This article analyses how governments across Australia and the world have employed ‘soft law’ in their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of voluminous, complex and everchanging public health orders, executive officials have utilised a variety of non-legal soft law instruments to inform the community of their rights and obligations. These instruments are beneficial — especially in a public health crisis — as they are comprehensible, adaptable and effective. However, their non-legal nature also presents significant accountability issues which challenge the Australian conception of the separation of powers. Soft law exists independent of any parliamentary authorisation or oversight. Subsequently, those affected by soft law lack almost any ability to challenge its use in court. To remedy such issues, this article recommends a greater role for administrative complaint mechanisms (such as Ombudsman recommendations and discretionary payment schemes) in combatting abuses of soft law. It further suggests that the limited adoption of two foreign doctrines — substantive legitimate expectations and epistemic deference — into Australian judicial review could aid in addressing this dilemma.

In this article, we seek to delineate the nature of India’s ongoing constitutional struggles against a grave crisis, considering the threat that such crisis poses to the functioning of the country’s constitutional democracy. Using the acceptable definitive models of such a crisis, we then try to examine the extent to which India’s constitutional struggle might have been necessary in order to confront such a crisis. The role played by the deliberate usage of the legal and prima facie constitutional routes to render the very spirit and safeguards of the constitutional system redundant, or the concept of autocratic legalism, as a singular symptom displayed by such a crisis, is focused upon in this context. We draw analogies from multiple jurisdictions with myriad political legacies, including the USA, Poland, Hungary, Turkey, Russia and the Latin American nations. Increasing the judicial burden to cripple the adjudicating machinery; appointment of judges exhibiting specific political inclination; emergence of a charismatic political leader commanding mass support — the potential impact of these factors on liberal constitutionalism is examined. The article delves into the Indian narrative, citing instances from the past such as the Nehruvian legacy of superseding the judiciary as watchdogs of constitutional values, emergency and relevant constitutional amendments, as well as from the present, such as abrogation of special status of Indian states like Jammu and Kashmir, introduction of national population register and modification of citizenship norms, passing contentious legislation via the Money Bill route to avoid close scrutiny and constitutional debates, reservation on economic grounds and introducing new tax structures impinging on the federal relationship. We assess the role played by the Indian judiciary in each of these instances, along with instances of judicial (pro)activism, and their impact on the overall stability of the judicial institution.

Liberal democracies have struggled recently with protecting freedom of speech and assembly during the COVID-19 pandemic. This is an old, general problem in new, specific guise. In Australia, the Supreme Court of New South Wales has been exercising a statutory jurisdiction to ‘authorise’ or ‘prohibit’ proposed public assemblies for 40 years. This article offers the first sustained analysis of the Court’s jurisprudence. After describing the operation of the statutory permit scheme and systematising the case law, this article critiques the Court’s jurisprudence from the perspective of free speech and freedom of assembly. It then argues that there is a puzzle at the heart of the legislative scheme: the conferral of a wide discretion the exercise of which produces a narrow legal order. This puzzle suggests that the legal effect of an authorising or prohibiting order does not exhaust its broader social significance.

This article provides the first comprehensive study of statutory definitions of ‘journalist’ and ‘journalism' in Australian law and proposes a preferred definition of journalist by reference to statutory aims, bedrock legal principles and broader scholarship. It begins with a review of existing literature on the meaning of ‘journalist' in the modern media landscape, before turning to Australian law. A qualitative survey of legislation identified 11 textually different definitions of the term ‘journalist’ across 18 separate statutes, and a single definition of ‘journalism’. Examination of the statutory contexts, purposes and framing of these definitions reveals they are comprised, broadly, of six ‘approaches’. These approaches are critically analysed against a novel five-part thematic framework, with particular attention given to whether journalists should be defined by reference to ethical codes and responsibilities. The article concludes by identifying a preferred definition of journalist capable of informing law reform across a wide-variety of areas of law, including protections for press freedom, journalistic access to information, shield laws and whistleblower protections.

In this article, we examine the controversial national security law enacted by the People’s Republic of China for the Hong Kong Special Administrative Region in June 2020 and consider how this law interacts with two constitutional struggles that Hong Kong has experienced since its return to Chinese sovereignty in 1997. The first of these is a struggle over preserving rule of law principles protected in Hong Kong’s regional constitution, the Hong Kong Basic Law and international treaty obligations. The second is a struggle for democratisation, pursuant to constitutional commitments in the Basic Law. We argue that the national security law severely damages Hong Kong’s much-vaunted rule of law, as well as its ability to govern itself as a (relatively) liberal-democratic enclave within China. It muffles contestation over rule of law and democratic principles through facilitating rule by fear as a key modality of governance. The national security law expands the state’s coercive powers, and has the capacity to intimidate well beyond the letter of its provisions by creating rules and mechanisms to suspend legal protections altogether. Its provisions serve to reinscribe political discourse that has long been mainstream in Hong Kong as deviant. But at least as much as the NSL’s actual provisions, it is the loss of judicial scrutiny and the possibility of being transitioned into the Mainland legal system that operationalise rule by fear.

Race, religion and royalty (the Three ‘Rs’) have been salient aspects of Malaysia’s constitutional struggle. These elements have defined the country’s constitutional settlements during the pre-independence constitution-making process, generated constitutional crises and continued to figure into day-to-day governance and constitutional practice. There have been instances where operation of and compromises around the Three Rs have facilitated constitution-building. Yet, more often than not, as this article illustrates, the constellation of these three forces have challenged the building and sustaining of a constitutional democracy. Since the historic political change in May 2018 in particular, the Three Rs have become even more significant in shaping the critical junctures in Malaysia’s constitutional journey. To illuminate a more comprehensive understanding of the role of race, religion and royalty in Malaysia’s struggle for constitutional democracy, this article explains how these elements have defined (and continued to define) controversies relating to the distribution of political power and the protection of fundamental rights. Fundamentally, these aspects implicate checks and balances and constraints on political power. This article also demonstrates the ways in which the struggle for constitutional democracy implicates a range of actors and interests: aside from individual citizens, there are the monarchy, the elected government, the courts and group (ethnic) interests. This article then draws on institutional and political explanations in accounting for Malaysia’s constitutional struggle. In particular, aside from changing political fundamentals, it argues that the Constitution provides the opportunity structure and institutional resources for the Three Rs to shape Malaysia's struggle for constitutional democracy.

This article examines the 2020 decisions of the High Court on constitutional law through the lens of the Communist Party Case, taking the 70th anniversary of that decision as an opportunity to reflect on the ongoing utility and efficacy of the constitutional principles it espoused. It focuses on the way in which constitutional meaning may be informed by ordinary legislation, the common law and the rich backdrop of principles and values against which the Constitution was drafted — particularly, the rule of law. In doing so, the article highlights enduring questions about the scope of the High Court’s power to remedy those deficiencies in the Constitution that reveal themselves over time.

This article addresses a gap in the scholarly literature on the legal regulation of temporary labour migration by tracing the legislative history and regulation of work visas for short stay specialists and occupational trainees. By reason of their acute temporariness, both short stay workers and occupational trainees could be regarded as having a migration status that makes them vulnerable in their work relations. In addition, this vulnerability means they may accept terms and conditions that undercut domestic labour standards. Although the detailed legislative tracing of both visas reveals various attempts to re-regulate both visas in favour of greater scrutiny of employer requests for overseas labour, tightening access requirements and increasing enforcement and monitoring capacity, these have been largely incapable of preventing instances of egregious exploitation. These case studies on two little-known visas mirror the growing concerns around the integrity of Australia’s temporary labour migration program more generally and point to the myriad tensions, challenges and complexities inherent in the regulation of temporary labour migration programs around the globe.

Indonesia’s politics has changed dramatically during Jokowi’s administration. Numbers of scholars argued this situation turns to a ‘new model of authoritarianism’ or declining democracy. The situation is generally referred to as the strengthening of authoritarian politics. Meanwhile, in such situation, the role of the judiciary is the key to balancing power in authoritarian politics. However, in reality, efforts to encourage constitutional struggle through the judiciary will easily reverse the situation to lose its independence. The court could play a significant role in authoritarian politics. This phenomenon has been called the ‘judicialisation of authoritarian politics’. This article dissects how the process of authoritarian political institutionalisation through law and the courts has occurred in the two decades after Suharto’s reforms. Then it examines how civil society changes and the democracy movement have made it possible to advance constitutional rights in the context of Indonesia’s cartel politics and the judicialisation of authoritarian politics. The legal argument for such judicial practice is that authoritarianism has been increasingly institutionalised, facilitating oligarchy networks in a cartelised political system, so that law and the judiciary merely work to strengthen the chain of impunity.

International organisations emphasise how Governments around the world must use the public procurement process to aid a global drive to eliminate human trafficking in their supply chains. In this significant and original contribution, the authors examine a leading procurement model, the Australian Commonwealth Procurement Rules (CPR), for the purpose of examining whether the CPR model satisfies the necessary standards of Legal Certainty and Effectiveness for addressing the risk of trafficking occurring in public sector supply chains. The research generates new insights for countries seeking to tackle trafficking via public procurement systems and identifies pitfalls for countries to avoid if seeking to emulate the Australia CPR model, making appropriate reference to US and UK models where appropriate. The authors demonstrate how key elements of the CPR model fail to provide for the required degree of Legal Certainty and Effectiveness to tackle trafficking. System failure is demonstrated by analysis of the CPR, showing either how key CPR provisions fail to satisfy these 2 key tests, or because there is a complete absence of appropriate provisions to comprehensively deal with the risk of trafficking in public sector supply chains. This article should serve not only as a guide to countries yet to address human rights considerations in their public procurement supply chains, but also as a blueprint for countries around the world seeking to re-evaluate whether existingprovisions in their domestic procurement frameworks are fit to tackle the global scourge of trafficking in public supply chains.

This article interrogates Thailand’s struggle between two conflicting constitutional identities, the identities of Thai-ness and liberal democracies, by examining how the Constitutional court implicitly and explicitly formulates and utilises both identities in its decisions from 2014 to 2020. Our analysis of these decisions shows that, instead of negotiating or synthesising the competing identities as the literature on constitutional identity envisages, the Thai court adapts the generic liberal democratic identity to defend and reassert the incumbent dominant identity of Thai-ness. The court drains liberal constitutionalism of its intrinsic substance while tactfully preserving and then lending its global legitimacy to bolster the local identity of Thai-ness. As a result, the liberal democratic identity is manipulated and pulled to gravitate towards the opposite value of Thai-ness. This unequal co-option between the polarised identities, we argue, depicts the current constitutional struggle in Thailand and marks the unique identity of Thai-style constitutionalism.

This article extends current understandings of regulation of tertiary education, in particular, work experience undertaken by tertiary students, by contributing a ‘law in practice’ analysis of the effect of the existing regulatory regime on work integrated learning practice within Australian universities. It considers how Australian universities are responding to, implementing, or overlooking the formal regulatory framework regarding work experience placements. The analysis is informed by data gathered in a series of 68 semi-structured interviews conducted with individuals from 15 universities around Australia and provides unique insights into how Universities are acting as regulators in the broad sense of the word. Understanding the enforcement of educational regulation is important, because it is the only national tool directed to ensuring work experience opportunities afford real learning which will facilitate skills development and increase future employment opportunities and are equitable and safe for student participants.

This paper asks what the regulatory assessment of the novel processed meat analogue products reveals about the nature of food regulation in Australia. We analyse Food Standards Australia and New Zealand’s (‘FSANZ’) assessment of the recent application by Californian technology company Impossible Foods Inc to sell its proprietary burger products which contain a genetically modified protein that is said to make their burger ‘bleed’. We show that FSANZ’s assessment process has little capacity to engage with broader and longer term, social, ecological and public health implications of novel foods and changing food markets. FSANZ’s regulatory pre-approval process focuses almost exclusively on the safety of individual ingredients rather than the impact of novel foods on the food supply as whole and leaves broader issues to the market and consumer choice with limited support from laws addressing misleading labelling and marketing of foods. Extending the capacity of Australia’s regulatory regime for food to deal with more than the safety of individual ingredients will become more urgent as other novel foods, such as cell-based meats, enter the marketplace.

Sri Lanka has alternated between authoritarian politics and constitutional democracy over the past 70 years. For 25 years after independence, the country functioned as a constitutional democracy with regular elections and power alternating between the two main political parties. Since 1972, political elites have used constitution-making as a method of consolidating their hold on political power. In 2015, the 19th Amendment to the Constitution trimmed the powers of the President and provided for a balanced form of power-sharing between executive and legislature. It enhanced the independence of the courts and the fourth-branch institutions. However, these gains were reversed by the 20th Amendment, passed in 2020. Against the backdrop of an intense competition for political power and the manipulation of constitutions to retain power, this contribution discusses three recurring sites of constitutional struggle and debate in Sri Lanka: struggles over presidentialism, power-sharing and the place of Buddhism in the constitution. This paper contends that a return to constitutional democracy will require, at a minimum, a revisitation of the first two issues, even if the third — the place of Buddhism — remains untouched. The paper concludes by arguing that while all three constitutional struggles have a different historical trajectory and different dynamics, they are all part of a larger struggle — the struggle to transform Sri Lanka from a Buddhist-majoritarian state into a plural, multi-ethnic and multi-religious society in law and in practice.

This article integrates doctrinal and empirical legal research methods to evaluate manifestations of discrimination experienced by pregnant workers and develops proposals to strengthen labour law to better support working women. The article commences by mapping the framework of rights and protections currently applicable to pregnant women under the Fair Work Act 2009 (Cth) (‘FW Act’). It then analyses court decisions made under parts 3-1 and 3-2 of the FW Act that are relevant to pregnancy, which builds on the limited scholarship in this area. This is augmented by analysing the findings from a pilot study into the experiences of a group of pregnant workers in Victoria, which addresses an ongoing deficiency in the literature of the qualitative examination of workplace pregnancy discrimination. Scrutiny of the doctrinal and empirical data reveals the common manifestations and patterns of conduct that pregnant women experience at work. The article then considers how the rights and protections in the FW Act could be strengthened to better support pregnant women who experience unlawful conduct at work. It is argued that there are three critical gaps in the FW Act, which are leaving pregnant women vulnerable to detrimental treatment. Legislative reform proposals are formulated to address these gaps, of which the most pressing is to add pregnancy to s 65(1A) of the FW Act so that it comprises a ground on which employees can make requests for flexible working arrangements.