Forum Article Category: Article

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.

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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.

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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.

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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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