- 29 March 2012: CCCS seminar series
What’s the Story? The United Kingdom Supreme Court’s New Approach to Communications
Presenter: Richard Cornes
What is the United Kingdom Supreme Court’s story? What challenges does it face in getting its message out – both about what it has done in cases, but also more widely about its role? The paper rests on three propositions. First, that effective communication of the Supreme Court’s work (both to parties in a case, and more widely) supports judicial independence. Second, that the Supreme Court must develop a communications strategy wider than the traditional release of judgments in cases. Third, that while seeking to increase its public profile (one of the goals of top court reform in the UK), the Court must take care not to be perceived as a new active participant in partisan contests. This has been a delicate task for the UK Supreme Court since opening in 2009. To illuminate these matters the paper reviews innovations in the Court’s approach to communications, notes challenges the Court has faced in getting a clear message out, and finally, provides suggestions for further reforms to enhance its communications operation.
Richard Cornes is a Senior Lecturer in Public Law at the University of Essex, Associate Member of Landmark Chambers, London, Editor of Public Law’s International survey and a member of that journal’s editorial board.
- 8 May 2012: CCCS seminar series
Democracy, Liberty and Displacement of the Prerogative
Presnter: Ben Saunders, Research Fellow, Melbourne Law School
This seminar will explore the interaction between executive power and statute, by considering the approach the courts take to statutory displacement of the royal prerogative and the Commonwealth’s inherent executive power. A particular focus will be the extent to which courts give weight to contemporary ideals of the rule of law and human rights. It will be argued that, with some notable exceptions, the approach currently taken by the courts is defensible given the variety of circumstances in which displacement arises.
Ben Saunders is a Research Fellow at the Melbourne Law School, and is investigating the definition and regulation of Executive Power in Australia, under an ARC Discovery Project. He is also a PhD candidate at the University of Queensland, researching representative and responsible government under the Australian Constitution. Prior to starting at the Law School in 2010 Ben was an Associate at M+K Lawyers, practising in corporate, financial services and water law.
- 15 May 2012: CCCS seminar series
Models of Democracy and Modeals of Cnsitutionalism in Lation America
Presenter: Professor Javier Couso, Professor of Law and DIrector of the Constitutional Law Program, Universidad Diego Portales (Chile)
Models of democracy are hardly separable from models of constitutionalism. The model of democracy that a person embraces determines to a great extent the model of constitutionalism that she will adhere to. In the 1990s, there was widespread consensus throughout Latin America as to the virtues of liberal democracy and the model of constitutionalism prevalent in Western Europe, the United States, and other former British colonies. In recent years, however, some Latin American countries have diverged from that consensus and embraced different models of democracy, which have led them to adopt different models of constitutionalism. For example, Venezuela, Bolivia, Ecuador and Nicaragua have adopted radical forms of democratic rule—multiethnic democracy in Bolivia and Ecuador, and the so-called ‘Bolivarian democracy’ in Venezuela and Nicaragua— which may be incompatible with some core elements of the liberal democratic model of constitutionalism, such as judicial independence and full freedom of expression. The seminar will address these developments.
Javier Couso is Professor of Law and Director of the Constitutional Law Program at Universidad Diego Portales (Chile). He is a member of the Executive Committee of the International Association of Constitutional Law (IACL). He has been a Visiting Professor of Law at Bocconi University, Italy (2012); the University of Bologna, Italy (2011); the Instituto Tecnológico Autónomo de México (ITAM), 2011; and the University of Wisconsin at Madison (2006-2007). Professor Couso specialises in Comparative Public Law. Recent publications include, The Constitutional Law of Chile, Javier Couso et al. (Kluwer Law International, 2011); “Models of Democracy and Models of Constitutionalism: The Case of Chile‘s Constitutional Court: 1970- 2010,” Texas Law Review (2011); and Cultures of Legality: Judicialization and Political Activism in Latin America. (Cambridge University Press, 2010), Javier Couso, et al.
- 23 May 2012: CCCS and ERRN Seminar
Money in the 2012 American Presidential Elections
Presenter:Professor Richard Pildes,School of Law, New York University
The 2012 American presidential election has already seen an explosion not just in the amount of money being spent, but in the sources of that money and the new organizational forms that are quickly becoming dominant players in the electoral process. In particular, newly emergent organisations outside the formal political parties and the candidates’ campaigns known as “SuperPacs” have quickly come to be at least as important in raising and spending money as the parties and the campaigns themselves. These SuperPacs are a uniquely American phenomenon. Nearly all commentary on these new organizations treats their emergence as having caused by the Supreme Court’s controversial Citizens United decision, in which the Court held that corporations and unions have constitutional free speech rights to engage in unlimited electoral spending. This seminar will take issue with that view. Despite the fact that these entities emerged directly in the aftermath of the Court’s decision, Citizens United is not the reason these organizations have exploded onto the electoral scene. Professor Pildes will then explore the question of why, among those critical of the rise of SuperPacs, there is such a strong temptation to view Citizens United as the “root of all evil” in the financing of American elections.
Richard H. Pildes is the Sudler Family Professor of Constitutional Law, School of Law, New York University. He and his co-authors created the law of democracy as a field of study in the law schools, and his scholarship focuses on legal issues concerning the design of democratic processes and government, as well as constitutional, administrative,and national-security law. He is the author of more than 50 major academic articles and is the co-author of the casebook, The Law of Democracy and a co-editor of the book, The Future of the Voting Rights Act.
- 19–21 July 2012: CCCS Conference
Recent Developments in Constitutional Law
Thursday 19 July 2012
Speaker: The Hon. Nicola Roxon MP, Attorney-General for Australia
Friday 20 July 2012
Session One:The Executive in the Australian Federal System: The Search for a New Conception in the light of the Willliams v Commonwealth (The ‘School Chaplains’ Case)
Speakers: Professor Simon Evans, Melbourne Law School, Professor Michael Crommelin AO, Melbourne Law School
Chair: Professor Adrienne Stone, Melbourne Law School
Session Two: What is Left of Cole v Whitfield?
Speakers: Justin Gleeson SC, Banco Chambers, New South Wales Bar and Richard Niall SC, Melbourne Chambers, Victorian Bar
Chair: The Hon Justice Margaret Stone FAAL
Session Three: Freedom of Speech, Protest and Racial Vilification
Panel: Associate Professor Daniel Meagher, School of Law, Deakin University, Mr Steven Price, University of Victoria, Wellington and New Zealand Bar and Dr Sarah Sorial, Faculty of Law, University of Wollongong
Chair: Kristen Walker, Melbourne Chambers, Victorian Bar
Session Four: Constitutionalisation of Administrative Law
Speaker: Professor Cheryl Saunders AO, Laureate Professor, Melbourne Law School
Commentator: Debbie Mortimer SC, Melbourne Chambers, Victorian Bar
Chair: Kathryn Graham, Senior General Counsel, Office of General Counsel, Australian Government Solicitor
Book Launch: The Future of Australian Federalism:Comparative and Interdisciplinary Perspectives (Cambridge University Press, 2012)
Authors: Ms Gabrielle Appleby, University of Adelaide, Professor Nicholas Aroney, University of Queensland, Mr Thomas John, Commonwealth Attorney-General’s Department
Speaker: Roger Wilkins AO, Secretary, Attorney-General’s Department
Speaker: The Hon. Catherine Branson QC, President, Australian Human Rights Commission
Saturday 21 July 2012
Session Five: The Nationalisation of the State Court System
Speaker: Stephen McLeish SC, Solicitor-General for Victoria
Commentators: Professor Anne Twomey, University of Sydney and Associate Professor James Stellios, Australian National University
Chair: Professor Simon Evans, Melbourne Law School
Session Six: The Future of Rights Protection: Courts and Parliaments
Speakers: Harry Jenkins MP, Chair, Parliamentary Joint Committee on Human Rights, Professor Andrew Byrnes, University of New South Wales
Commentators: Ms Kylie Evans, Douglas Menzies Chambers, Victorian Bar and Associate Professor John Tobin, Melbourne Law School
Chair: Professor Cheryl Saunders AO, Melbourne Law School
- 9 August 2012: CCCS seminar series
Constitutions Inside Out: Outsider Interventions in Domestic Constitutional Contests
Presenters:Professor Rosalind Dixon, UNSW and Professor Vicki Jackson, Harvard Law School
Increased interactions among peoples and states combined with the growth of written constitutions are creating new opportunities for “extra-territorial” forms of constitutional interpretation, that is, the interpretation of domestic constitutions by “outsiders.” This article considers the potential benefits, and dangers, of outsider interpretation. It also identifies factors relevant to the appropriateness or legitimacy of such practices, drawing from analogous rules and doctrines developed in the context of U.S. federalism and international law
Rosalind Dixon is a Profesor of Law, at the University of New South Wales, Faculty of Law, having recently served as an Assistant Professor at the University of Chicago Law School. She earned her BA and LLB (with the medal in law) from the University of New South Wales, and was an associate to Chief Justice Murray Gleeson, before attending Harvard Law School, where she obtained an LLM and SJD. Her work focuses on comparative constitutional law and constitutional design, socio-economic rights and constitutional law and gender.
Vicki C. Jackson, the Thurgood Marshall Professor of Constitutional Law at Harvard Law School, writes and teaches in U.S. Constitutional Law, Comparative Constitutional Law, Federal Courts, Gender Equality and related topics. Her recent books include Constitutional Engagement in a Transnational Era (2010), Federal Courts Stories (with Judith Resnik) (2010), Inside the Supreme Court (with Susan Bloch) (2008); Comparative Constitutional Law (with Mark Tushnet) (2006). Her current works-in-progress include books or papers on the constitutional history of the U.S. Supreme Court’s federalism decisions, the intellectual foundations of proportionality analysis in public law, and the benefits of a pluralist approach in advancing gender equality.
- 16 August 2012: CCCS seminar series
Transnational Constitutionalism’s Problem with Constitutional Identity: Prospects and Pitfalls
Presenter: Professor Michel Rosenfeld, Cardozo School of Law, New York
Working nation-state constitutions depend for their meaning, coherence and integrity on the elaboration of a suitable constitutional identity which draws on the relevant nation-state’s national identity, culture and history but remains distinct from all of these. As widely discussed relating to a constitution for the European Union (EU), the prospects of transnational or global constitutionalism are questionable as formidable obstacles stand in the way of elaborating a common identity among the twenty seven EU member nation-states, each with its own constitutional identity, national identity, culture and history. By exploring how constitutional identity develops in national settings and how that may be adapted to transnational settings, Professor Rosenfeld will argue that a transnational constitutional identity is plausible and will focus on its likely key features.
Michel Rosenfeld is the Justice Sydney L. Robins Professor of Human Rights and director of the Program on Global and Comparative Constitutional Theory at the Benjamin N. Cardozo School of Law in New York City. He is the author of several books and is president of the United States Association of Constitutional Law, co-editor-in-chief of the International Journal of Constitutional Law (I*CON), and was president of the International Association of Constitutional Law (1999-2004). He was awarded the French Legion of Honor in 2004 and in 2007-2008 held an International Blaise Pascal Research Chair at the Ecole Normale Superieure in Paris, and in 2011, the Perelman Chair in Legal Philosophy at the Free University of Brussels.
- 6 September 2012: Book launch
Legal Protection of Religious Freedom in Australia by Professor Carolyn Evans, The University of MelbourneLaunched by: Father Frank Brennan, Australian Catholic University
The role and place of religion in Australia have become more contested and controversial in recent years. Law makers now have to chart a difficult course between the traditional legal practices and the realities of a new multi-religious Australia. This book examines the way in which the law protects (or fails to protect) freedom of religion or belief in Australia. Its first part considers the social, political, international and constitutional contexts surrounding religious
Professor Carolyn Evans is Dean of Melbourne Law School. Carolyn Evans has degrees in Arts and Law from Melbourne University and a doctorate from Oxford University where she studied as a Rhodes Scholar and where she held a stipendiary lectureship for two years before returning to Melbourne in 2000. In 2010, Carolyn was awarded a Fulbright Senior Scholarship to allow her to travel as a Visiting Fellow at American and Emory Universities to examine questions of comparative religious freedom.
Father Frank Brennan is a Jesuit priest, professor of law at Australian Catholic University and Adjunct Professor at the Australian National University College of Law and National Centre for Indigenous Studies. He was the founding director of Uniya, the Australian Jesuit Social Justice Centre. freedom. The analysis includes legal distinctions between religion and concepts such as race, ethnicity, culture and sincere belief; the carying legal definitions of religion; and the High Court’s narrow interpretation of Constitution s116, at odds with more expansive conceptions usede in international law and some other domestic legal systems.
- 19 September 2012: CCCS seminar series
The UK Experiment with Declarations of Incompatibility
Presenter: Dr Aruna Sathanapally, McKinsey & Co, London
Dr Aruna Sathanapally will be presenting the work captured in her upcoming book, Beyond Disagreement: Open Remedies in Human Rights Adjudication. Animated by an interest in institutional design for modern democracies, Dr Sathanapally’s research focuses on innovative approaches to the protection of human rights and the promotion of deliberative processes. Her book presents the first comprehensive legal and empirical study of the judicial use of, and political reactions to, declarations of incompatibility in the UK—a device that has inspired debates in Australia over legal protection for human rights. Dr Sathanapally will place this particular innovation in the context of a broader trend in comparative human rights protection of ‘open remedies’, and examine the operation and effectiveness of declarations of incompatibility, based on the now significant body of UK experience.
Dr Aruna Sathanapally is an Australian lawyer, originally from Sydney, who completed her masters and doctoral studies at Balliol College and the Centre for Socio-Legal Studies at the University of Oxford. She has worked as a legal adviser to Amnesty International and has advised on institutional design and regulatory affairs as a consultant at McKinsey & Co. in London.
- 20 November 2016: CCCS and ERRN Seminar
Party Political Funding in NSW (and Beyond?) – Can Human Rights be Deployed to Resist Dogmatic Liberalism’s Intolerance of Pluralistic Party Structures?
Presenter: Keith Ewing
Imagine a State where the governing party decided to re-write the law to liquidate the main opposition party. Or passed a law to render unlawful the existing structure of the main opposition party. Or changed the law to restrict the right of opponents to campaign against it at election time. Welcome to New South Wales. For all practical purposes the ALP has been declared unlawful as originally created. Formed by trade unions to give working people a political voice, the State has now decided that the ALP can no longer exist in its present form, a form that is an untidy mixture of individual and collective membership. Is this lawful? Can the NSW model of party funding law be adopted elsewhere in Australia? Are there parallels for such uses of State power elsewhere the liberal democratic world? Is it consistent with international human rights obligations? Does it matter? Are human rights relevant to democracy?
Keith Ewing has been Professor of Public Law at King’s College, London since 1989, having been employed previously at the Universities of Edinburgh and Cambridge. He is a frequent visitor to Australia, and has held positions at Monash, UWA, University of Queensland, University of Sydney, and the University of Melbourne, where he is currently visiting.
- 22 November 2016: CCCS and ART Public lecture
Integrity in Politics: The Power of Ideas
Presenter: The Honourable Lindsay Tanner
Widespread disenchantment suggests that public engagement with the political process is at its lowest ebb in decades. Lindsay Tanner has written extensively on the corrosive impact of entertainment media and political manipulation on our democratic process. He offers deep insights and thoughtful suggestions for reviving political engagement in Australia.
Lindsay Tanner is Special Advisor to Lazard Australia and Vice- Chancellor’s Fellow at Victoria University. From 1993 to 2010 he was Federal Labor MP for Melbourne, and from 2007 to 2010 he was Federal Minister for Finance and Deregulation.
The Accountability Round Table is a non-partisan group of citizens with diverse backgrounds (academics, lawyers, politicians, journalists, authors) who are gravely concerned with the current erosion of honesty and integrity of our democratic parliamentary and governmental processes.
- 8 October 2012: CCCS seminar series
The Elusive Constitutional Settlement of Sri Lanka’s Ethnic Crisis
Presenter: Dr Jayampathy Wickramaratne, President’s Counsel, Sri Lanka
Sri Lanka has both geographically concentrated and dispersed minorities. The majority Sinhalese are a minority in two Provinces. Reluctance to accommodate the minorities in State power and discrimination led to demands for federalism and finally to separatist violence. Sinhala and Tamil extremism aggravated the crisis. While Tamil separatists have been militarily defeated, the search for a political solution to the ethnic conflict continues with no immediate prospects of an agreement, due to extremist pressure and lack of political will. Compounding the situation are serious issues of governance, a strong executive presidency without effective safeguards and waning respect for the rule of law. Today, the resolution of the ethnic crisis has become a part of a wider struggle for democratic governance.
Dr. Jayampathy Wickramaratne, a legal practitioner from Sri Lanka, specialises in constitutional law and human rights. He is a President’s Counsel, equivalent to Queen’s Counsel. His doctoral thesis was titled “Fundamental Rights in Sri Lanka”. He was Senior Advisor, Ministry of Constitutional Affairs and a member of the team that drafted the Constitution Bill of 2000. Dr. Wickramaratne was a member of the panel of experts appointed by the President to service the All Party Representative Committee and was a signatory to the “majority report” which proposed a strong power-sharing arrangement as a solution to Sri Lanka’s ethnic crisis.
- 6 December 2012: CCCS seminar series
The Fiscal Compact, the “Golden Rule” and the Paradox of European Federalism
Presenter: Assistant Professor Federico Fabbrini, Department for Public Law, Jurisprudence and Legal History, Tilburg Law School
The paper analyzes the central provision of the recently enacted Fiscal Compact, which directs member states of the European Union (EU) to incorporate into their constitutions a “golden rule”, i.e. a requirement that yearly budgets be balanced. The purpose of the paper is to examine –by surveying the introduction of these pervasive budgetary constraints in four selected states (Germany, France, Italy and Spain)– the institutional implications that the “golden rule” has on the role of the political and judicial branches, both in the states and in the EU. The paper argues that, while the domestic effects of the “golden rule” are likely to vary from one state to another, the Fiscal Compact systematically enhances the powers of the EU institutions to direct and police the budgetary policies of the states, thus increasing centralization in the EU architecture of economic governance. The paper contrasts this development with the federal experience of the United States (US). In a comparative perspective, in fact, it appears that while most US states are also endowed with “golden rules” in their constitutions, the federal government never played a role in the adoption of these balanced budget rules and still today is barred from interfering with the budgetary processes of the states. In conclusion, the paper suggests that an unexpected paradox emerges in the new constitutional architecture of the EU: although in crafting the institutional response to the Euro-zone crisis state governments have repeatedly discarded a US-like federal model as being too centralized and centripetal for the EU, they have ended up establishing a regime that is much less respectful of state sovereignty than the US federal system.
Federico Fabbrini is tenure-track Assistant Professor of “European & Comparative Constitutional Law”. His main areas of research are federalism, fundamental rights, separation of powers, economic governance, and global constitutionalism, mainly in a comparative perspective between the European Union and the United States. On these topics he has published, among others, in the Oxford Yearbook of European Law, the European Constitutional Law Review, the Columbia Journal of European Law and the Georgetown Journal of International Law.
- Legal Theory Workshop
The Legal Theory Workshop series meets regularly to discuss unpublished works-in-progress on a variety of theoretical and normative issues in the law.
16 March 2012
Associate Professor Matthew Harding (University of Melbourne), “The Perfectionism of Charity Law”
Commentator: Dr Lael Weis (Melbourne)
30 March 2012
Dr Daniel Halliday (Philosophy, University of Melbourne), “Is Inheritance Morally Distinctive?”
Commentator: Mr Cameron Rider (Melbourne)
20 April 2012
Dr Jonathan Crowe (University of Queensland), “Law as an Artifact Kind”
Commentator: Dr Dale Smith (Monash)
4 May 2012
Professor Martin Krygier (UNSW), “Why the Rule of Law is Too Important to be Left to Lawyers”
Commentator: Professor Michael Crommelin
18 May 2012
Professor Margaret Davies (Flinders University), “Home and State”
Commentator: Dr Ann Genovese (Melbourne)
25 May 2012
Professor Vera Bergelson (Rutgers University), “Choice of Evils: In Search of a Viable Rationale”
Commentator: Dr Kevin Heller (Melbourne)
3 August 2012
Professor David Estlund (Brown – Philosophy), “Bad Facts”
Commentator: Dr Daniel Halliday (Melbourne – Philosophy)
10 August 2012
Dr Carlos Bernal-Pulido (Macquarie), “The Migration of Proportionality across Europe”
Commentator: Professor Cheryl Saunders (Melbourne)
24 August 2012
Dr Dale Smith (Monash), “Are Judges Opportunistic Interpreters?”
Commentator: The Hon. Justice Margaret Stone (Melbourne – Judge in Residence)
7 September 2012
Professor Heidi M. Hurd & Professor Ralph Brubaker (University of Illinois), “Debts and the Demands of Conscience: An exploration of the moral underpinnings of debt relief ”
Commentator: Commentator: Dr Jeannie Paterson (Melbourne)
5 October 2012
Professor Robyn Eckersley (Melbourne – School of Social and Political Sciences), “Does Leadership Make a Difference in International Climate Negotiations?: EU Normative Power versus G2 Emissions Power”
Commentator: Associate Professor Margaret Young (Melbourne)
12 October 2012
Professor Kim Rubenstein (ANU), “What is a ‘Real’ Australian Citizen? Insights from Papua New Guinea and Mr Amos Ame”
Commentator: Associate Professor Shaun McVeigh (Melbourne)
26 October 2012
Dr Arlie Loughnan (Sydney), “The Asymmetry of Responsibility and Non-Responsibility in Criminal Law”
Commentator: Associate Professor Jeremy Gans (Melbourne)