- 8 February 2013: Comparative Constitutional Law Expert Seminar
United States Constitutional Law for Australian Lawyers with Judge Albert M. Rosenblatt
Judge Albert M Rosenblatt delivered a one day Expert Seminar on the topic United States Constitutional Law for Australian Lawyers. Judge Rosenblatt was formerly a Justice of the New York Court of Appeals (the State’s highest court) and is currently a Judicial Fellow teaching constitutional law at New York University Law School. The seminar provided Australian lawyers with a grounding in fundamental principles of United States constitutional law and familiarity with the case law in selected key areas. The seminar was designed to be of particular interest to practicing lawyers and judges, though some academics were involved as well. The seminar addressed four areas of US constitutional law: “Federalism”; “Court, Judges and Judicial Review ”; “Takings Clause” and “Freedom of Speech”. The seminar included 17 an Australian constitutional lawyer as commentator on each topic who put the United States cases into some context and discuss points of similarity and difference between Australian and US law in the relevant area. The Hon. Ray Finkelstein QC, Stephen McLeish SC, Professor Michael Crommelin AO and Professor Adrienne Stone were among the commentators. The seminar was limited to 25 people and attendance was by invitation only with a dinner in the evening that followed.
Session 1: Courts, Judges, and Judicial Review
Commentator: The Hon. Ray Finkelstein QC
Session 2: ‘Takings’
Commentator: Stephen McLeish SC, Solicitor-General for Victoria
Session 3: Freedom of Speech and Expression
Commentator: Professor Adrienne Stone, Director Centre for Comparative Constitutional Studies
Session 4: Federalism
Commentator: Professor Michael Crommelin AO, Zelman Cowan Professor of Law, Melbourne Law School
- 28 February 2013: CCCS Seminar series
The Filibuster and Reconciliation: the Future of Majoritarian Lawmaking in the U.S. Senate
Presenter: Professor Tonja Jacobi, Northwestern University School of Law
In the United States, passing legislation has become a de facto super majoritarian undertaking, due to the gradual institutionalization of the filibuster – the practice of unending debate in the Senate. The filibuster is responsible for stymieing many legislative policies, and was the cause of decades of delay in the development of civil rights protection. Attempts at reforming the filibuster have only exacerbated the problem. However, a once obscure budgetary procedure known as reconciliation has created a mechanism of avoiding filibusters. Consequently, reconciliation is the primary means by which significant controversial legislation has been passed in recent years – including the Bush tax cuts and much of Obamacare. This has led to minoritarian attempts to reform reconciliation, particularly through the Byrd rule, as well as constitutional challenges to proposed filibuster reforms.
Tonja Jacobi is a Professor of Law at Northwestern University School of Law in Chicago. She specializes in judicial behavior and strategy in constitutional law and constitutional criminal procedure. Jacobi’s work combines social science and traditional legal methodologies – including doctrinal, empirical and formal analysis – to examine how judges respond to institutional constraints. Her constitutional work specializes in judicial behavior and strategy in public law, combining social science and traditional legal methodologies to examine how judges respond to institutional constraints, including separation of powers, hierarchical review, coalition formation and judicial role limitations. Her constitutional criminal procedure analysis addresses the flipside question of how judges attempt to shape the incentives of others, particularly the impact of behavioral assumptions that the Supreme Court has made in this area of law. We argue that the success of the various mechanisms of constraining either the filibuster or reconciliation will rest not with interpretation by the Parliamentarian or judicial review by the courts, but in the Senate itself, through control of its own rules. As such, the battle between majoritarian and minoritarian power in the U.S. Congress depends upon individual incentives of senators and institutional norms. We show that those incentives are intrinsically structured toward minoritarian power, due to: particularism, arising from the salience of localism; institutionalized risk aversion, created by reelection incentives; and path dependence, produced by the stickiness of norms. Consequently, filibuster reform is likely to be continually frustrated, as the 2012-2013 skirmish recently illustrated, and minority dominance will continue unless there is significant institutional change in Congress. Meanwhile, reconciliation will become increasingly central to lawmaking, constituting the primary means of overcoming obstructionism and delay in U.S. policy making and social reform.
- 12 March 2013: CCCS Seminar series
Constitution Making: Insights from the Latest Developments in Fiji
Presenter: Ciaran O’Toole, Fiji Programme Director, Conciliation Resources
Commentator: Professor Cheryl Saunders AO, Melbourne Law School
A round table discussion of the constitution development process in Fiji and the lessons that might be drawn from it. The presentation will cover: the process for constitution-making laid down by government decrees; the work of the Constitution Commission of Fiji, over a period of seven months, during which it received public submissions and created a draft constitution; the decision of the Government of Fiji to amend the Commission’s draft; and the pending meeting of a Constituent Assembly. The roundtable will consider the possible futures for this process and the opportunities and challenges for sustainable democracy in Fiji. Lessons that might be drawn from these events for constitution making processes elsewhere include: the challenges of constitution-making in the context of transition from military rule; the design of a two-stage constitution making process; the nature and purpose of public participation in constitution-making; and international involvement in constitutionmaking.
Ciaran O’Toole is the Fiji Programme Director for Conciliation Resources (CR), an international peacebuilding NGO based in London. CR works primarily with local people and organisations to help build peace, and has programmes in many conflict affected regions such as Central Africa, the Caucuses, Kashmir and the Philippines. Ciaran has spent over five years working on peacebuilding and governance in Fiji, initially with a local Fijian NGO, the Citizens’ Constitutional Forum before moving to join Conciliation Resources. (CR). Over the past twelve months, he has been heavily involved in the Fiji constitution development process, with CR providing considerable support in the setting up and managing of the Constitution Commission secretariat, while providing ongoing support to CR’s local civil society partners. Ciaran has been a visitor to Melbourne Law School since September 2012, as an associate of the CCCS.
Cheryl Saunders is a Professor of Law at Melbourne Law School, who has had intermittent involvement with constitution making in Fiji since the 1997 constitution making process. Much of her work in Fiji has been carried out in collaboration with the Citizens’ Constitutional Forum. Most recently, she delivered a public lecture in Suva on ‘The nature of a Constituent Assembly’ and participated on a panel of experts to provide advice on the Commission’s draft Constitution.
- 10 April 2013: CCCS Seminar series
The High Court on Free Speech: Offensive Letter Writing, Public Preaching and the Constitution
Presenters: Professor Adrienne Stone, Director, CCCS, Melbourne Law School and Associate Professor Daniel Meagher, Deakin University School of Law
In this seminar Adrienne Stone and Dan Meagher will review the High Court’s recent decisions in Monis v The Queen and Attorney-General (SA) v Corporation of the City of Adelaide, both delivered on 27 February 2013.
Adrienne Stone researches in the areas of constitutional law and constitutional theory. She has published extensively on freedom of expression, the legal and institutional questions surrounding bills of rights and on judicial method in constitutional cases. Her recent publications include The Comparative Constitutional Law of Freedom of Expression in Comparative Constitutional Law, (Rosalind Dixon, Tom Ginsburg, eds 2011); Structural Judicial Review and the Judicial Role in Constitutional Law (2010) 60 University of Toronto Law Review 109; Comparativism in Constitutional Interpretation  New Zealand Law Review 45 and ‘Judicial Review without Rights’ (2008) 28 Oxford Journal of Legal Studies 1. She currently holds an Australian Research Council Discovery Grant for a four year project entitled “Freedom of Expression in Democratic States”.
Dan Meagher is an Associate Professor in law at Deakin University in Australia where he teaches and researches in constitutional law, human rights law and statutory interpretation. He has undergraduate degrees in law and economics from Monash University and an LLM from the same institution. In 2007 Dan was awarded a PhD from the University of New South Wales for his thesis on the intersection between freedom of speech and the regulation of racist speech in Australia.
- 7 May 2013: CCCS Seminar series
Judicial Use of Comparative Constitutional Law in Bangladesh: Method, Benefits and Perils
Presenter: Associate Professor Ridwanul Hoque, Department of Law, University of Dhaka
Despite theoretical debates about whether judges may legitimately draw upon foreign sources while applying their respective constitution, crossfertilization of constitutional ideas in constitutional adjudication has come of age. South Asian appellate court judges do often engage in comparative constitutional studies, purportedly as a tool for increasing their agency. Post-colonial South Asian judiciaries not only exchange among themselves but also draw on other judiciaries, mostly from common law traditions including, in the case of the Bangladeshi Supreme Court, Australia. In this paper, by way of presenting some select constitutional cases, Associate Professor Hoque will review the use of comparative constitutional law by the Supreme Court of Bangladesh, in order to assess the style and methods of comparison as well as the benefits and perils of such use. Based on the view of distinction between constitutional rights and structural questions, Associate Professor Hoque will argue for a differentiated judicial use of foreign experiences while adjudicating issues of constitutionalism rather than constitutional rights. While adjudicating structural issues, the judges should read their respective constitution not merely as a text but as an integrated structure of long-standing values, and must weigh the probable damaging consequences of misplacing comparative constitutional laws domestically. Associate Professor Hoque will argue for a country-specific method of constitutional comparisons, which may help the judges avoid ‘invidious’ comparisons or the misuse of comparative law.
Dr. Ridwanul Hoque is Associate Professor of Law at the University of Dhaka. He formerly taught in the Department of Law at the University of Chittagong in Bangladesh. Dr. Hoque was a Commonwealth Scholar at the University of London's School of Oriental and African Studies where he studied for his Ph.D. in Comparative Public Law. He studied Law at the University of Chittagong for his LL.B. Honours and LL.M., and went to Cambridge where he studied for an LL.M. in International Commercial Law. He has published in British, American, Indian, and Bangladeshi law journals.
- 16 May 2013: CCCS and ALC Seminar
Judicial Loyalties: Assessing the Politicization of the Venezuelan Legal System
Presenter: Assistant Professor Raul Sanchez Urribarri, La Trobe University
Why do Courts fail to uphold the rule of law in weakly institutionalized democracies? In part, this is due to the nature of the relationship between judges and politicians. Judicial decision-making may be largely conditioned by individual commitments based on particularistic goals, instead of public policy objectives. This negatively affects the judiciary’s ability to become influential and assertive in the political arena, and impairs the beneficial ef fect of changes directed to empower the judiciary in developing democracies. Raul’s research explores this argument in the context of Venezuela before and after Hugo Chávez’s arrival in power. In this presentation, he will briefly explain the theory, and offer a discussion grounded on qualitative and quantitative empirical analysis of constitutional review decisions during the past two decades.
Raul Sanchez Urribarri is a Lecturer (Assistant Professor) in Legal Studies at the School of Social Sciences, La Trobe University (Melbourne, Australia). His teaching and research focus on judicial politics in comparative perspective, with an emphasis on Latin America. His work has been published in Law and Social Inquiry, The Journal of Politics, and edited volumes. He is currently writing a book on the politicization of courts through informal connections in developing democracies, covering Venezuela, Paraguay and Costa Rica.
- 28 June 2013: Symposia co-hosted with IILAH and CREEL
2012 and 2013 mark the respective 30th anniversaries of the High Court’s decisions in Koowarta and in the Tasmanian Dams case. Each of these cases is understood to represent a turning point in Australia’s legal-political history: a shift to a different form of political engagement on complex questions about race, and the environment; and a shift in what those engagements could signify, nationally, and internationally. Cumulatively, the cases are also understood as marking a decisive jurisprudential turn, a consideration of a different engagement by the Court with both international law and the politics of constitutionalism.
Institute for International Law and the Humanities (IILAH), the Centre for Comparative Constitutional Studies (CCCS) and the Centre for Resources Energy and Environmental Law (CREEL) hosted the second of the two separate symposia to commemorate these anniversaries. Turning Points: Remembering Commonwealth vs Tasmania (1983) 158 CLR 1 on 28 June 2013 and Turning Points: Remembering Koowarta v Bjelke-Petersen (1982) 153 CLR 16 which was held on 11 May 2012 at Melbourne Law School.
The aim of this symposium is to review and reflect upon the judgment, its context, and its interpretations; with insights from legal, political, historical, and autobiographical perspectives.
Symposium speakers explored a series of overlapping themes. From a legal perspective, the judgment raised clear themes about the interaction of constitutional and international law, the growth of federal power, constitutional meaning and constitutional change and the impact of those considerations on indigenous Australians. They explored dimensions of those themes from other perspectives, such as how questions about race and the environment operate in relation to each other; the nature of political activism in Australia, and transnationally, in the 1970s and 1980s; how and to what extent that activism turned political questions into legal questions; and how the local context of Tasmania, with its specific and different cultural and political history of state authority, race and the environment interrupts the expected historical and legal narratives of what Commonwealth v Tasmania is thought to signify.
Although held a year apart, ‘Remembering Commonwealth v Tasmania’ and ‘Remembering Koowarta’ placed the cases into conversation with each other for the first time, and as such opened new ways of approaching and writing about law’s authority and narratives as constitutive of an evolving Australian national identity into the 21st century.
By reflecting on these decisions separately but by drawing them into conversation through shared themes, this symposium offered new insights into the local, national and international readings of the cases.
- 25 July 2013: CCCS Seminar series
A Model of Legal Participation for Tribunal Users
Presenter: Gráinne McKeever, School of Law, University of Ulster
The speaker conducted two externally commissioned empirical research reports on the experiences of tribunal users in Northern Ireland, from 2010-12. The findings from this research feed into the existing research on access to justice for tribunal users in Great Britain, all of which evidence the intellectual, practical and emotional barriers faced by tribunal users in disputing decisions they disagree with and underline the importance of understanding and improving tribunal user experiences as a means of improving access to justice for tribunal users. Using this empirical research, the author explores how we can conceptualise the different forms of participation experienced by tribunal users and – drawing from Sherry Arnstein’s model of participation – uses the analogy of a ladder of participation to chart the different categories of participation that exist. Applying this analogy, the author suggests a range of operational indicators for each of the rungs of the ladder of participation as part of a process of addressing participative gaps, to enhance the tribunal user’s ability to access justice. This work reviewed in this seminar will be published in Public Law in July 2013.
Gráinne McKeever is a Senior Lecturer in Law and has published widely on issues of social security and social justice, focusing predominantly on social security fraud and access to justice for tribunal users. Gráinne is an Executive Director and Chair of Law Centre (Northern Ireland), a specialist not-for-profit legal advice organisation. She is Assistant Editor of the Journal of Social Security Law, an editor of Frontline: Social Welfare Law Quarterly and was sub-editor of the Bulletin of Northern Ireland Law from 1998-2011.
- 27 August 2013: CCCS Seminar series
Legislative Rights Review: The Perils of Constitutional Borrowing
Presenter: Professor Janet Hiebert, Department of Political Studies, Queen’s University
Bills of rights in New Zealand, the United Kingdom and Australia have incorporated a bold idea that originated in the Canada: the idea of conceiving a bill of rights as an instrument to alter the norms of legislative decision-making, by creating a new statutory requirement that p be accompanied by a statement outlining if they are not compatible with protected rights. The expectation was that this reporting obligation would force bureaucrats and cabinet to confront how government’s legislative agenda implicates rights, the desire to avoid parliamentary criticism and judicial censure would encourage the use of more compliant ways to achieve the legislative objective in question, and parliament’s increased attention to the rights-dimension of legislative bills would encourage parliamentarians to hold government to account for decisions that implicate rights. On its face, the marriage of a bill of rights with an expectation for legislative rights review envisages a potentially far reaching way of guarding against rights infringements by conceiving of rights protection in proactive rather than reactive terms, and by subjecting all government bills to a form of rights-based review, and not just the relatively small sub-section of legislation that is litigated and subject to judicial review. This idea that parliament should play a more central role protecting rights is particularly attractive for those who are concerned about whether rights are given due consideration and yet are sceptical about the virtue of court-centric bills of rights. However, proponents must guard against overly optimistic assumptions that the concept of legislative rights review will substantially transform political behaviour and practices. In borrowing and adapting this idea from one parliamentary system to the other, reformers and scholars have not paid sufficient attention to the significance of the political and institution setting in which this idea is situated, and the challenges that a Westminster-based parliamentary system presents for this idealistic vision of rights protection.
Professor Janet Hiebert has been teaching in the Department of Political Studies since 1991, having received a B.A. (Hons) from UBC in 1985, and an M.A. (1986) and a Ph.D (1991) from the University of Toronto. She is the author of two books about the Canadian Charter of Rights and Freedoms, Charter Conflicts: What is Parliament's Role? (McGill-Queen's University Press, 2002), and Limiting Rights: The Dilemma of Judicial Review (McGill-Queen's University Press, 1996), along with numerous papers and chapters on the politics of rights and on campaign finance laws in Canada. She is in the final stages of a manuscript with James Kelly, Parliamentary Bills of Rights. The Limits of Constitutional Engineering in New Zealand and the United Kingdom, which examines how the New Zealand Bill of Rights Act and the Human Rights Act impact on legislative decision-making.
- 26 September 2013: CCCS Seminar series
Why Modern Constitutionalism Rests on a Mistake (and what to do about it)
Presenter: Associate Professor Victor V. Ramraj, Faculty of Law, National University of Singapore
As understood in orthodox liberal constitutional theory, the main goal of modern constitutional law is to limit state power. In this presentation, Associate Professor Ramraj will explain why this understanding of constitutionalism is flawed and what we could do to rehabilitate it. Associate Professor Ramraj’s basic claim, which draws on his research for a larger book project, is that modern constitutionalism, in theory and practice, is unable to account for configurations of private power (particularly in the form of multinational corporations) that escape the regulatory reach of most nation-states, or for the rise of transnational regulatory bodies— whether intergovernmental, private, and hybrid (public and private). This presentation will briefly explore these developments before showing: (a) how they challenge the basic assumptions of modern constitutionalism and (b) how modern constitutional law has failed, in practice, to adapt to these transformations of transnational private and public power. Associate Professor Ramraj will then suggest how domestic constitutional law might adapt to these changes, both by claiming a non-exclusive public law role in the supervision of global regulators and by empowering non-state actors to engage in the regulation of global problems where states are unable or unwilling to do so.
Associate Professor Victor V. Ramraj is an Associate Professor in the Faculty of Law, National University of Singapore. He has qualifications in law (LLB, Toronto; LLM, Queen’s University Belfast) and philosophy (BA, McGill; MA, PhD, Toronto) and is a member of the Law Society of Upper Canada. He twice served as the NUS law school’s Vice-Dean for Academic Affairs (2006-2010, 2011-2012) and for one year, from 2010- 2011, as a co-director of the Center for Transnational Legal Studies in London. Before joining NUS, he served as a judicial law clerk at the Federal Court of Appeal in Ottawa and as a litigation lawyer in Toronto. His current areas of research include constitutional law and theory, emergency powers, globalisation, and legal history. He has edited and co-edited several books for Cambridge University Press, including Emergencies and the Limits of Legality (2009) and Emergency Powers in Asia: Exploring the Limits of Legality (2010). His scholarly work has been published in, among others, the Chicago-Kent Law Review, Hong Kong Law Journal, International Journal of Constitutional Law, International Journal of Law in Context, Singapore Journal of International and Comparative Law, Singapore Journal of Legal Studies, South African Journal on Human Rights, and Transnational Legal Theory. He is working on a book on the future of domestic constitutions.
- 11–12 October 2013: International Commission of Jurists (Victoria) & Centre for Comparative Constitutional Studies Joint Conference 2013
Human Rights and Democracy: Past Their Use-By-Dates?
Friday 11 October 2013
Session One: Keynote Speaker
Speaker: Paris Aristotle AM, Director of the Victorian Foundation for Survivors of Torture Inc. (VFST) & Executive Member of the Forum of Australian Services for Survivors of Torture and Trauma (FASSTT)
Chair: The Hon. Justice Elizabeth Hollingworth, Supreme Court of Victoria
Session Two: Constitutional Recognition of Indigenous Peoples
Speakers: Mark Leibler AC, Arnold Bloch Leibler, Dr Mark McMillan, Melbourne Law School and Professor Cheryl Saunders AO, Melbourne Law School
Chair: The Hon. David Harper AM QC, formerly Court of Appeal, Supreme Court of Victoria
Speaker: Libbi Gorr, 774 ABC Melbourne
Session Three: Federal Consolidation of Anti-Discrimination Laws
Speakers: The Hon. Ron Merkel QC, Victorian Bar and Professor Spencer Zifcak, Australian Catholic University
Chair: Glenn McGowan SC, Victorian Bar
Session Four: Statutory Human Rights Framework Review
Speakers: The Hon. Justice Debbie Mortimer, Federal Court of Australia and Dr Helen Durham, Australian Red Cross
Chair: Professor Adrienne Stone, Melbourne Law School
- 13–14 December 2013: I Con Symposium
Constitutionalism in Australia and New Zealand
Friday 13 December 2013
Presenters: Professor Claudia Geringer, Professor Cheryl Saunders AO and Professor Adrienne Stone
Session One: The Constitutional Significance of Settlement
Presenters: Dr Kirsty Gover and (as co-authors), Dr Carwyn Jones and Dr Mark McMillan
Session Two: Written and Unwritten Constitutions
Presenters: Professor Janet McLean and Professor Cheryl Saunders AO
Session Three: The Common Law Context
Presenters: Professor Jeffrey Goldsworthy and Professor Paul Rishworth
Session Four: Parliamentary Governemnt: Antipodean Adaptations
Presenters: Professor Nicholas Aroney and Professor Andrew Geddis
Saturday 14 December 2013
Session Five: The Absence of Constitutional Rights
Presenters: Professor Rosalind Dixon and Professor Claudia Geringer
Session Six: Constituional Identity and Political Culture
Speakers: Dr Elisa Arcion and (as co-authors), Dr Matthew Palmer and Professor Adrienne Stone
- 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.
8 March 2013
Dr. David Plunkett (Dartmouth, Philosophy), “Dworkin’s Interpretivism, Metalinguistic Negotiations, and the Pragmatics of Legal Disputes” (with Timothy Sundell)
Commentator: Dr Dale Smith (Monash).
22 March 2013
Professor Tonja Jacobi (Northwestern), “The Self-Stabilizing Constitution” (with Barry Weingast)
Commentator: Professor Cheryl Saunders (Melbourne)
12 April 2013
Professor John Tasioulas (UCL), “Human Dignity and the Foundations of Human Rights”
Commentator: Associate Professor John Tobin (Melbourne)
26 April 2013
Dr. Farrah Ahmed (Melbourne), “A Coherent Autonomy-based Right to Religious Freedom”
Commentator: Professor Carolyn Evans (Melbourne)
3 May 2013
Professor Theunis Roux (UNSW), “American Ideas Abroad: A Conceptual Map for the Comparative Application of U.S. Judicial Decision-Making Models”
Commentator: Professor Adrienne Stone (Melbourne)
31 May 2013
Mr Andrew Roberts (Melbourne), “Definition, Disagreement, and the Value of Privacy”
Commentator: Professor Megan Richardson (Melbourne)
9 August 2013
Dr Joel Colon-Rios (Victoria University, Wellington), “A New Typology of Judicial Review of Legislation”
Commentator: Professor Cheryl Saunders (Melbourne)
23 August 2013
Dr Adam Perry (Aberdeen), “The Internal Aspect of Social Rules”
Commentator: Dr Patrick Emerton (Monash)
6 September 2013
Dr. Devika Hovell (LSE), “A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-making”
Commentator: Professor Adrienne Stone (Melbourne)
20 September 2013
Dr Kirsty Gover (Melbourne), “The Reasonable Settler Executive: The Honour of the Crown in New Zealand, Canada and Australia”
Commentator: Associate Professor Maureen Tehan (Melbourne)
27 September 2013
Dr. Michael Sevel (Sydney), “Obeying the Law and Doing the Right Thing”
Commentator: Dr Farrah Ahmed (Melbourne)
11 October 2013
Associate Professor Anthony Connolly (ANU), “Naturalised Jurisprudence as an Experimental Philosophy of Law”
Commentator: Dr Dale Smith (Monash)
25 October 2013
Associate Professor Kit Barker (TC Beirne, QLD), “Damages without loss? What Hohfeld can offer”.
Commentator: Associate Professor Elise Bant (Melbourne)