Melbourne Law School - Theses
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ItemA changing of the guard: a critique of the federal enforcement agency since work choices( 2009)“In the past year, we moved from being a traditional time and wages inspectorate, and repositioned Workplace Inspectors as fearless, independent, effective protectors of workplace rights, not afraid to use the full range of powers available to them, including using the courts for penalties or deterrence.”1 Soon after the Howard Government announced its industrial relations policy in 2005, concerns were raised that the ‘deregulation’2 of workplace relations brought about by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices)3 would lead to exploitation of employees.4 In an attempt to silence the unions and reassure the public in respect of the new laws, the federal government raised the profile of the federal enforcement agency. Amongst other things, it changed the agency’s institutional structure, boosted its funding and strengthened its prosecution policy. The then Minister for Employment and Workplace Relations commented at the time that the revitalized inspectorate establishers ‘the most significant industrial compliance and enforcement regime ever introduced by an Australian government’.5 In addition to the changed emphasis on enforcement, as a result of Work Choices, State regulatory enforcement bodies were sidelined, and the powers of the Australian Industrial Relations commission (AIRC) significantly curbed.6 There was also a further fall in unionization.7 Together, this has meant that, in practice, the federal inspectorate is now the main enforcement body for a significant majority of employers and employees in all States and Territories. While State enforcement agencies are still in operation and the State industrial tribunals continue to largely have the same powers to conciliate and arbitrate, at least 75% of the workforce now fall within the federal system of regulation.8 At the same time, the range of investigation and prosecution responsibilities significantly broadened under Work Choices. The inspectorate was no longer solely concerned with the enforcement of minimum labour standards. Rather, it was charged with the responsibility of ensuring that the burgeoning regime of civil remedy provisions under the Workplace Relations Act 1996 (Cth) (WR Act), the Workplace Relations Regulations 2006 (Cth) (WR Regulations) and the Independent Contractors Act 2006 (Cth), were complied with and enforced. While the Pre-Reform Act had some civil penalty provisions, their number substantially increased under Work Choices, in no small part due to the prescriptive and complex amendments brought about by Work Choices. The increased funding and subsequent rise in prosecutions, combined with the heated debate surrounding Work Choices, a wave of advertising, 9 and the controversial ‘use of the federal enforcement agency to “fire fight” media reports of exploitation’,10 also raised the profile of the federal inspectorate in the post-Work Choices period. In comparison, the ‘traditional time and wages inspectorate’, as it is described by the Workplace Ombudsman in the opening quote to this thesis, was largely perceived as being ineffective and maintained a relatively low profile. In the earlier years of operation, resources were so scarce and penalties so low that investigation and prosecution of miscreant employers was perceived as having little deterrent effect. While legislative deficiencies were slowly rectified and penalties significantly increased, the weak persuasive compliance approach – which dominated enforcement strategies in the pre-Work Choices era – was seen to implicitly condone employer non-compliance.11 It is clear from this summary that the role of the federal enforcement agency has changed since Work Choices. It is not entirely apparent, however, whether inspectors have been positively ‘repositioned’ to the extent suggested by the Workplace Ombudsman in the opening quote – this thesis will explore this question in the context of the shifting legislative and political landscape since Work Choices. (From Introduction)
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ItemConstitutional constraints on the reasonableness ground of judicial review: a wrong turning in the High Court of Australia?( 2009)Australian law imposes a duty to exercise statutory discretions reasonably, but Australian courts are circumspect about developing the duty's content. The application of the unreasonableness ground of review requires an assessment of the quality of discretionary decisions, and the ground is therefore seen to carry a risk of shading into review on the merits. While the need for restraint in reasonableness review is clear, there are divergent views on how to ensure appropriate, principled limits on the ground are observed. One area of difficulty is the scope for consideration of the rationality of discretionary decision-makers' reasons. Another is the scope for consideration of any injustice or substantive unfairness that may be involved in the outcome of the exercise of statutory discretions. Australian authorities emphasise that the scope for consideration of these matters is extremely limited. This is generally understood to mean that it is confined to extreme cases, i.e. that the standard of review is high. In this thesis, the author identifies a second sense in which the scope for consideration of these matters is confined in Australian law. Specifically, the author argues that there is support in High Court authorities for two restrictions on judicial development of the grounds of review: (i) it is not a ground of review that material "discretionary' determinations are irrational, assessed against the judge-made standards that apply to determinations that are' preconditions to power'; and (ii) it is not a ground of review that a decision's impact on expectations engendered by the decision-maker's conduct or representations is unreasonable, assessed against judge-made standards that apply to review of decisions' impact on ‘interests'. The judicial theory of the restrictions is that they ensure that review against judge-made standards focuses solely on considerations mandated ‘by statute'. What this seems to mean in practice is that review excludes consideration of matters whose relevance is implied from a course of dealing by the executive. The doctrinal expression of the restriction is that 'expectations' engendered by executive conduct or representations do not attract the protection of the duty of reasonableness. It is not clear whether this restriction commands majority support in the High Court, but the author argues that it underpins three influential reasons for judgment handed down in the period of the Gleeson Court. The author argues that the emergence of support for these restrictions on judicial power to develop the grounds of review is troubling. The inflexible nature of the restrictions impedes the evolution of the reasonableness ground to ensure that discretionary decision-making complies with minimum standards of rationality, proportionality and equal treatment. Further, the author argues that constitutional constraints on the courts' role in judicial review of executive action do not support these restrictions on review. The constitutional principles do not support an inflexible judgment that terminates analysis upon determination that a matter, said to bear on the reasonableness of a decision, emerges from a course of dealing by the executive. In examining the judicial claim that the restrictions are required by constitutional principle, the author looks at the operation of the principle of legislative supremacy, and further engages with the idea that distinctive limits on judicial review of federal executive action can be derived from the text and structure of the Constitution.
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ItemThe regulation of research involving human embryos and cloning in the United Kingdom and Australia( 2009)This thesis analyses the nature, rationale, and implementation of United Kingdom and Australian regulation of research involving human embryos and cloning using legal materials, other documents and qualitative interviews with researchers, practitioners and regulators. It considers how law-makers have decided upon what to regulate and where to draw the line between permissible and prohibited activities, and the type of regulatory design strategies and enforcement approaches adopted in each jurisdiction (the ‘how to regulate’ question). It is argued that both jurisdictions have effectively decided upon permissible and prohibited activities as a result of thorough public consultation, research, reviews and the parliamentary process, and have appropriately balanced competing rationales for regulation. However, the type of regulation used in relation to those who are licensed to research in this area is unsuitable due to an over-emphasis on deterrence and the authoritarian approach taken by the regulatory bureaucracies. The central thesis is that a responsive regulatory system for licence-holders should be adopted. It is proposed that such a system would maintain the top level ‘command and control’ design strategies and deterrence approaches present in the current regulatory systems for breaches of legislation by non-licence holders and serious breaches by licence holders. However, greater use of co-regulatory design strategies and cooperative, educative and persuasive enforcement approaches should be used for regulating licensed research activities.