Forum Article Category: Article

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.

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Materiality and Jurisdictional Error: Constitutional Dimensions for Entrenched Review of Executive Decisions

While the High Court of Australia has confirmed a materiality threshold for jurisdictional error, there is ongoing debate about its rationale. This comment contributes to the debate by outlining a constitutional rationale for the materiality element in judicial review of executive decisions. Critically, the Commonwealth Constitution denies Australian parliaments power to legislate a prospective rule that rights or obligations are to be as specified in an invalid executive decision in a federal matter. As such, a jurisdictional error by a non-court exercising power in a federal matter engages a significant practical limit on legislative power. Once this is appreciated, a rationale for the materiality threshold for jurisdictional error becomes clear: the threshold calibrates review to the limit on legislative power, by ensuring review is focused on errors that affect the decisions through which legislation operates.

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Defamation Actions and Australian Politics

In recent years, politicians have been frequent participants in Australian defamation litigation. Attorney-General Christian Porter’s recent claim against the Australian Broadcasting Corporation and journalist Louise Milligan is a notable example of the weaponisation of defamation in Australian politics. This article reviews prominent examples of where politicians have commenced or threatened defamation proceedings. The article also considers whether the trend of politicians litigating defamation is desirable, and how it will be affected by the amendment of the Uniform Defamation Acts once the Model Defamation Amendment Provisions 2020 are implemented.

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Legislative Options to Address Institutional Objections to Voluntary Assisted Dying in Australia

Voluntary assisted dying is being considered by parliaments and law reform bodies across Australia. Although individual conscientious objection is routinely considered in these deliberations, an institution’s desire to object to providing voluntary assisted dying has received very little attention. After briefly considering the concept of institutional objection in voluntary assisted dying, this article examines the available (albeit limited) Australian evidence on this practice. Institutional objection is happening in Victoria (where voluntary assisted dying is lawful) and is likely to occur in other Australian states. The article proposes that regulation is needed and presents three models for parliaments and law reformers to consider. The first is ‘conscientious absolutism’, which grants institutions unrestricted ability to object to voluntary assisted dying. The second is a ‘compromise or reasonable accommodation’ model, which aims to accommodate both institutional objection and a person’s wish to access voluntary assisted dying. Different balances can be struck; we propose a model that prioritises a patient’s interests. The third model is ‘non-toleration’, which would refuse to allow an institution to object at all. While there can be debate about the optimal model, the issue of institutional objection to voluntary assisted dying must be addressed.

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Response: Querying the Gender Dynamics of Interruptions at Australian Oral Argument

Amelia Loughland and Professor Rosalind Dixon continue the discussion about the differential treatment of women and their male colleagues, even in the highest judicial institution. The authors explore the limitations of Loughland’s original study ‘Female Judges, Interrupted: A Study of Interruption Behaviour during Oral Argument at the High Court of Australia’, and respond to Tonja Jacobi, Zoë Robinson and Patrick Leslie’s UNSW Law Journal Forum publication ‘Querying the Gender Dynamics of Interruptions at Australian Oral Argument’. Loughland and Dixon examine the possibility of new insights provided by Jacobi, Robinson and Leslie’s research, such as whether judicial personality, multiple female judges or male Chief Justices on the High Court influence the rate of interruptions of female justices.

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Regulating the Use of Genetic Information in the Life Insurance Industry

Sara Golru explores the Australian life insurance industry’s treatment of genetic information in the underwriting process. The Australian life insurance industry has struggled to keep up with scientific and international legal advancements, resulting in an increase in the potential for genetic discrimination. Therefore, Golru provides a critical review of the current international legal frameworks governing the use of genetic information in life insurance, highlights contemporary policy concerns and, recognising the need for extensive reform, provides insightful recommendations.

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Frontline Workers as Human Rights Defenders: Protecting the Human Rights of Frontline Workers in Australia during the COVID-19 Pandemic

During the first months of the COVID-19 pandemic, as state and territory governments in Australia attempted to curb the spread of the coronavirus, attention was focused on a group that came, globally, to be known as ‘frontline workers’, which included health workers. In this article, we interrogate the construction of health workers as ‘frontline workers’ during the COVID-19 pandemic. We argue that this framing supported the narrative that the dangers to which health workers were exposed, which included threats to their lives and wellbeing, was an unfortunate but inevitable part of the war against the common enemy (COVID-19). The effect was to divert attention from what should have been the primary focus: ensuring that health workers had the equipment and conditions to carry out their jobs safely and effectively. We argue that an alternative and more appropriate understanding of the role of health workers during a pandemic – and the COVID-19 pandemic in particular – is that health workers are human rights defenders.

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Wills Formalities beyond COVID-19: An Australian–United States Perspective

COVID-19 has brought a new focus to human mortality and a person’s need to prepare for the transmission of their property at death. However, stay-at-home orders and social distancing requirements have made safely executing wills practically difficult. Using a comparative Australian-United States perspective, Dr Kelly Purser, Associate Professor Tina Cockburn and Professor Bridget J Crawford investigate the purposes of traditional wills formalities, suggest their continued vitality in the context of remotely witnessed or electronic wills, and critically discuss the emergency measures adopted in both countries and the arguments for and against making these measures permanent.

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Querying the Gender Dynamics of Interruptions at Australian Oral Argument

Tonja Jacobi, Zoë Robinson and Patrick Leslie have provided a responsive comment to Amelia Loughland’s study, ‘Female Judges, Interrupted: A Study of Interruption Behaviour during Oral Argument at the High Court of Australia’. Jacobi, Robinson and Leslie have examined 25 years of oral argument in the High Court from 1995–2019 and employed statistical methods to test whether there is a gender effect at High Court oral argument, or whether the effects identified by Loughland may be a product of other factors relevant to interruption behaviour.

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