-governance and self-determination rights.
This article examines the adoption of voting methods designed to support individuals with intellectual disabilities in elections. It focuses on two widely used approaches, frequently explored in scholarly discourse: assisted voting and proxy voting. Both of these voting methods rely on third-party involvement and therefore require the consideration of the prohibition of plural voting in the Australian Constitution. The article concludes that while assisted voting and a limited form of proxy voting-where the proxy must strictly follow the elector’s explicit instructions-are constitutional, proxy voting becomes unconstitutional if the elector is unable to communicate their electoral judgment. Assisted voting therefore emerges as the most practical and constitutionally compliant option.
The creation of the Administrative Review Tribunal represents a critical redesign of Australia’s federal administrative review system. In this article, we draw on a novel dataset from the Kaldor Centre Data Lab to question the government’s justifications for retaining separate codified procedures and other restrictive rules for the new tribunal’s migration and protection jurisdictions. Our data analysis reveals that historically, there is no evidence that the codification of procedures increases the efficiency or certainty of decision-making. This approach may in fact have the opposite effect, contributing to both inefficiencies and unfairness for applicants. The government’s decision to retain separate procedures for migration and protection applicants represents a missed opportunity and may undermine the new tribunal’s objectives.
A ‘dialogue model’ of a bill of human rights has been enacted under Australian Human Rights Acts in the Australian Capital Territory, Victoria and Queensland. This model includes obligations imposed on public authorities or public entities to act compatibly with human rights (substantive obligation) and to give proper consideration to relevant human rights (procedural obligation). Reviews of compliance with these ‘conduct obligations’ have proven the most successful avenue in human rights litigation to date. This article examines the conduct obligations through the lens of four recent significant judicial review cases – Thompson v Minogue (2021) 294 A Crim R 216, Davidson v Director-General, Justice and Community Safety Directorate (2022) 18 ACTLR 1, Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250, and Johnston v Carroll; Witthahn v Wakefield; Sutton v Carroll [2024] QSC 2. The article critiques two issues: (1) the substantive obligation and judicial rejection of the concept of weight and latitude being granted to a decision-maker; and (2) the procedural obligation and judicial rejection of proportionality factors as mandatory relevant considerations. It concludes that, despite these contestable issues, the jurisprudence has reached a certain level of maturity and relative consistency.
Medical practitioners are among the people with a refugee or asylum seeker background to whom Australia has granted sanctuary. Yet, as the media has reported, refugee doctors (as we refer to them for convenience in this article) are often employed in low-skilled roles, rather than continuing their medical careers in Australia. Provided it is established that they are safe and competent to practise medicine, it would benefit refugee doctors, but also the community if they obtain legal entitlement to do so; Australia is presently facing major shortages of medical practitioners in certain geographical locations and fields of practice. The researchers in this study conducted semi-structured interviews with ten refugee doctors to explore their experiences in navigating the pathways for international medical graduates (‘IMGs’) to attain registration to practise medicine from the Medical Board of Australia. The study identified that refugee doctors encounter substantial challenges in this regard. A comparative analysis of the findings of this study with those of previous research reveals that, while IMGs frequently face barriers, certain obstacles appear to be unique to refugee doctors’ experiences. This article recommends specific reforms to address them.
This paper examines the role of interviews in Australian protection visa decision-making, arguing that while not a statutory requirement, interviews are often constructively required to ensure procedural fairness and achieve reasonable satisfaction. The analysis explores the evolution of departmental policy from an initial presumption favouring interviews to a more exceptionalist approach driven by administrative efficiency. It argues that this shift creates tension with the underlying legal framework and risks legal error. Analysis of key cases such as Plaintiff S157/2002, Saeed , and Chen , alongside departmental policy, suggests that failure to make obvious inquiries or engage with applicants directly, particularly regarding credibility, can constitute jurisdictional error. The paper calls for balanced procedures that identify when interviews are necessary while maintaining efficient processing.
This article maps out and evaluates the rise of ‘Deliberative Rights Theory’ (‘DRT’), a novel field of human rights analysis drawing on ideas from deliberative democracy. Deliberative democracy addresses dilemmas such as how deliberative and democratic inputs into public decision-making can each be influential, without either one dominating the other. This is especially apt for human rights, as settling complex and contentious rights cases (eg on COVID-19 vaccination, internet speech or assisted dying) calls for both technical deliberation and democratic input. There is an acute risk of noncompliance with – or even backlash against – rights decisions that lack either type of input. DRT’s normative strand of research explores conditions for uncoerced interactions between diverse participants in rights decision-making (eg ‘reasoned persuasion’, ‘epistemic diversity’ and ‘temporal deferral’). These conditions allow for an ‘integration’ of both deliberation and democracy in the course of decision-making about rights. This relatively nuanced and promising answer to the deliberation-democracy dilemma helps to account for DRT’s rising prominence. By contrast, ‘strategic’ approaches expect participants to leverage their status or power to push for outcomes they favour. The article contends that strategic approaches implicit in many existing rights theories cannot solve the deliberation-democracy dilemma, but rather allow one type of input (deliberative or democratic) or one type of institution (eg a court or legislature) to dominate. A further, institutionalist strand of research addresses how to realise DRT’s high normative ideals. The article suggests that court-focused rights models are frequently inadequate. Newer approaches, such as the mini-public model increasingly prominent in deliberative democracy, can best integrate democracy and deliberation for rights decision-making.
This article reconsiders the method of constitutional interpretation employed by the Australian High Court, in light of the lack of formal amendments to the Australian Constitution. The Court eschews any power to change the meaning of the Constitution, including to keep pace with contemporary needs and values. That is in large part because section 128 of the Constitution vests power in the people and their representatives to change the Constitution – and thus it is said, it would be undemocratic for the Court to change the Constitution for them. But section 128 has fallen into desuetude: constitutional referendums are rare, and rarely succeed. This requires a reassessment of the values served by the interpretive method of the High Court, though this article concludes that this method remains normatively sound. It does serve democracy – though only in a thin sense of that term. More importantly, it preserves the institutional legitimacy of the High Court.
Judges’ role in adjudicating constitutional human rights is frequently criticised as undemocratic, fuelled by recent United States Supreme Court judgements on abortion, gun rights and the environment. But human rights of those without political power are insufficiently protected by decision-makers accountable only to majorities. This paper develops a model of human rights adjudication which enhances democracy rather than detracting from it. Human rights disputes should not be determined through bargaining, which reflects the power of different interests, but through ‘value-oriented’ reasoning, where parties adduce reasons aiming to convince others, while remaining open to persuasion. This is the essence of deliberative democracy. However, this is not open-ended deliberation. Although human rights are abstract, requiring further interpretation in particular contexts, they establish a ‘realm of meaning’ setting the boundaries within which deliberation can occur. This is bounded deliberation. Courts should enhance deliberative democracy by requiring decision-makers to demonstrate that they have addressed human rights questions in a value-oriented manner, rather than reflecting political, numerical or economic power. This includes ensuring a variety of perspectives and that marginalised voices are taken seriously. The paper uses examples from different jurisdictions, including India, South Africa and the US, to demonstrate the possibility of this model.
Deliberative mini-publics are decision-making bodies that provide technical instruction to a set of randomly-selected citizens, who then deliberate over public policies. Mini-publics have long seen use across a range of policy areas globally. The appeal of using mini-publics lies in their integration of democratic and deliberative inputs, which can enhance the legitimacy of policy decisions and may even help to settle deeply divisive public debates. Yet whether mini-publics can be adapted to the adjudication of human rights remains an open question. This article provides the first general empirical evaluation of this question. It finds, first, an expanding set of bona fide deliberative mini-publics adjudicating rights disputes, on subjects from hate speech to Covid-19. However, a second and more complex analysis considers whether mini-publics can conduct the deliberations necessary to adjudicate rights disputes. Some theoretical commentary assumes that they can, given that rights adjudication requires factual or value-based analyses, to which lay citizens seem well suited. The article indeed finds evidence to support this conclusion, providing proof-of-concept that mini-publics can adjudicate rights disputes effectively. However, support for the conclusion is conditional: how well mini-publics invoke key rights doctrines depends on the nature of support and information provided to lay participants.
‘Deliberative Rights Theory’ evaluates what deliberative democratic scholarship can contribute to the constitutional question of how to protect fundamental rights and freedoms. That scholarship primarily focuses on what occurs within the legislature, judiciary and citizen assemblies to test the relationship between deliberation and rights. This article argues that what occurs within federalism can also significantly influence rights deliberation and thus should be part of the conversation. The article explores federalism’s effect on rights deliberation through two case studies from the COVID-19 pandemic. The first considers Australia’s decision to close its international border and the way federalism influenced discussion and debate on the right of citizens to return to the country. The second considers Canada’s decision to end the ‘Freedom Convoy’ against vaccination mandates and the way federalism affected discussion and debate on the right to protest. The article concludes by considering some directions for future research on the topic.
Ryan Goss has criticised the habit of Australian lawyers to use the terms “parliamentary sovereignty” or “parliamentary supremacy” when describing the nature of the legislative authority of their parliaments. He objects that, because no Australian parliament has unlimited authority, the use of these terms is incoherent or at least very confusing, and serves no useful purpose. This article aims to rebut his criticisms, by showing first, what Australian lawyers mean when they talk about their parliaments having sovereignty or supremacy within limits; secondly, what aspect of sovereignty or supremacy can meaningfully be said to exist, given the many limits to legislative power in Australia; and thirdly, why such talk continues to be useful. I will also show that such talk is not an odd Australian idiosyncrasy; it was first adopted by eminent British judges in the late Nineteenth Century, and can be found throughout the British Commonwealth and even in the United States.
Within the Australian Federation to what extent is the Commonwealth Parliament prevented from ‘conscripting’ or ‘commandeering’ State officers for its own purposes? Drawing on the history of commandeering both in the United States and in Australia, this article explores the constraints on the formulation of any Australian-based doctrine in light of recent High Court jurisprudence. This article argues that while the practical scope of any Australian-derived doctrine has been curtailed by the High Court, there is a role for it to play as a ‘per se’ breach of the Melbourne Corporation principle. But to have that effect, its ambit must be confined to situations where there is (i) an administrative duty imposed on (ii) a state statutory office holder or statutory body, where (iii) this has not been acquiesced to by the relevant state legislature or contemplated by the Constitution.
Proof is a fundamental problem facing those who experience discrimination in the workplace. Statutory discrimination law in Australia typically relies on an individual claimant proving their case, without a shifting burden of proof. Using age discrimination as a lens to facilitate analysis, and drawing on innovative findings from a multi-year, mixed methods empirical study of the enforcement of age discrimination law in Australia and the UK, this article offers the first empirically-informed assessment of what difference a shifting burden of proof would make to Australian discrimination law. It argues that while a shifting burden of proof may be important in finely balanced cases, and should be adopted for that reason, it is insufficient to overcome the limits of individual enforcement, and the dramatic information disparities between workers and employers. It offers important additional strategies or tools that might also help address the problem of proof, to better advance equality.
Strong constitutionalism usually conceives rights as instruments for protecting people. The problem with this conception is that it generates legal alienation, since it views people as passive recipients of protection, which is an exclusive matter for the state and, ultimately, for judicial review. In contrast, deliberative constitutionalism gives people an active role in deliberating about rights, among themselves as well as between them and the state. However, despite the development of deliberative constitutionalism, it is not yet clear what this view of rights requires of judicial review. Accordingly, this contribution to the Federal Law Review's symposium issue on deliberative rights theory argues for deliberative judicial review, which is a form of judicial review that, by respecting and promoting democratic deliberation, offers better protection of rights, as well as greater impartiality and legitimacy. In support of this argument, the article first makes explicit that the guide that should orient judicial review is not deference or activism but rather democratic deliberation. Next it states that, from this guide, a form of judicial review should be inferred that is not merely substantial or merely procedural, but rather semiprocedural. It then argues that, notwithstanding contextual turns, weak constitutionalism or non-final judicial review combined with channels of social dialogue offers a better institutional basis for deliberative judicial review than strong constitutionalism or final judicial review. Finally, it concludes that deliberative judicial review respects and contributes to articulating rights without legal alienation, i.e. through dialogue among all potentially affected persons.
Civil penalties were introduced into the corporations legislation in 1993. They were seldom used initially. Only 14 civil penalty actions were commenced by the corporate regulator in the first six years. Over the past three decades, the civil penalty regimes which the Australian Securities and Investments Commission (‘ASIC’) enforces have significantly expanded. To understand the impact of these changes, the authors analyse a dataset of all ASIC’s civil penalty actions that were finalised for the 10-year period from 2013 to 2022. Based on this analysis, the authors argue that civil penalty actions have now become a very significant part of ASIC’s enforcement strategy. The authors also discuss other aspects of ASIC’s use of civil penalties, including ASIC’s success rate in this type of litigation, the characteristics of the defendants, the most common claims made by ASIC in civil penalty proceedings and the orders most often imposed by the courts. The authors identify possible reasons for their findings.
AbstractThis article begins with a simple question: why are the damages awarded to victims of sexual harassment so much lower than damages awarded for those defamed by false allegations of sexual harassment? This article undertakes a comparative analysis of the underlying rationales for awarding damages in the doctrines of sexual harassment and defamation, tracking the historical reasons why sexual harassment damages have traditionally been so low compared to other doctrines. Then, it directly analyses two cases which awarded some of the highest damages in their respective doctrines: Rush v Nationwide News Pty Ltd and Hughes v Hill. This analysis reveals how the ongoing effect that traditional factors inhibiting sexual harassment damages, such as gender stereotyping and the requirement to medicalise damages, results in ongoing discrepancies in the damages awarded between both doctrines. This article suggests a simple solution: applying similar rationales for assessing damages in defamation to sexual harassment decisions.
