Welcome to the September edition of the AUSPUBLAW Australian Public Law Events Roundup. The events in this roundup were compiled in late August. Due to the evolving nature of responses to COVID-19, some of the below events may have been cancelled, postponed or otherwise amended. Please consult the link for each event for notification of any changes.

Before we get to the events roundup, we would like to draw your attention to the following two opportunities:

Baxter Family Competition on Federalism
Peter MacKell Chair on Federalism, McGill University Faculty of Law
Deadline for Submissions: 1 February 2021

The Peter MacKell Chair on Federalism is delighted to launch the 3rd edition of the Baxter Family Competition on Federalism. We invite you to consult the Call for PapersThe deadline for submissions is February 1, 2021. 

This edition’s overall theme is Federalism, Identity and Public Policy in Challenging Times. This broad theme should allow for reflections abouthe impact of federalism on the current COVID-19 crisis – and vice versa – but by no means should entries be limited to this context. Comparative perspectives are particularly encouraged. 

For the first time, the Competition will be open both to law and political science students/PhD candidates, as well as junior scholars and practitioners from around the world. 

Contributors must beregistered students or have obtained their degrees, in law or political science, less than 5 years before the submission deadline of 1 February 2021. Submissions must be of a maximum 8,000 words in English and 8,800 words in French, including footnotes. 

The prizes will be awarded by a prestigious international jury

The three winners will be invited to present their papers at a symposium in May 2021 in Montreal (circumstances allowing). First-, second- and third-place winners will be awarded prizes of $5,000$3,000, and $1,000 (CAD) respectively.  

Please see the Call for papers for information on author eligibility and paper criteria.  Information on the first two editions of the Competition (as well as the winning essays) may be found here

Sir Anthony Mason Constitutional Law Essay Competition
Law Society of NSW Young Lawyers Public Law and Government Committee
Deadline for submissions: 30 September 2020

Students studying an undergraduate or Juris Doctor law degree are invited to submit an essay of between 2,000 and 2,500 words (including footnotes but not bibliography) by 30 September 2020 on one of the following four questions:

Question One 
“Online engagement by public servants, involving robust professional discussion as part of their duties or as private citizens, benefits their agencies, their professional development, those with whom they are engaged and the Australian public … should be enabled and encouraged”. 
Department of Finance and Deregulation, Engage: Getting on with Government 2.0 

To what extent (if any) is the implied freedom of political communication discussed in Comcare v Banerji [2019] HCA 23 inconsistent with the Australian Government’s vision of “Government 2.0” (as defined by the Department of Finance and Deregulation in the above report) with respect to political communication over the internet? 

Question Two 
“The independence of the judiciary is more likely to be destroyed by the creeping normalisation of piecemeal borrowing of judicial services to do the work of the legislature or the executive than by any single act of outright conscription”. 
Vella v Commissioner of Police (NSW) [2019] HCA38 [145] (Gageler J) 

Gageler J’s dissenting judgment in Vella cautions the High Court against damaging the institutional integrity of the judiciary. Is Gageler J correct in his quote above? In your response, please support your answer by critically evaluating the nature and scope of judicial power in contrast with legislative and executive powers as provided in the Constitution with reference to case law and any commissions of inquiry. 

Question Three 
Discuss by reference to the history of the Constitution whether court judgments can ever be construed as an acquisition of property on just terms. In discussing the question, please consider the judgment of Edelman J in BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 49. Does the answer to the question depend on the nature and form of a court judgment or order, and if so, why? 

Question Four 
“In the Native Title Act (1993 Cth), the Commonwealth Parliament recited that “[the] people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands. “Our legal system would involve a hopeless and incoherent contradiction if it were simultaneously: (i) to recognise and implement this recitation; and (ii) to conclude that those same descendants, identifying and recognised as such, have now become foreigners to the Australian political community”. 
Love v Commonwealth of Australia; Thoms v Same [2020] HCA 3, [454] (Edelman J) 

Love concerned the appropriate scope of the aliens power (s 51(xix)) of the Constitution). Do you agree with Edelman J above? Critically evaluate the above quote with reference to at least one dissenting judgment in Love. 

Please upload your essay as a PDF by 30 September 2020 at this link.

Prize money details
First place: $850; Second place: $500 Third place: $250. The student who wins first prize will also receive the wonderful opportunity to publish their essay on AUSPUBLAW.

The Public Law and Government Committee is grateful for the support of Sir Anthony Mason AC KBE GBM QC, the Law Society of NSW and Gilbert+Tobin Centre of Public Law.

For more information, including terms and conditions, and a competition guide, see here.

Remember, if you have an AUSPUBLAW opportunity, conference or significant public lecture that you would like included in this roundup, please contact us at auspublaw@unsw.edu.au. The roundup is published once a month on the first business day of the month, so please let us know in time for that deadline.

AUSPUBLAW also maintains a a regularly updated (at least once a month) page outlining recent key Australian High Court public law decisions, with links to summaries of these decisions. Also included on this page will be any significant international and foreign decisions in public law that we believe will be of interest to our readers. You can find this page here.

The Commonwealth’s Power to Use the ADF to Provide Civil Aid During Disasters and Pandemics
ANU College of Law
Date: 2 September 2020
Time: 1:00 – 2:00 pm (AEST)
Location: Online

During the January bushfires, the Prime Minister observed that using the Australian Defence Force (ADF) to provide aid was ‘testing the limits of constitutionally defined roles and responsibilities’. The ‘Royal Commission into National Natural Disaster Arrangements’ was established to inquire into these limits.

This seminar by Professor Anne Twomey will address the non-statutory executive power relied upon by the Commonwealth to provide such aid, including prerogative powers, the capacities of the Commonwealth as a legal person and the nationhood power. It will consider how they interact with the constitutional framework and the web of statutes that regulate the ADF, both in the context of natural disasters and the current pandemic.

Anne Twomey is a Professor of Constitutional Law at the University of Sydney. She has previously worked for the High Court of Australia, the Commonwealth Parliamentary Research Service, the Senate Legal and Constitutional Committee and The Cabinet Office of New South Wales.

For further information, and to register, click here.

Melbourne Forum on Constitution Building in Asia and the Pacific 2020 Webinar Series: Emergency Powers and COVID-19
Melbourne Law School, Constitution Transformation Network, International IDEA
Date:  3 September 2020
Time:  2:00 – 4:00 pm (AEST)
Location: Online

In this webinar, practitioners from New ZealandSouth Korea, Singapore, Malaysia and Papua New Guinea will discuss the operation of representation in the course of responding to the pandemic and the manner in which decision-makers were held to account.

Questions to be considered in relation to each case include:
·         What were the main mechanisms used to handle the COVID 19 challenges, both health and economic? With what effects on ‘normal’ government?
·         Was a constitutional emergency power available? If so, was it used? If not, why not?
·         Were other forms of emergency power used? Did they fit within the constitutional framework?
·         In either case, were representatives involved in the approval or scrutiny of the measures taken?
·         Were there other forms of oversight of the responses to the pandemic; for example, through courts?
·         Is there an end in sight to the use of emergency measures?
·         How well did the measures taken work?
·         What positive or negative lessons can be taken from the experiences in this case?

A webinar link will be sent to your email upon registration. 

For further information, and to register, click here.

Public Interest Law in the Time of COVID: Legal Rights and Access to Justice During a Pandemic
Melbourne Law School Clinics at Melbourne Law School
Date: 3 September 2020
Time: 5:00 – 6:00 pm (AEST)
Location: Online

Measures designed to stop the spread of COVID-19 in Australia have had a dramatic impact on the rights and freedoms of all Australians. Despite being told that we are ‘all in this together,’ however, it is becoming increasingly clear that the pandemic is impacting on some members of our community disproportionately and drastically exacerbating existing inequalities in our society.

In this webinar, a panel of legal experts from the human rights, legal aid and community legal sectors will discuss the implications COVID-19 restrictions have on our rights and freedoms, and the ways in which COVID-19 is impacting on some members of our community disproportionately. The Panel will also examine the critical role public interest law has to play in ensuring our rights are protected during a pandemic.

Audience members will be invited to ask questions as part of an interactive and informative discussion on this critical issue affecting many in our community.

For further information, and to register, click here.

On Fairness and Explainability in AI: Interactions Between Computer Science and Social Science
Melbourne Law School
Date: 4 September 2020
Time: 1:00 – 2:00 pm (AEST)
Location: Online

While topics such as fairness and explainability have become key talking points in artificial intelligence, these problems cannot be solved by computer scientists working in a vacuum. This talk will look at the link between computer science and areas of philosophy and social science for solving these problems.

Suresh Venkatasubramanian is a computed scientists and professor at the University of Utah. He is known for his contributions in computational geometry and differential privacy, and his work has been covered by news outlets such as Science Friday, NBC News and Gizmodo.

For further information and to register, click here.

Legal Hour: Modern Slavery
UNSW Faculty of Law
Date: 9 September 2020
Time: 12:00 – 1:00 pm (AEST)
Location: Online

What do you think about when you hear the word slavery? Ancient Greece or Egypt, or the more than 12 million Africans who were traded across the Atlantic? Slavery existed then, and it still exists now. The clothes we wear, the coffee we drink, the food we eat – all of these are the end products of long supply chains tainted by modern slavery.

UNSW Law invites you to join us in a live webinar on Wednesday 9 September at 12pm (AEST) to hear from a dynamic panel of business and human rights leaders on the topic of Modern Slavery.

Legal Hour will explore whether Australia’s legal framework, which is premised on mandated corporate disclosures, is likely to be effective in combating modern slavery? Is more needed, and how should businesses be responding?

Our expert panel will explore why modern slavery continues to this day and its connection with the mainstream economy, and the role businesses can play in helping to end modern slavery.

We hope you are able to join us for Legal Hour. If you are unable to tune in for the livestream, we will also be recording the event, and kindly ask that you still register in order to receive this post-event.

For further information, and to register, click here.

Reading the Tea Leaves of China’s Rule-of-Law Project
ANU College of Law
Date: 9 September 2020
Time: 6:00 – 7:15 pm (AEST)
Location: Online

A push to codify party leadership into law and enshrine “socialist rule of law with Chinese characteristics” suggests that the Chinese Communist Party acknowledges the legitimating power of law. At the same time, China under Xi Jinping continues to bypass state legal requirements through extra-legal detentions and other coercive measures. This has included the detention of up to 1 million ethnic Uyghurs in Xinjiang and the arrest of Canadian and Australian citizens without due process. The end game of Xi’s push to institutionalise and legalise party leadership over the law is uncertain. Emphasising party leadership raises concerns about increased politicisation of decision-making, with less transparency and accountability, threatening not only economic and social development, but also the rule-of-law project that is intended to enhance party legitimacy.

Join our panel of experts as we explore China’s rule-of-law project under Xi Jinping’s rule. The panel will be moderated by Dr Graeme Smith, fellow at ANU Department of Pacific Affairs and co-host of the Little Red Podcast.

For further information, and to register, click here.

Melbourne Forum on Constitution Building in Asia and the Pacific 2020 Webinar Series: Law-Making and Accountability in Responding to COVID-19
Melbourne Law School, Constitution Transformation Network, International IDEA
Date: 10 September 2020
Time: 2:00 – 4:00 pm
Location: Online

In this webinar, practitioners from Solomon IslandsThailandTimor LestePhilippines and Japan will examine the use and effectiveness of constitutional emergency powers, the alternatives to them and the role of representation in either case.

Questions to be considered in relation to each case include:
·         Is representation confined to the legislature, or is there also a separately elected executive?
·         To what extent were responses to the pandemic influenced by the context of a parliamentary or presidential system?
·         How were the legislative functions of law-making, representation and holding the government to account managed during this time?
·         If elections were due, were they held or postponed? If they were held, what concessions were made to the emergency conditions? If they were postponed, with what constitutional consequences?
·         Did legislatures meet during the height of the pandemic? What procedural changes were made?
·         What role did executives play in responding to the pandemic? What role for Cabinets?
·         Was legislative power delegated to the executive and to what extent was its exercise scrutinized?
·         How were decisions about spending made and what oversight has there been over spending policies and their execution in practice?
·         What effect did the impact of the emergency on the operation of legislatures have on other initiatives, of a constitutional or legislative kind?
·         What positive or negative lessons can be learnt from the experiences in this case?

A webinar link will be sent to your email upon registration.

For further information, and to register, click here.

Autonomous Weapons Systems and the Law of Armed Conflict: Compatibility with International Humanitarian Law
University of Queensland School of Law
Date: 11 September 2020
Time: 3:00 – 4:00 pm (AEST)
Location: Online

This seminar will briefly outline the defining technical characteristics of autonomous weapon systems and the aspects of machine autonomy which underlie legal concerns. Their status with respect to current international humanitarian law will be explained and some thoughts will be offered about the ways in which the law might develop in response to increasing military use of autonomous systems.

This seminar draws on Tim McFarland’s new book, Autonomous Weapon Systems and the Law of Armed Conflict: Compatibility with International Humanitarian Law (CUP, 2020).

For further information, and to register, click here.

Melbourne Forum on Constitution Building in Asia and the Pacific 2020 Webinar Series: Multi-Level Government and COVID-19
Melbourne Law School, Constitution Transformation Network, International IDEA
Date: 17 September 2020
Time: 2:00 – 4:00 pm
Location: Online

In this webinar, practitioners from Australia, Nepal, India, Indonesia and Pakistan will discuss the ways in which systems of multi-level government have operated in responding to the emergency. Multi-level government for this purpose includes all states with significant devolution, whether formally federal, unitary with special autonomy for parts of the country, or regionalised with a measure of constitutional protection.

Questions to be considered in relation to each case include:
·         What form does multi-level government take?
·         Did emergency conditions change the normal arrangements for multi-level government?
·         Were both/all levels of government involved in responding to the pandemic?
·         Did governments work together, separately, or both?
·         How effective was action by the centre? How effective was action by sub-state levels of government?
·         On balance, was multi-level government a positive, negative, or neutral factor in responding to this emergency?
·         What positive or negative insights can be gained from experience with multi-level government during this emergency in this case?

A webinar link will be sent to your email upon registration. 

For further information, and to register, click here.

Why the Law is What it Ought to Be
ANU College of Law
Date: 23 September 2020
Time: 6:00 – 7:00 pm (AEST)
Location: Online

Professor Trevor Allan LLD, FBA will present his recent work on the topic ‘Why the law is what it ought to be”. His associated paper on this theme was recently published in Jurisprudence, and is currently available online here.

In this seminar, Professor Allan will present his thesis that the law is constituted by the measure of justice for the political community in which it operates, so that a public conception of justice is substituted for conflicting private ones. He will argue that our legal obligations are precisely the moral obligations we owe as citizens, faithful to that community, and that we honour the demands of justice by our obedience to law – the law that obtains in virtue of adherence to the ideal of the rule of law.

Trevor Allan is Professor of Jurisprudence and Public Law at the University of Cambridge, and is a Fellow of Pembroke College. He is a leading figure in constitutional law, and has written widely on legality, legitimacy and sovereignty in the common law constitution.

For further information, and to register, click here.

The Pandemic Paradox in International Law
ANU College of Law
Date: 23 September 2020
Time: 6:00 – 7:30 pm (AEST)
Location: Online

COVID-19 has given rise to a series of challenges in international law intersecting with patriotism, borders and equality. These paradoxes have rendered the international legal order’s mechanisms for collective action powerless precisely when they are most needed to fight the pandemic. The ‘patriotism paradox’ is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The ‘border paradox’ is that securing domestic populations by excluding non-citizens, in the absence of regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The ‘equality paradox’ is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities.

Join us as we explore these issues with Professor Hilary Charlesworth AM, FAAL, FASSA (University of Melbourne, ANU School of Regulation and Global Governance); Associate Professor Jeremy Farrall and Dr Imogen Saunders (ANU College of Law); and moderator Professor Anthea Roberts (ANU School of Regulation and Global Governance). 

For further information, and to register, click here.

Melbourne Forum on Constitution Building in Asia and the Pacific 2020 Webinar Series: Beyond Representation – Independent and International Institutions
Melbourne Law School, Constitution Transformation Network, International IDEA
Date: 24 September 2020
Time: 2:00 – 4:00 pm
Location: Online

In this webinar, practitioners from Sri Lanka, Fiji, Taiwan and the United Nations will examine the role of other institutions in responding to the pandemic, both domestic and international. In terms of domestic institutions, the session focuses on courts and fourth branch institutions. Internationally, it explores the respective roles of states and the international order in dealing with an emergency of this kind, and focuses in particular on the WHO and the UN.

Questions to be considered in relation to each case include:
·         What other features of the constitutional system affected the state’s response to the emergency?
·         What role did ‘independent’ institutions play during this period? Did they have a plan for carrying out their roles in these circumstances?
·         What role did experts play and within what organizational/structural framework?
·         What role did courts play in responding to the emergency? Were courts inhibited/precluded from review by the facts of the emergency?
·         What role did international institutions play in responding to the emergency?
·         What does the experience of this pandemic suggest about the respective roles of states and international institutions and the relationship between them?

A webinar link will be sent to your email upon registration.  

For further information, and to register, click here.

How AI Can Promote Inclusive Prosperity
Allens Hub for Technology, Law and Innovation at UNSW
Date: 20 October 2020
Time: 11:00 am – 1:00 pm (AEST)
Location: Online

Professor Frank Pasquale will discuss his book “New Laws of Robotics: Defending Human Expertise in the Age of AI”, examining the disruption that will be wrought by AI and how we can harness these technologies rather than fall captive to them – but only through wise regulation.

Too many CEOs tell a simple story about the future of work: if a machine can do what you do, your job will be automated. They envision everyone from doctors to soldiers rendered superfluous by ever-more-powerful artificial intelligence. They offer stark alternatives: make robots or be replaced by them.

Another story is possible. In virtually every walk of life, robotic systems can make labour more valuable, not less. Frank Pasquale tells the story of nurses, teachers, designers, and others who partner with technologists, rather than meekly serving as data sources for their computerised replacements. This cooperation reveals the kind of technological advance that could bring us all better health care, education, and more, while maintaining meaningful work. These partnerships also show how law and regulation can promote prosperity for all, rather than a zero-sum race of humans against machines. AI is poised to disrupt our work and our lives, but we can harness these technologies rather than fall captive to them—but only through wise regulation.

How far should AI be entrusted to assume tasks once performed by humans? What is gained and lost when it does? What is the optimal mix of robotic and human interaction? New Laws of Robotics makes the case that policymakers must not allow corporations or engineers to answer these questions alone. The kind of automation we get—and who it benefits—will depend on myriad small decisions about how to develop AI. Pasquale proposes ways to democratise that decision making, rather than centralise it in unaccountable firms. Sober yet optimistic, New Laws of Robotics offers an inspiring vision of technological progress, in which human capacities and expertise are the irreplaceable center of an inclusive economy.

For further information, and to register, click here.

Hypothetical: A Tale of Terrorism
ANU College of Law
Date: 21 October 2020
Time: 6:00 – 7:30 pm (AEST)
Location: Online

The 2001 September 11 attacks hurled terrorism into the global mainstream media where it has remained for nearly 20 years. Since then, Australia’s counter-terrorism narrative has developed, carving out a new national security landscape. Today, Australia’s domestic terrorist threat level is set as PROBABLE.  

How has the Australian Government prepared us to deal with this threat and what have we given up to get here?

Join our expert panellists as they confront a hypothetical domestic terrorist attack and explore the possible ramifications, anticipated reactions and the likely effects on the future of our society.

The hypothetical will be moderated by Mark Kenny, a Senior Fellow at the Australian Studies Institute and Director of the National Press Club of Australia.

For further information, and to register, click here.

Patron’s Address: Aboriginal Australians and the Common Law
Australian Academy of Law
Date: 22 October 2020
Time: 5:00 pm (AEST)
Location: Online

The Australian Academy of Law’s Ninth Annual Patron’s Address will be delivered by  Her Excellency the Hon Margaret Beazley AC QC, Governor of New South Wales.

In this brief overview, Her Excellency examines the historical and changing relationship of the Common Law and Australian Aboriginals.

The Ninth Annual Patron’s Address will be held online and registration is essential. 

Please register by  Monday 12 October 2020. 

For further information, and to register, click here.

The People in Question: Web Symposium
ANU College of Law
Date: 10 November 2020
Time: 5:00 – 6:30 pm (AEST)
Location: Online

At a time of rising populism and debate about immigration around the world, this Web Symposium introduces and examines the important new book authored by Professor Jo Shaw – The People in Question: Citizens and Constitutions in Uncertain Times. The book provides the first sustained treatment of the relationship between citizenship and constitutional law in a comparative and transnational perspective. It draws on examples from many jurisdictions to assess how countries’ legal, political and cultural processes help to determine the boundaries of citizenship.

In this Web Symposium – jointly sponsored by the ANU College of Law and the International Association of Constitutional Law’s Membership and Exclusion Research Group – the author will first introduce the key themes of the book before hearing and responding to a selection of expert commentaries from scholars in the field drawn from the Asia and Pacific region.

The symposium will be chaired by Research Group Co-Chair Associate Professor Amelia Simpson of ANU Law School.

Registrants will be eligible for a special discount on The People in Question, to be advised at the event.

For further information, and to register, click here.

Relighting a Lamp of the Constitution? Prorogation in the United Kingdom Courts and its Implications
University of Queensland School of Law, Supreme Court Library of Queensland
Date: 12 November 2020
Time: 5:00 – 6:45 pm
Location: Banco Court, Supreme Court of Queensland, Queen Elizabeth II Courts of Law Complex, 415 George Street, Brisbane QLD

The judgment of the UK Supreme Court in Miller (No 2) [2019] UKSC 41 that a prorogation of Parliament in September 2019 under the prerogative power was “unlawful, void and of no effect” is politically and legally controversial. It has led the newly elected government in the United Kingdom to announce a review of the constitutional relationships between the political and judicial branches of government. Eminent legal scholars have variously described the decision itself as either “wholly unjustified by law” or one that has “relit a lamp of the constitution”.  The paper examines such claims. 

The case is the latest in a line in which the courts in the United Kingdom have sought to explain the principles and values of the British constitution and the role of the courts in protecting them from legislative or executive encroachment. Such cases turn on assessments of what is “constitutional” or “fundamental” in statutes and in common law and are hostile to encroachment by the executive or legislative branches.  The reasoning of the courts has been criticised for applying the methods of modern administrative law to matters of high policy.  In Miller (No 2), as in the earlier Miller (No 1), the focus is the institutional architecture of the constitution, rather than the more familiar context for constitutional contest of individual freedom and rights.  There are differences of opinion as to whether judges in such cases are carrying out their inevitable responsibilities under the rule of law to maintain and explain the constitution or whether they tip over into illegitimate constitution-building. 

The changing scope of the political constitution of the United Kingdom post-Brexit and post-devolution and the incongruity of a constitution still based on the “efficient secret” of the near complete fusion of the executive and legislative powers of the state, may lead to a new constitutional settlement in the United Kingdom.  If so, Miller may come to be seen as a product of a set of circumstances that were “unique”, as the Court in is reasons suggested it was, and the march of common law constitutionalism may subside.  If not, Miller may point to further judicial development of the United Kingdom constitution. 

The paper examines whether Miller is properly to be seen as part of what Justice Gummow once described as “the continuing intellectual agonies attending British constitutionalism”, of little relevance to constitutionalism in Australia or other common law jurisdictions with their own unique constitutional histories.  It suggests that the reasoning employed by the United Kingdom Supreme Court has implications for the continuing tug in all jurisdictions between the political and the legal (and in particular the concepts of “justiciability” and “parliamentary sovereignty”). It also has implications for the role in constitutional law of substantive values, many derived from antecedent common law in our shared traditions.  It questions whether the High Court’s location of sovereignty in the Australian Constitution and the stricter separation of powers under the Constitution will accelerate divergence in constitutionalism from jurisdictions such as Canada, the United Kingdom and New Zealand. 

For further information and to register, click here.