Legal Studies Research Paper Series Vol 20, No. 4

Melbourne Law School published Volume 20 Number 4 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Tess Hardy and John Howe
Chain Reaction: A Strategic Approach to Addressing Employment Non-Compliance in Complex Supply Chains (777)

This paper will draw on the central tenets of the strategic enforcement model and extensive empirical research to explore three innovative mechanisms implemented by the Fair Work Ombudsman (FWO) which are designed to address employer non-compliance in complex supply chains, namely: supply chain litigation, enforceable undertakings and proactive compliance deeds.

Richard Garnett
The Strasbourg Court: A Friend to Embassy and Consular Employees (778)

This article examines the recent jurisprudence of the European Court of Human Rights on the issue of state immunity and the right of access to a court in employment disputes. In a series of decisions since Cudak v Lithuania in 2010 the Court has strived to uphold the rights of employees of foreign states, particularly embassy and consular staff engaged in routine, non-policy roles, by limiting the scope of state immunity in such cases. This approach is a welcome affirmation of the right of access to justice.

Jason N E Varuhas
Administrative Law and Rights in the UK House of Lords and Supreme Court (779)

Over the last three years the UK Supreme Court has undertaken renewed efforts to forge a jurisprudence of rights within the common law of judicial review in cases such as Kennedy v Information Commissioner, R (Osborn) v Parole Board, Pham v Secretary of State for the Home Department, Keyu v Secretary of State for Foreign and Commonwealth Affairs, and R (Unison) v Lord Chancellor.

Much has been written of these developments from a contemporary perspective, with a great deal of commentary dedicated to analysing individual cases. The contribution of this paper is to place these developments in the context of the development of the modern system of judicial review, and to offer a ‘long view’ of the role which the House of Lords and Supreme Court have attributed to ‘rights’, including human and fundamental rights, within administrative law doctrine. In turn this serves to deepen our understanding of current trends. The paper charts the place of rights within administrative law over four decades, from 1977 to 2017.

The paper identifies and analyses four episodes in the interrelationship between administrative law and ideas of rights within the House of Lords and Supreme Court.

Scott Stephenson
The Rise and Recognitionof Constitutional Statutes (780)

This chapter studies the influence that constitutional statues have on the traditional distinction between systems with a 'capital-C constitution' and those without one. It makes two principal arguments. First, legislatures in parts of the common law world increasingly turned to constitutional statutes to pursue changes to the fundamental features of the lawmaking process in the second half of the twentieth century and early part of the twenty-first century. In countries without capital-C constitutions, constitutional statutes rose to prominence as a substitute for the enactment of a capital-C constitution, allowing legislatures to attempt to bring about the types of changes to their systems of government that were once generally thought to require a capital-C constitution. In countries with capital-C constitutions that are especially difficult to amend, constitutional statutes rose to prominence as a substitute for amendment to their capital-C constitutions, allowing legislatures to attempt to bring about changes to their systems of government without having to face the considerable hurdles presented by the formal amendment procedure. The rise of constitutional statutes thus cuts across the traditional divide in the common law world, appearing to be a point of commonality and convergence.

Miranda Stewart
Redistribution between Rich and Poor Countries (781)

The topic of redistribution between rich and poor countries opens a can of worms. This paper first inquires into what we mean by some of these words and second, considers the role of taxation in redistribution. It briefly considers the various modes of redistribution to address poverty and inequality, including the role of taxation, within a country before turning to consider modes of redistribution between rich and poor countries. The paper then turns to consider whether we are asking the right question. Should the question, really, be about redistribution between rich and poor people? In an increasingly global and digital era, how might we reconsider the role of taxation in achieving this? The paper briefly touches on state-based and cosmopolitan theories of international distributive justice, before considering whether we need to unpack the very concept of the country, nation-state, or government to achieve the transnational provision of public goods and redistribution between rich and poor.

Cheryl Saunders
Financial Autonomy vs. Solidarity: A Dialogue between Two Complementary Opposites (782)

This paper compares approaches to the design and operation of fiscal arrangements in federations by reference to the extent to which they reflect two principles. The first is autonomy, which refers to those elements of a system that expect and protect independent action by each order of government and encourage self-reliance. The second is solidarity, which refers to features that involve interdependence and anticipate the collective interest in effective government in a federated state. The paper argues, by reference to the case studies of the United States and Germany, that all federal-type systems necessarily have elements of both, although the principles manifest differently, and in different proportions, under the influence of contextual factors, including federal design. Thus, in the United States, solidarity is coloured by a competitive and adversarial federal operation; in Germany, demands of autonomy are tailored to and limited by core expectations of solidarity. Further, the paper argues that, whatever the initial mix of autonomy and solidarity, change is likely over time. Catalysts for change include the economic context in which the federation operates, internally and externally, and political power-struggles between the spheres of government. Change may involve alteration in the federal constitutional or legal framework. Even where the framework remains static, however, functional change may occur through political practice reinforced by judicial interpretation.