Forum Article Category: Article

Learnings from Johnston v Carroll: The Place of Human Rights in Legal Challenges to COVID-19 Vaccine Directions

Both public and private employers introduced vaccine directions during the COVID-19 pandemic. Such directions either actively required employees to be vaccinated or provide proof that they had been vaccinated by a certain date in order to attend their place of work. In some instances, the employee could be subject to disciplinary action, including dismissal, if they did not comply with the directions. In a decision the first of its kind, Justice Martin of the Queensland Supreme Court decided in Johnston v Carroll (‘Johnston’) that certain of the state’s COVID-19 vaccine directions for police force and ambulance service employees were unlawful.

Please access full article here or via PDF link to the left.

A New Aged Care Act: Progress in Implementing a Supported Decision-Making Approach in Australia’s Federation

This article evaluates the first legislative attempt by the Commonwealth to honour its commitments under the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’), by introducing a supported decision-making framework into the federally funded aged care system. The article concludes that the consultative process to develop a new Aged Care Act incorporating such a framework has so far been both fruitful but also very deficient. It is suggested that the design of the two new appointments (supporters and representatives) cleaves closely to CRPD requirements. However, it is argued that the reliance on administrative processes for making and monitoring Commonwealth appointments and the relationship with state and territory equivalent powers and appointments is less than ideal. The proposed Act raises questions regarding how the new system will practically interface with existing state and territory regimes, how best to recognise the principle of subsidiarity in this context and presents a timely reminder of the limits of what the Commonwealth can and should seek to achieve within the Australian federation.

Please access full article here or via PDF link to the left.

Rethinking Green Antitrust: The Double-edged Opportunities and Barriers in Pursuit of a Circular Australian Economy

In response to a lack of government action on environmental issues and amidst a worsening climate crisis, scholars have called for the implementation of ‘green antitrust’. However, green antitrust faces criticism where many oppose the concept on grounds that non-economic goals and competition law do not mix. The aim of this article is to critically analyse and explore the opportunities and barriers associated with green antitrust and how the Australian Competition and Consumer Commission (ACCC) could assist. By utilising the authorisation process used by ACCC as a vehicle for analysis, this article draws on different views and perspectives from competition literature. A recommendation is proposed to exclude the ‘public’ criterion from the public benefit test as this is unduly cautious and poses challenges when arguing for efficiencies. The article is a call for an update to our thinking, to view competition law not as an end in itself, rather as a means to an end. If the end goal is a more sustainable and circular Australian economy, than competition law could assist.

Please access full article here or via PDF link to the left.

Critique of ‘Voice versus Rights’

This article was written and submitted before 14 October 2023.

This article broadly examines and critiques some key issues, points and arguments raised in the lead article of Issue 46(3), ‘Voice Versus Rights: The First Nations Voice and the Australian Constitutional Legitimacy Crisis’ (‘the article’) by Gabrielle Appleby, Ron Levy and Helen Whalan (‘the authors’). This critique will focus on the article’s impact on Indigenous peoples on this Continent now called Australia (‘the Continent’) and, in the view of this paper and in practice, the Voice’ s only vulnerable stakeholder, thus necessarily taking a different standpoint from that of the authors, as will be evident below.

Please access full article here or via PDF link to the left.

What Did the COVID-19 Pandemic Reveal About Workplace Flexibility for People with Family and Caring Responsibilities?

As part of the Australian government’s response to deal with the ongoing COVID-19 pandemic in 2020–1, a large proportion of Australian workers worked from home. Many workers were also required to care for and homeschool young children when schools and childcare facilities were closed as part of the public health response to the pandemic. More than a year on, it is crucial to examine what workers with family responsibilities needed at this time and how employers have responded. This is particularly important because workers with family responsibilities will continue to request flexible working arrangements long after the COVID-19 pandemic has receded. This article reports on the results of an online survey conducted with Australian workers about their experience of balancing their work and family responsibilities during the pandemic, including the arrangements the worker sought and their employer’s response. It outlines implications relevant to how flexible working arrangements might operate in future.

Please access article here or via PDF link to the left.