Melbourne Law School - Research Publications
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ItemSocial Media and Court Communication(Sweet and Maxwell, 2015)Courts have traditionally relied on the delivery of judicial decisions as their sole means of direct communication with the general public. Over time this reliance is shifting, including through the willingness of courts to have their proceedings televised. Courts have also sought to have greater influence on how others communicate about and report their decisions, such as by employing public information officers to prepare press releases on court activities and liaise with the media. Most recently, judges and courts have taken their engagement with the public one step further by experimenting with the use of social media. Social media such as Twitter or Facebook provide a new means by which courts can enhance their openness and accessibility. However, such technologies also come with a fresh set of challenges. In particular, unlike television or media reporting, social media is designed to foster dialogue and ongoing interaction between participants. This needs to be carefully considered, as the use of social media has the potential to affect not only the processes by which courts communicate, but also the nature and substance of court proceedings. While this latter effect could be positive, injudicious use of social media could compromise a court’s ability to operate with independence and integrity. Drawing on a case study of social media use by courts in three common law jurisdictions (the United Kingdom, Australia and the United States of America), this paper considers the extent to which direct communication processes via social media may further the underlying objectives of court communication and enhance the courts’ constitutional role. It considers the opportunities and challenges posed by such media for courts, and how the inherent limits and constraints of social media may affect the nature of court communication. We assess the extent to which courts should make greater use of social media to enhance their existing communication processes and consider whether additional safeguards should be adopted to ensure the use of social media does not detrimentally impact upon the judicial system.
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ItemWe are All Entrepreneurs Now : Options and New Approaches for Adapting Equality Law for the Gig Economy(Kluwer Law International BV, 2018-12-01)As the world of work moves to increasingly precarious, temporary and insecure forms of labour, traditional forms of work regulation are becoming less relevant for the ‘gig economy’. Equality law has traditionally been framed as protecting ‘employees’ (and now ‘workers’) against acts of discrimination by ‘employers’. As these categories become increasingly remote from the lived experience of work, the relevance and potential of equality law to secure individual employment rights becomes increasingly limited. Drawing on comparative legal doctrinal analysis of the UK and Australia, this article considers options and new approaches for protecting workers from discrimination in new forms of employment, canvassing ideas such as the extension of equalitylaw to non-traditional workers, collectivized approaches to individual protection, and the use of positive duties to regulate the gig economy. This article questions the basic relevance and structuring of equality law for new forms of work. If equality law is to remain relevant and effective, serious changes are required to how it is conceived, framed and promoted. Merely extending existing ideas of ‘equality law’ to new forms of work will not respond to fundamental shifts in the labour market: there is a need to rethink and retheorize the role and purpose of equality law
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ItemUnder Wraps: Secrecy, Confidentiality and the Enforcement of Equality Law in Australia and the United Kingdom(Melbourne University, Law Review Association, 2019)Confidentiality has become an integral part of the individual enforcement model for equality law in Australia and the United Kingdom. Contrary to the focus on openness and transparency in the courts generally, confidentiality is embedded in the enforcement, process, and outcomes of equality law. In this article, we consider the role and utility of confidentiality in equality law in Australia and the UK. We scrutinise the ways confidentiality is embedded in the enforcement, process, and outcomes of equality law in each jurisdiction, including via an examination of statutory provisions, the processes adopted by statutory equality agencies, and the available information about claims. We argue that the enforcement of equality law requires a more nuanced balance between confidentiality and transparency to support the individual and systemic aims of equality law and the imperatives of the rule of law.
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ItemThe accountability of members of Australia's federal parliament for misconduct(Informa UK Limited, 2013-09-01)
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ItemOrganisational Responses to the Abolition of Mandatory Retirement: Case Studies of Australian University Practice(Oxford University Press (OUP), 2016-07-01)The abolition of the UK default retirement age (DRA) poses particular challenges for universities. However, it is still unclear how UK universities will respond to this change. To investigate these issues, this article considers theoretical perspectives regarding how organisations respond to change, with a particular focus on reflexive law. It then compares this literature with the results of comparative organisational case studies undertaken with six Australian universities in November 2013. Drawing on comparative analysis of labour laws in Australia and the UK, it considers the extent to which these responses may inform the future reactions of UK universities to the abolition of the DRA.
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ItemInterrogating the ‘Dignity’ Argument for Mandatory Retirement: An Undignified Development?(Oxford University Press (OUP), 2019-09-01)Human dignity is often cited as a justification and foundation for equality law. However, it is also used in some contexts to justify detracting from equal treatment, including in relation to mandatory retirement ages in the UK. Drawing on interdisciplinary scholarship from legal theory and industrial relations, this article argues case law on retirement ages adopts a limited approach to the notion of ‘dignity’, which is grounded in age stereotypes. It considers how a re-conceptualisation of ‘dignity’ might inform the future development of the law on retirement ages and proposes alternative ways to secure individual dignity in employment that do not depend on mandatory retirement ages.
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ItemAge Discrimination Beyond Employment(Kobe University, 2019)Population ageing is reshaping the demographic make-up of countries across the Organisation for Economic Co-operation and Development (OECD). Individuals are, on average, living longer, healthier lives. This is both a major success story for the OECD, and a potential challenge for society, as individuals develop different needs into old age.
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ItemResolving Discrimination Claims outside the Courts: Alternative Dispute Resolution in Australia and the United Kingdom(LexisNexis Australia, 2019)Alternative Dispute Resolution (ADR) is a longstanding feature of both Australian and United Kingdom (UK) anti-discrimination law. In this article, we critically examine the advantages and disadvantages of using ADR to resolve a discrimination claim in Australia and the UK, and the effect ADR is having on discrimination law more broadly. While the UK and Australia have similar discrimination law statutes, and both largely rely on an individual rights model to address discrimination, they use ADR in contrasting ways, and with varying implications in practice. We argue that while ADR offers potential benefits in resolving discrimination claims, the extensive reliance on ADR in both jurisdictions to resolve disputes risks undermining the development of discrimination law. We suggest several key areas in which the regulatory framework could be reviewed to address these limitations and risks.
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ItemJudicial Retirement Ages in the UK: Legitimate Aims and Proportionate Means?(Thomson Reuters Professional (UK), 2017)While retirement ages have been removed for the majority of the UK workforce, the judiciary remains one of the few professions that is systematically compulsorily retired at the age of 70. There is a need to critically examine why judges should be the exception to the general prohibition of mandatory retirement, and whether this approach is appropriate in a modern democratic society. This paper critiques the three aims put forward as supporting judicial retirement ages, namely recognising societal trends, securing judicial capacity and facilitating new and more diverse judicial appointments. Though there may well be legitimate aims that support judicial retirement ages, there are very real questions regarding whether retirement ages are a proportionate means of achieving these aims. Judicial retirement ages may therefore struggle to be objectively justified in accordance with EU law.
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ItemReconceiving Judicial Office Through a Labour Law Lens(Australian National University, Faculty of Law, 2019)Judges fulfil a fundamental constitutional role in democratic systems. Most research on judges, though, focuses on the public and constitutional significance of the judicial role, not the needs of individual judges. This article applies a labour law lens to help reconceive the judicial role in a way that balances the individual and collective needs of judges with the institutional and constitutional needs of the third arm of government, drawing on comparative analysis of Australia and the United Kingdom, and examples from common law countries. I argue that, while some progress has been made towards using labour law to structure and inform judicial roles, labour law offers new insights into how judges and judicial work might be supported. This may both assist judges in their individual capacity and support the judiciary as an institution. It therefore has significance for judges as individuals and the judiciary’s fundamental constitutional role.