Gabrielle Appleby

Scrutinising parliament's scrutiny of delegated legislative power

ABSTRACT Delegation of legislative power to the Executive occupies a unique place within the constitutional division of power. As a matter of necessity, efficiency, responsiveness, and a desire for increased participation from industry, delegation of legislative power is common but surprisingly under-theorised and under-studied. For decades in Australia it has been the domain of the Parliament to determine the appropriate exercise and level of scrutiny for delegated legislative power. But the constitutional landscape may be changing. In the 2012 decision Williams v Commonwealth (No 1), the Australian High Court indicated a greater willingness to scrutinise more robustly the performance of Parliaments supervisory functions. Against the background of the Courts new interest in responsible government, we argue that the current parliamentary practice of review of the exercise of delegated power is unable to achieve robust accountability. Informed by the High Courts jurisprudence in Williams (No 1) and the theories of responsible government and separation of powers, we suggest reforms that will ensure Parliament is meeting its constitutional duty of calling the Executive to account to it and, ultimately, the people.

Civility, gender and the law: critical reflections on the judgments in Monis v The Queen

Law sets the bounds of civility within any given society. Setting those bounds so as to reflect evolving community expectations and understandings requires frank, open and inclusive discussion. Through an analysis of the male and female judgments in the recent High Court decision of Monis v The Queen (2013) 249 CLR 92, this article exposes a worrying, uncritical endorsement of incivility in public and political discourse that may undermine the inclusivity and therefore value of this discussion. The case provides an opportunity for reflection on the nature of political discourse within the Australian system and more particularly on the role of gender in setting the standards of that discourse.

'To Watch, To Never Look Away': The Public's Responsibility for Australia's Offshore Processing of Asylum Seekers

The article argues that the duty of the people extends beyond simply choosing their representatives at periodic elections. Individuals in a political community must be engaged with the decisions of their representatives between elections, scrutinising the creation, implementation and outcomes of the policies pursued in their names. The article posits a public ‘duty to watch’ that requires the provision of information by government institutions adequate for the public to assess and take responsibility for policy in its full complexity. The final part of the article then identifies how the duty to watch has a constitutional basis, requiring the disclosure of information about the actions of Australian Commonwealth officers, or those being funded by the Commonwealth in an official capacity.

Australian Federalism: Past, Present and Future Tense

At its inception, the Australian federation was informed by a rich set of ideas about the nature of federalism, and a strong acceptance of both its necessity and its benefits. Today, over one hundred years later, this necessity and those benefits are under question – by Australian politicians, business leaders, professionals, academics and, most importantly, the Australian people. In this chapter, we maintain that federalism necessarily has a future in Australia, but it will only have an effective future if it is reformed and the reform is both well-informed and coherently designed. We argue that that only by paying attention to federalism’s benefits – and not just its deficits and problems – can we expect reform proposals to have the coherence and political attractiveness needed for them to be implemented in practically effective ways. By bringing together eminent lawyers, economists and political scientists to analyse and evaluate the Australian federal system in comparative perspective, this book seeks to contribute to the explanation and development of the theory and principles underpinning of the Australian federal system, as well as the practical realities in which it operates, and in this way to help build the impetus for sensible, measured, coherent and effective reform.

Constitutional Dimensions of Law Reform

In Australia, law reform occurs in the shadow of limits imposed by the Constitution. This chapter engages with two aspects of the relationship between law reform and constitutional limits. First, how do constitutional limits influence parliaments’ consideration of law reform proposals? Second, what law reforms are needed in order to allow parliaments to engage in proper deliberation about constitutional limits?

Justice Ginsburg, President Trump, and the need for judicial disqualification reform

As the heat of the 2016 election campaign between Donald Trump and Hillary Clinton was dialling up, US Supreme Court Justice Ruth Bader Ginsburg made a surprise – and arguably unprecedented – inter...

Pride and prejudice: a case for reform of judicial recusal procedure

ABSTRACT Justice must both be done and be seen to be done. A legal principle designed to give effect to this fundamental proposition is that a judge must not sit to determine a dispute if he or she is biased, or if there exists a reasonable perception that he or she is biased. Across many common law jurisdictions – including the UK, Australia, Canada, New Zealand and many jurisdictions in the United States – the judge in question himself or herself is required to undertake the assessment of whether bias, or an apprehension of bias, exists. Drawing on insights from behavioural psychology and a series of case studies from across these jurisdictions, this paper offers an extended analysis of this practice and identifies and evaluates alternative proposals.

Horizontal accountability: the rights-protective promise and fragility of executive integrity institutions

ABSTRACT An identifiable trend of modern Australian administrative law has been the increase of ‘integrity’ institutions. Such institutions sit notionally within the executive branch, but are provided statutorily protected independence from the government and have statutory mandates to hold the exercise of government power to account. While the general accountability function of such institutions is well known and documented, this article explains their specific role in protecting against rights-infringement by government. However, the constitutional status of these institutions means they are vulnerable in myriad ways to executive attacks on their independence and thus their ability to fulfil their accountability and rights-protective roles. Through a series of case studies, this article explores the extent and dimensions of this vulnerability and offers a number of recommendations to go some way to address it.

Functionalism in Constitutional Interpretation: Factual and Participatory Challenges: Commentary on Dixon

In The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term, Rosalind Dixon argues that a functional approach to constitutional interpretation offers the Australian High Court a ‘promising middle path between the extremes of pure formalism and pragmatism’. 1 A functional approach, she argues, would introduce greater transparency and predictability into the Court’s constitutional jurisprudence. Dixon embraces the foundational realist proposition that judges must, in some cases, resort to evaluative judgment. According to Dixon’s thesis, this discretion should be informed by substantive constitutional values derived from the text, history and structure of the Constitution. This, however, doesn’t resolve the question of unrestrained judicial choice. Constitutional provisions are capable of being interpreted as promoting different foundational values;2 values may intersect and even conflict. Dixon argues that judicial discretion remains constrained because such tensions can be resolved by reference to the potential consequences of a particular interpretation and an investigation into which outcome will best achieve the fulfillment of the constitutional objectives. Dixon’s functional approach thus requires a much larger factual matrix to be considered by the Court than currently occurs in most constitutional litigation.3 Dixon encourages parties to litigation to change and orientate their practice accordingly.

A Spotlight on Judicial Regulation in Australia

(2014). A Spotlight on Judicial Regulation in Australia. Legal Ethics: Vol. 17, No. 2, pp. 299-312.