Melbourne Law School - Theses
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ItemConstitutionally guaranteeing information flow( 2023-06)The thesis outlines the potential and limits of the constitutional recognition of a right to information. Relying on doctrinal and comparative methodology, it draws insights from the South African experience. The research suggests that, while there are theoretically solid justifications for recognising the right, constitutional recognition does not necessarily achieve the goals envisaged for it in practice. To achieve its potential, such a right needs continued acknowledgement and active support from all the branches of government of the state as a whole.
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ItemThe use of foreign judges on courts of constitutional jurisdiction in Pacific island states( 2018)The global norm is that, by law or by practice, the judges on courts of constitutional jurisdiction will be citizens of the state they serve. However, in the nine independent states of Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu, as in other parts of the world, foreign judges regularly sit on the highest domestic courts. This thesis examines the implications of the use of foreign judges for constitutional adjudication, judicial independence, and the role of judges and judiciaries in Pacific constitutional systems. The thesis presents the findings of an original empirical study of the numbers of foreign judges serving in the Pacific, their nationality and professional background, the processes by which they are recruited, and the terms and conditions of their service. It reveals a transnational movement of judges from common law jurisdictions to Pacific states, to engage in judicial service that is affected by the legal frameworks and practices of the Pacific states that use foreign judges and the policies of the external states and organisations that provide foreign judges. The thesis assesses the implications of the use of foreign judges for the way in which courts approach constitutional adjudication, judicial independence, and the representative qualities of judges and judiciaries in Pacific constitutional systems. First, I argue that foreign judges bring two dimensions of knowledge to the task of constitutional adjudication: knowledge reach that extends beyond the local; and a knowledge gap in relation to local context. I show that predominant features of constitutional adjudication across Pacific jurisdictions are, at least in part, explicable in light of the kinds of knowledge that foreign judges bring. Secondly, I explain how the presumption of distance implied by foreignness feeds into a perception that foreign judges are more impartial than local judges. I argue that this perception is overstated, while the risks to judicial independence resulting from the insecure tenure of foreign judges are not properly addressed. Thirdly, attention to the nationality of judges highlights the significance placed on judges’ allegiance to the state, responsibility to the people, and the expressive functions of the judiciary. I argue that the circumstances of foreign judging limit the extent to which foreign judges are understood to be authorised by, accountable to, speak for, or reflect the people or the state. Instead, greater emphasis is placed on the idea of foreign judges as members of a profession, with expertise, impartiality and a transnational commitment to law. This analysis of the practice of foreign judging and its implications provides the basis to assess the rationales for the use of foreign judges, to identify challenges that the practice poses to the legitimacy of Pacific judiciaries, and to propose good practice initiatives that might inform the laws and policies that regulate the use of foreign judges.
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ItemProportionality and the proof of facts in Australian constitutional adjudication( 2018)This thesis examines the relationship between proportionality and facts in constitutional adjudication. The Australian High Court has developed various tests of constitutional validity that incorporate elements of the tripartite proportionality formula of suitability, necessity and balancing. Yet the scope and content of these tests, including the role of facts, remains uncertain. In addition, while the global spread of proportionality has attracted considerable academic attention, there has been little sustained analysis of the role of facts. In light of this, the thesis seeks to understand the extent to which factual inquiry matters in proportionality reasoning in Australia, both conceptually and in practice. Following this primary research question, the thesis considers how courts currently deal with facts in proportionality reasoning and, second, how an understanding of the nature and significance of facts might assist in the processes of fact-finding. The thesis answers these questions by analysing the conceptual structure of proportionality and the relevance of facts within each of the three stages. To understand the nature of these facts, it evaluates various taxonomies of fact that have been developed and considers how these might apply to proportionality reasoning. Building on this conceptual foundation, the thesis examines how proportionality has been applied by courts in practice. While the primary focus is on Australian constitutional adjudication, the thesis also draws on the experiences of Germany, Canada and South Africa. These comparative perspectives demonstrate how the link between proportionality and facts has been understood in practice, and potentially inform the application and development of proportionality reasoning in Australia. The thesis argues that facts are relevant to all three stages of proportionality reasoning but are likely to be most prominent at the necessity stage. The Australian and comparative jurisprudence illustrates, however, that there is variation in the extent to which questions of fact have been recognised in practice; courts do not always openly acknowledge the factual underpinnings of proportionality and there has been considerable judicial disagreement about whether evidence is necessary or appropriate to inform assessments of proportionality. It is argued, further, that in order to understand the significance of facts there is a need to distinguish more clearly between the types of empirical claims that arise at the different stages of proportionality analysis. While it is possible to draw on existing categorisations of fact that have been developed, such as legislative or constitutional facts, proportionality contains its own distinctive set of questions. It is therefore instructive to consider the facts that arise at each stage separately. The thesis concludes by considering the procedural implications that result from this contextual approach to facts.