Abstract 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.

Abstract 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.

Abstract 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.

This article tracks the development of liquor laws in the Northern Territory, considering their impacts on Aboriginal justice outcomes and possible areas for reform. Noting the putative trade-off between health and justice outcomes, it examines the Northern Territory National Emergency Response Act 2007 (Cth), the Stronger Futures in the Northern Territory Act 2012 (Cth) and the 2022–23 Liquor Act 2019 (NT) amendments. Under the most recent Liquor Act amendments, the sale, possession and consumption of alcohol remain restricted in prescribed areas, which must determine the future of their liquor laws by 28 February 2027. This article proposes that greater investment is required to support Aboriginal leadership throughout this decision-making process. Indeed, a central proposition of this article is that the failure to adequately consult Aboriginal communities has been a shared feature of all three laws, and a fundamental barrier to improving Aboriginal justice. Reflecting on the interaction between Aboriginal and non-Aboriginal legal systems, this article identifies issues in the current policies that risk replicating the shortcomings of previous laws, thereby failing to empower Aboriginal leadership or improve Aboriginal justice services.

Abstract The Immigration Assessment Authority (‘IAA’) provides the final merits review mechanism for people seeking asylum by boat in Australia. For fast-track applicants, the outcome of IAA review is incredibly significant, with consequences ranging from resettlement in Australia, removal to an applicant’s country of origin or indefinite immigration detention in harsh conditions. Eight years since its introduction, this article asks whether the IAA has realised the goal of promoting efficient review whilst meeting other important administrative objectives. The article takes a novel approach, applying a pre-formulated theory of administrative justice to analyse whether the IAA has balanced administrative justice properties. In so doing, this article offers a unique lens to critically reflect on the role of the IAA and whether, once its mandate is ended, this new model of review should be abandoned or revived for future merits review of asylum claims.

Abstract Ghana’s Constitution has long emphasised the importance of equality, democracy, human rights and development. These principles are entrenched in a separation of powers framework that includes independent constitutional bodies that operate semi-autonomously from the tripartite executive, legislative and judicial branches. As part of a symposium on so-called ‘fourth branch’ institutions that provide redress for poverty and inequality, this article explores two institutions: the Commission on Human Rights and Administrative Justice and the National Development Planning Commission. The first is a 30-year-old national human rights institution, which monitors and investigates alleged violations of human rights, corruption and the misappropriation of public moneys, and provides redress, partly through its increasing focus on economic and social rights and the claims of the most vulnerable, including women, children and persons with disabilities. The second, currently executive body, is the subject of current calls for constitutional reform in Ghana. These reforms would entrench national development planning to enhance features of autonomy, technical capacity and partisan independence. As such, these proposals offer a distinctive and yet also paradigm-defying model of fourth branch arrangements in developmental constitutionalism, raising questions about the usurpation of policymaking and the deficits of democracy that are commonly raised against courts, international financial institutions or other international economic arrangements.

Abstract We contend that, contrary to mainstream understanding, the Australian Constitution provides a meaningful framework for ensuring economic justice, by virtue of its conferral upon the Commonwealth Parliament of particular legislative powers, namely the income justice and taxation powers. We draw on Rawlsian political theory, together with constitutional theory including recent work on constitutional directive principles, to explain how a constitution, and specifically the Australian Constitution, can impose requirements upon the political order independently of its operation as a legal instrument whose legal meaning is interpreted and applied by the courts. We use this novel account of the relationship between political and legal constitutionalism to establish the consequences, for each branch of government, of this constitutional requirement to secure economic justice. This includes a defence, from the perspective of political as well as legal constitutionalism, of the constitutionality of laws imposing retrospective taxation.

Abstract The Constitution of South Africa, 1996, is committed to redressing poverty and inequality. This is evident in its inclusion of a range of justiciable socio-economic rights along with a strong substantive right to equality and non-discrimination. The South African Human Rights Commission is a state institution established by the Constitution to support constitutional democracy. It has wide-ranging powers to investigate, monitor and protect human rights, including an express constitutional mandate in relation to socio-economic rights. This article examines how it has sought to apply its constitutional and legislative mandates to various manifestations of poverty and economic inequality in South Africa. It focuses on three broad areas of the Commission’s work with a view to identifying its achievements as well as some of the key challenges it has faced. Based on this analysis, the article concludes by reflecting on the broader implications of the experience of the Commission for fourth branch institutions, specifically national human rights institutions, that apply a human rights lens to poverty and economic inequality.

Abstract According to laboratory federalism, federal systems can promote governmental innovation and experimentation, while containing the risks of innovation to only one jurisdiction. However, it is unclear whether these benefits are realised in practice and whether states are actually effective ‘laboratories’. This article evaluates the extent to which laboratory federalism is occurring in practice, focusing on a case study of age discrimination law in Australia. Drawing on related ideas of democratic experimentalism; legal doctrinal analysis of age discrimination law in the Australian states and territories, and at the federal level; and qualitative expert interviews with 66 Australian respondents, I map the potential and limits of laboratory federalism in advancing age equality. I argue that, in this particular context, the benefits of experimentation may be outweighed by the resulting difficulties of enforcing age discrimination law, exacerbating inequality in practice. The federal structure has led to a confused and confusing patchwork of legal regulation. There is therefore a need for stronger federal structures to facilitate mutual learning and better realise the benefits of laboratory federalism.

Abstract Australia appears to be following the trend in mainly Western countries of recognising animal sentience in the law. This article sets out a typology of animal sentience recognition provisions that have been enacted, or have been proposed, in Australian jurisdictions to date. These include provisions or proposed provisions located in statutory objects, statutory principles, statutory definitions and a treaty. Depending on legislative context, these provisions, and proposed provisions (if enacted), may have different legal consequences. The trend towards legally recognising animal sentience may also signal further positive legal reforms for animals in the future.