- 17 February 2015: CCCS and Obligations Group Seminar
Against Unification: Recognising the Distinctiveness of the Common Law of Review, and the Law under the Human Rights Act 1998
Presenter: Dr Jason Varuhas,Faculty of Law, University of New South Wales
This paper considers and rejects two types of claim concerning the interrelationship between the common law of review and the law under;the Human Rights Act 1998 in English public law. First, a descriptive claim that these two fields are being unified, in the sense that they are becoming functionally aligned and are characterised by common norms, doctrines and methods. Second, a normative claim that the two fields ought to unify. The paper argues that the common law of review and human rights law are distinct bodies of doctrine which perform radically different and distinctly valuable functions, and that there are strong reasons for resisting calls for unification.
Dr Jason N. E. Varuhas is a Senior Lecturer at the Law Faculty at the University of New South Wales, and a Fellow of Christ;s College, University of Cambridge. He is a member of the Gilbert+Tobin Centre of Public Law at UNSW and Co-Director of the Administrative Law Project within the Centre, as well as a member of the Centre for Public Law at the University of Cambridge. He is a founder of the series of biennial, international Public Law Conferences, the first of which was held at Cambridge in 2014. Jason researches public law, tort law, the law of remedies, and the public law-private law divide. He has published in leading journals and edited collections. His sole-authored monograph, Damages for Breaches for Human Rights (Hart Publishing), his co-authored textbook, the fifth edition of Beatson, Matthews and Elliott;s Administrative Law (Oxford;University Press), and his co-edited collection, Public Law Adjudication in Common Law Systems (Hart Publishing) are forthcoming.
- 27 February 2015: Judges and the Academy Seminar
Disagreement About Values: Courts, Legislatures and the Reform of Tort Law
Presenters: Professor Peter Cane, ANU College of Law and The Hon. Margaret Beazley AONSW Court of Appeal
- 10 March 2015: CCCS and Obligations Group Seminar
Defending Constitutionalism Through Public Interest Litigation in Bangladesh: A Sceptical View
Presenter: Associate Professor Ridwanul Hoque, Faculty of Law, University of Dhaka, Bangladesh
The present paper seeks to critically assess the potency of the strategy of;public interest litigation; (PIL) in defending constitutionalism in Bangladesh. The PIL-jurisprudence of the Indian Supreme Court, entrenched since the early 1980s, is rightly considered the most outstanding contribution of that institution to constitutional and adjudicative theories. The Indian-style PIL travelled to Bangladesh during the late 1990s.
From the functionality point of view, the PIL-tool can be used to protect constitutional rights of various deprived segments of society, or to realise the wider principles of constitutionalism such as public participation, judicial independence, free election, and so on. This paper will limit its focus on the instrumentality of PIL in the protection of constitutionalism in Bangladesh. While Dr Hoque tends not to belong to the camp of critics of PIL is moving away from its original ideal of protecting the rights of the desperately poor and socially disadvantaged sections of the public, he proposes to argue that PIL-strategy has delivered much less than it initially promised for constitutionalism. One potential reason is the increasing misuse of PILs purportedly involving issues of constitutionalism. The analyses are based on some select decisions of the Supreme Court of Bangladesh pertaining to judicial review of structural issues.
Dr Ridwanul Hoque is Associate Professor of Law at the University of Dhaka, and 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 (SOAS) 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 was a Fulbright Visiting Scholar at Cornell Law School (October 2013 to June 2014) and was a Visiting Scholar at the CCCS, Melbourne;Law School, in 2013 (March - June). Dr Hoque has published in British, American, Singaporean, Indian, Pakistani and Bangladeshi law journals. He is the author of a book titled Judicial Activism in Bangladesh: A Golden Mean Approach (2011).
- 13 March 2015: CCCS and ALC Seminar
Constitutional Transition from Military Rule in Burma/Myanmar: Beyond a Narrative of Linear Progress
Presenter: Andrew McLeod, Research Fellow and Director, Oxford-Burma Law Programme, University of Oxford
The prospect of Myanmar's emergence from military rule has intrigued constitutional scholars by its apparent improbability. After two decades of near-complete isolation, a council of generals led the adoption of a new constitution in 2008; ceded power to a quasi-civilian regime in 2011; permitted the establishment of a constitutional reform process in 2013 with the stated aim of supporting stronger multi-party democracy and greater local autonomy; and in October 2014 confirmed multi-party elections for the end of 2015. The pace of these reforms, and the absence to date of concrete outcomes, has prompted suggestions that the transition is a sham and that the trajectory of change has reversed. Skeptics also note that these constitutional developments are taking place against the backdrop of a frustrated peace process that seeks to resolve decades-long armed conflicts between the military and ethnic groups.This paper suggests a fresh reading of Myanmar;s transition from military rule, offering tentative lessons for theorists of constitutional transitions. The linear approach to analysing such transitions, marking progress in terms of the military's gradual withdrawal from political positions leading to genuine acceptance of full civilian control, is insufficient to assess Myanmar's ongoing constitutional reform process. I argue that understanding the transition underway in Myanmar requires looking further back in the country;s constitutional history to reveal a more complex set of legal and political factors. The case of Myanmar is better explained in terms of a long planned and carefully executed constitutional and political transformation, where events are often orchestrated by the same actors who ruled before the transition and where seemingly spontaneous outbursts of protest are rooted in decades-old conflicts. I argue that a closer, contextualised reading of constitutional dynamics in Myanmar offers useful insight for studies of constitutional transitions, highlighting reference points, actors and dynamics worthy of closer attention when making sense of transitions involving the military.
Andrew McLeod is a research fellow in law at the University of Oxford and directs the Oxford-Burma Law Programme. For the past two years, he has led law and higher-education projects in Myanmar and served as an adviser on the constitutional reform process. He provides analysis on South-east Asia as region head for the global strategic consultancy firm Oxford Analytica. His commentary regularly features across the BBC, Reuters and Agence France-Presse. Andrew was previously a lecturer in constitutional law at the University of Sydney and special adviser to the H C Coombs Policy Forum, within the Crawford School of Public Policy at the Australian National University. He served as associate to the chief justice of Australia and worked as a senior analyst and speechwriter within the Australian Department of the Prime Minister and Cabinet. He holds degrees in law and chemistry from the University of Oxford and the University of Sydney.
- 17 March 2015: CCCS and CREEL Seminar
After the Scottish Referendum: The “Enduring Settlement” and its Implications for the Energy Industries
Presenter: Professor Terence Daintith, Institute of Advanced Legal Studies, University of London, UK
Despite the rejection of independence, the Scottish referendum has led to proposals for substantial enlargement of the powers devolved to the Scottish government, including control of onshore oil and gas. The paper looks at the implications and possible further development of the devolution proposals, in the context of the unstable political situation that is expected to follow from the 2015 UK General Election.
Professor Terence Daintith is a Professorial Fellow at the Institute of Advanced Legal Studies, University of London, where he was Director from 1988 to 1995. Before that he taught at the Universities of California (Berkeley), Edinburgh and Dundee, and was a research professor at the European University Institute in Florence, Italy. His main research interests are in the fields of oil and gas law, regulation, and constitutional law. He is co-editor of Daintith, Willoughby and Hill’s multi-volume United Kingdom Oil and Gas Law, the basic reference in the field, and was founding editor of the Journal of Energy and Natural Resources Law. From 1994 until 2002 he was Dean of the University of London’s School of Advanced Study, grouping its research institutes in the humanities and social sciences, and he now teaches oil and gas law at the University of Western Australia, and energy law and regulation at Melbourne.
- 29 April 2015: CCCS and APCML
The Rise of the Orwellian State? Australia's Approach to Surveillance and Counter-terrorism
Presenters: Bret Walker SC, barrister, former Independent National Security Legislation Monitor, Senator Scott Ludlam, Senator for Western Australia, Australian Greens’ spokesperson on Broadband, Communications and the Digital Economy, and on Defence, Professor Ben Saul, Professor of International Law at Sydney Law School, barrister, Dr Patrick Emerton, Senior Lecturer at the Faculty of Law, Monash University
Chair: Professor Adrienne Stone, Director of the Centre for Comparative Constitutional Studies, Melbourne Law School
Signiﬁcant reforms to Australia’s national security laws are on foot. Legislation was passed last year to expand ASIO powers in relation to computer networks, to increase penalties for revealing details of secret intelligence operations, and to restrict the travel of persons perceived as threats to Australia’s security. This year the parliament has passed laws regarding the compulsory retention of metadata by telcos. Are these measures necessary to keep Australians safe or are we on our way to an Orwellian dystopia?
- 23 July 2015: 2015 Constitutional Theory Workshop
Australian Society of Legal Philosophy, the Centre for comparative Constitutional Studies & Melbourne Law School Legal Theory Workshop
Religion and Constitutionalism Crises of Secularism, Crises of Constitutionalism: Tethered Fates?
Presenter: Associate Benjamin Berger, Osgoode Hall Law School
The Autonomy Rationale for Religious Freedom
Presenter: Dr Farrah Ahmed, Melbourne Law School
Constitutional Conventions and Constitutional Change
Presenter: Dr Adam Perry, School of Law, Queen Mary University of London, co-author with Adam Tucker, University of York,
Constitutional Design by Judiciary: Constitutional Drafters as Judges Professor
Presenter: Rosalind Dixon, UNSW Law School
- 23–24 July 2015: CCCS Conference
2015 Constitutional Law Conference
A Conversation with the Hon. Justice Hayne AC
Speaker: The Hon. Justice Kenneth Hayne AC
Moderator: Professor Carolyn Evans, Dean, Harrison Moore Professor, Melbourne Law School
James Stellios, Zines' The High Court and the Constitution (6th edition 2015)
Launch by: The Hon. Justice John Griffiths (Federal Court of Australia)
Constitutional Dimensions of Statutory Interpretation
Welcome: Professor Adrienne Stone (Melbourne Law School)
Speakers: Professor Cheryl Saunders AO (Melbourne Law School), Professor Jeremy Gans (Melbourne Law School), The Hon. Justice John Basten (Court of Appeal, Supreme Court of New South Wales)
- 7 August 2015: CCCS Seminar
A Comparative Conversation on Constitutions: Implications and the Recognition of ‘Unwritten Rights’ in Australia and Israel
Speakers: The Hon. Justice Daphne Barak-Erez, Justice, Supreme Court of Israel and The Hon. Kenneth Hayne AC QC, former Justice High Court of Australia
Commentator: Professor Adrienne Stone, Director, Centre for Comparative Constitutional Studies.
This seminar will explore the recognition of unwritten doctrines of constitutional law in Australia and Israel, with a particular emphasis on constitutional rights. The speakers - Justice Daphne Barak-Erez and Justice Kenneth Hayne - will each explain and analyse the approaches of the courts on which they have served as a Justice. Professor Adrienne Stone will offer a comparative commentary.
- 13 August 2015: CCCS and IILAH Seminar
American Law Institute Restatement of the Law Fourth, The Foreign Relations Law of the United States
Speaker: Paul B Stephan, John C Jeffries, Jr, Distinguished Professor of Law - University of Virginia School of Law
This Restatement updates the influential 25-year-old Restatement Third of The Foreign Relations Law of the United States. It is a very large project involving eight reporters, including two coordinating reporters. Initial topics for consideration include jurisdiction, the domestic effect of treaties, and sovereign immunity. Professor Stephan is one of the coordinating reporters for this project.
Paul B Stephan is John C Jeffries, Jr, Distinguished Professor of Law in the University of Virginia School of Law. He is an expert on international business, international dispute resolution and comparative law, with an emphasis on Soviet and post-Soviet legal systems. In addition to writing prolifically in these fields, Stephan has advised governments and international organisations, taken part in cases in the Supreme Court of the United States, the federal courts, and various foreign judicial and arbitral proceedings, and lectured to professionals and scholarly groups around the world on issues raised by the globalization of the world economy. During 2006-2007, he served as counsellor on international law in the U.S. Department of State. He is one of the coordinating reporters for the American Law Institute’s Restatement (Fourth) of the Foreign Relations Law of the United States. He is visiting the Melbourne Law School this week to teach Energy Resources in Emerging Markets in the Melbourne Law Masters program.
- 25 August 2015: CCCS Seminar
Presenters: Adam Perry, Queen Mary University of London and Farrah Ahmed, Melbourne Law SchoolChair: Professor Adrienne Stone, Melbourne Law School
The British constitution includes many statutes, such as the Bill of Rights 1689 and the Scotland Act 1998. Since 2002, British courts have treated constitutional statutes differently than ordinary statutes. In this article we address three questions: (1) How have courts treated constitutional statutes differently than ordinary statutes? (2) What is a constitutional statute? (3) Why, if at all, should constitutional statutes be treated differently than ordinary statutes? We explain that courts have made it harder for ordinary statutes to repeal constitutional statutes by implication, and easier for constitutional statutes to repeal ordinary statutes by implication. We suggest that a constitutional statute is a statute which concerns state institutions, which depends on few other governmental norms, and on which many other governmental norms depend. Drawing on our definition, we show the extent to which the special treatment of constitutional statutes is justified, and we explain when one constitutional statute should be held to repeal another constitutional statute by implication.
- 8 September 2015: Brown Bag Seminar with Special Visitor: Lady HaleBrown Bag Seminar with Special Visitor: Lady Hale
Presenter: Brenda Hale, Baroness Hale of Richmond, DBE, QC, PC, FBA (Hon) is the current Deputy President of the Supreme Court of the United Kingdom.
During her visit to Melbourne Law School, Lady Hale was kind enough to take some time to speak at a CCCS Brown Bag lunch, attended by many CCCS academics and research assistants. She discussed common law fundamental rights jurisprudence in recent UK Supreme Court cases.
- 20 October 2015: CCCS Seminar
Eastminster: Sir Ivor Jennings, the Westminster Model and State Building in Asia
Presenter: Dr Harshan Kumarasingham, Senior Research Fellow at the Institute of Commonwealth Studies, University of London and Lecturer in Comparative Politics at Ludwig Maximilians University, Munich (LMU)
All of the Asian States that emerged from British control in varying degrees took key substantial elements from the British Westminster system. This system was more commonly associated with the British settler countries like Australia, Canada and New Zealand where “kith and kin” links with Britain seemed to make this appropriate. However, the British and the Asian indigenous elites saw advantages in applying this very British system to the very different context of the East.
These Asian nations did not have centuries to interpret and adjust in order to develop their constitution as the British had. Instead within months they needed to formulate and design a constitution and therefore invariably drew upon the system of their imperial master and advisers like Sir Ivor Jennings. Since the Westminster system is based on convention and ambiguity and not rigid rules and clarity the same Westminster system could be adopted and manipulated to produce diverse results and reactions that would shape their countries forever. These states therefore became Eastminsters. This talk broadly examines the concept of Eastminster in the eventful context of Asian decolonisation and the need for rapid constitutional settlement.
Dr Harshan Kumarasingham is a Senior Research Fellow at the Institute of Commonwealth Studies, University of London and Lecturer in Comparative Politics at Ludwig Maximilians University, Munich (LMU). Prior to this he was Smuts Fellow in Commonwealth History and Politics at the University of Cambridge. Harshan’s latest book is A Political Legacy of the British Empire - Power and the Parliamentary System in Post Colonial India and Sri Lanka and he recently edited for Cambridge University Press Constitution Maker - Selected Writings of Sir Ivor Jennings.
- 9–10 December 2015: Tri-Nations Symposium
Tri-Nations Symposium: Public Law in Three Nations
Pre-Symposium Workshop: The Philosophical Foundations of Indigenous Law
The paper presented at this workshop arises from a new project to be conducted by Kirsty Gover (MLS), Claire Charters (Auckland) and Nicole Roughan (NUS). The field of indigenous law is well populated by scholarship on positive law and on political theory, but legal theorists have been very tentative in their interventions. The “scoping article” presented at this workshop aims to outline the contours and content of the field as it stands, highlight core methodological strands, and to identify promising avenues for further research on the “Philosophical Foundations of Indigenous Law.
Panel 1: Introductory Panel: Recent developments in Public Law in Three Nations
Presenters: Cora Hoexter, Paul Rishworth and Adrienne Stone
Panel 2: Public Law Intersections I: Public Law and Contract
Are government contracts different?
Presenter: Janet McLean (Auckland)
The implications of the right to equality in terms of the Constitution of the Republic of South Africa, 1996 for the common law of contract
Presenter: Deeksha Bhana (Wits)
Chair: Kristen Rundle
Panel 3: Public Law Intersections II: Public Law and International Law
The UNDRIP and the Treaty in New Zealand public law: Allies or Opponents?
Presenter: Kirsty Gover (MLS)
Constitutionalizing International Law: An Experience from Latin-America
Presenter: Arturo Villogran (MLS)
Chair: Scott Stephenson
Panel 4: Controlling the Exercise of Power: the Executive
Substantive limits on government third-source action
Presenter: Bruce Harris (Auckland)
Mistake of Fact in Judicial Review
Presenter: Hanna Willberg (Auckland)
Chair: Michael Crommelin
Panel 5: Controlling the Exercise of Power: Judicial Power
Towards Judicial Accountability in South Africa: The Complaints Procedure In Action
Presenter: Cora Hoexter (Wits)
Courts and Constitution Making
Presenter: Will Partlett (MLS)
Chair: Lulu Weis
Panel 6: Controlling the Exercise of Power: Legislative Power
The Fact Dependent Nature of Proportionality
Presenter: Anne Carter (MLS)
Laws that are “incapable of being given practical operation”
Presenter:Jeremy Gans (MLS)
Chair: Adrienne Stone
Panel 7: Public Law and Human Movement Across Borders
The Making of New Zealand’s Foreign Fighter legislation: Some Observations on Process
Presenter: John Ip (Auckland)
Sex work and human trafficking in South Africa: a deconstruction of an arbitrary conflation
Presenter: Thomas Coggin (Wits)
Chair: Farrah Ahmed
- 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. The workshop is organised by Dr Lulu Weis and is supported by CCCS.
27 March 2015
Dr Hedi Viterbo (SOAS), ‘Child-Adult Separation: Links, Analogies, and Continuities’.
Commentator: Dr Coel Kirkby (Melbourne)
*Workshop co-sponsored by the Institute for International Law and the Humanities
24 April 2015
Mr Josh Paine (Melbourne – PhD Candidate), ‘Interpretive Communities in International Law: Understanding Legal Meaning, Regimes and Interpretive Power’
Commentator: Associate Professor Jürgen Kurtz (Melbourne)
8 May 2015
Professor Tony Coady (Melbourne - Philosophy), ‘Terrorism: the Hunt for its Distinctive Significance’
Commentator: Dr Anna Hood (Melbourne)
22 May 2015
Dr Patrick Emerton (Monash), ‘Legislation as Stipulation’
Commentator: Professor Jeremy Gans (Melbourne).
5 June 2015
Professor Liam Murphy(NYU), ‘Private Law and Social Illusion: The Shackles of Everyday Libertarianism’
Commentator: Commentator: Professor Matthew Harding (Melbourne)
*Workshop co-sponsored by the Obligations Group
23 July 2015
Special Event: Workshop on Constitutional Theory, co-hosted by the Centre for Comparative Constitutional Studies and the Australian Society of Legal Philosophy
7 August 2015
Professor Adrienne Stone (Melbourne) and Professor Rosalind Dixon (UNSW), “Philosophical Foundations of Constitutional Amendment”
Commentator: Ms Anna Dziedzic (Melbourne)
1 August 2014
Professor Fleur Johns (UNSW), ‘The Temporal Rivalries of Human Rights’
Commentator: Ms Cait Storr (Melbourne).
8 August 2014
Professor Nathaniel Persily (Stanford), “The Stronger Parties as a Solution to Polarization”
Commentator: Professor Donald Critchlow (Arizona State) and Associate Professor Timothy Lynch (Melbourne – Political Science)
14 August 2015
Professor Alon Harel (Hebrew University Jerusalem), ‘Against Hierarchy: The Case for Discordant Parity between Constitutional and International Law’.
Commentator: Dr Scott Stephenson (Melbourne).
28 August 2015
Dr Daniel Halliday (Melbourne), ‘Freedom of Bequest and the Nature of Private Property’.
Commentator: Mr Michael Crawford (Melbourne).
4 September 2015
Dr Rose Parfitt (Melbourne), 'Thinking through the Arco dei Fileni: Fascist Sovereignty Yesterday and Tomorrow'.
Commentator: Dr John Morss (Deakin)
9 October 2015
Dr Robert Simpson (Monash), ‘Defining “Speech”: the subtractive approach v. the additive approach’
Commentator: Professor Adrienne Stone (Melbourne)
30 October 2015
Dr Coel Kirkby (Melbourne), ‘Why Doesn’t Legal Positivism Have a History?'
Commentator: Associate Professor Shaun McVeigh (Melbourne).