This article maps out and evaluates the rise of ‘Deliberative Rights Theory’ (‘DRT’), a novel field of human rights analysis drawing on ideas from deliberative democracy. Deliberative democracy addresses dilemmas such as how deliberative and democratic inputs into public decision-making can each be influential, without either one dominating the other. This is especially apt for human rights, as settling complex and contentious rights cases (eg on COVID-19 vaccination, internet speech or assisted dying) calls for both technical deliberation and democratic input. There is an acute risk of noncompliance with – or even backlash against – rights decisions that lack either type of input. DRT’s normative strand of research explores conditions for uncoerced interactions between diverse participants in rights decision-making (eg ‘reasoned persuasion’, ‘epistemic diversity’ and ‘temporal deferral’). These conditions allow for an ‘integration’ of both deliberation and democracy in the course of decision-making about rights. This relatively nuanced and promising answer to the deliberation-democracy dilemma helps to account for DRT’s rising prominence. By contrast, ‘strategic’ approaches expect participants to leverage their status or power to push for outcomes they favour. The article contends that strategic approaches implicit in many existing rights theories cannot solve the deliberation-democracy dilemma, but rather allow one type of input (deliberative or democratic) or one type of institution (eg a court or legislature) to dominate. A further, institutionalist strand of research addresses how to realise DRT’s high normative ideals. The article suggests that court-focused rights models are frequently inadequate. Newer approaches, such as the mini-public model increasingly prominent in deliberative democracy, can best integrate democracy and deliberation for rights decision-making.

Strong constitutionalism usually conceives rights as instruments for protecting people. The problem with this conception is that it generates legal alienation, since it views people as passive recipients of protection, which is an exclusive matter for the state and, ultimately, for judicial review. In contrast, deliberative constitutionalism gives people an active role in deliberating about rights, among themselves as well as between them and the state. However, despite the development of deliberative constitutionalism, it is not yet clear what this view of rights requires of judicial review. Accordingly, this contribution to the Federal Law Review’s symposium issue on deliberative rights theory argues for deliberative judicial review, which is a form of judicial review that, by respecting and promoting democratic deliberation, offers better protection of rights, as well as greater impartiality and legitimacy. In support of this argument, the article first makes explicit that the guide that should orient judicial review is not deference or activism but rather democratic deliberation. Next it states that, from this guide, a form of judicial review should be inferred that is not merely substantial or merely procedural, but rather semiprocedural. It then argues that, notwithstanding contextual turns, weak constitutionalism combined with channels of social dialogue offers a better institutional basis for deliberative judicial review than strong constitutionalism. Lastly, it concludes that deliberative judicial review respects and contributes to articulating rights without legal alienation, i.e. through dialogue among all potentially affected persons.

Judges’ role in adjudicating constitutional human rights is frequently criticised as undemocratic, fuelled by recent United States Supreme Court judgements on abortion, gun rights and the environment. But human rights of those without political power are insufficiently protected by decision-makers accountable only to majorities. This paper develops a model of human rights adjudication which enhances democracy rather than detracting from it. Human rights disputes should not be determined through bargaining, which reflects the power of different interests, but through ‘value-oriented’ reasoning, where parties adduce reasons aiming to convince others, while remaining open to persuasion. This is the essence of deliberative democracy. However, this is not open-ended deliberation. Although human rights are abstract, requiring further interpretation in particular contexts, they establish a ‘realm of meaning’ setting the boundaries within which deliberation can occur. This is bounded deliberation. Courts should enhance deliberative democracy by requiring decision-makers to demonstrate that they have addressed human rights questions in a value-oriented manner, rather than reflecting political, numerical or economic power. This includes ensuring a variety of perspectives and that marginalised voices are taken seriously. The paper uses examples from different jurisdictions, including India, South Africa and the US, to demonstrate the possibility of this model.

Deliberative mini-publics are decision-making bodies that provide technical instruction to a set of randomly-selected citizens, who then deliberate over public policies. Mini-publics have long seen use across a range of policy areas globally. The appeal of using mini-publics lies in their integration of democratic and deliberative inputs, which can enhance the legitimacy of policy decisions and may even help to settle deeply divisive public debates. Yet whether mini-publics can be adapted to the adjudication of human rights remains an open question. This article provides the first general empirical evaluation of this question. It finds, first, an expanding set of bona fide deliberative mini-publics adjudicating rights disputes, on subjects from hate speech to Covid-19. However, a second and more complex analysis considers whether mini-publics can conduct the deliberations necessary to adjudicate rights disputes. Some theoretical commentary assumes that they can, given that rights adjudication requires factual or value-based analyses, to which lay citizens seem well suited. The article indeed finds evidence to support this conclusion, providing proof-of-concept that mini-publics can adjudicate rights disputes effectively. However, support for the conclusion is conditional: how well mini-publics invoke key rights doctrines depends on the nature of support and information provided to lay participants.

‘Deliberative Rights Theory’ evaluates what deliberative democratic scholarship can contribute to the constitutional question of how to protect fundamental rights and freedoms. That scholarship primarily focuses on what occurs within the legislature, judiciary and citizen assemblies to test the relationship between deliberation and rights. This article argues that what occurs within federalism can also significantly influence rights deliberation and thus should be part of the conversation. The article explores federalism’s effect on rights deliberation through two case studies from the COVID-19 pandemic. The first considers Australia’s decision to close its international border and the way federalism influenced discussion and debate on the right of citizens to return to the country. The second considers Canada’s decision to end the ‘Freedom Convoy’ against vaccination mandates and the way federalism affected discussion and debate on the right to protest. The article concludes by considering some directions for future research on the topic.

This article reconsiders the method of constitutional interpretation employed by the Australian High Court, in light of the lack of formal amendments to the Australian Constitution. The Court eschews any power to change the meaning of the Constitution, including to keep pace with contemporary needs and values. That is in large part because section 128 of the Constitution vests power in the people and their representatives to change the Constitution – and thus it is said, it would be undemocratic for the Court to change the Constitution for them. But section 128 has fallen into desuetude: constitutional referendums are rare, and rarely succeed. This requires a reassessment of the values served by the interpretive method of the High Court, though this article concludes that this method remains normatively sound. It does serve democracy – though only in a thin sense of that term. More importantly, it preserves the institutional legitimacy of the High Court.

Within the Australian Federation to what extent is the Commonwealth Parliament prevented from ‘conscripting’ or ‘commandeering’ State officers for its own purposes? Drawing on the history of commandeering both in the United States and in Australia, this article explores the constraints on the formulation of any Australian-based doctrine in light of recent High Court jurisprudence. This article argues that while the practical scope of any Australian-derived doctrine has been curtailed by the High Court, there is a role for it to play as a ‘per se’ breach of the Melbourne Corporation principle. But to have that effect, its ambit must be confined to situations where there is (i) an administrative duty imposed on (ii) a state statutory office holder or statutory body, where (iii) this has not been acquiesced to by the relevant state legislature or contemplated by the Constitution.

Ryan Goss has criticised the habit of Australian lawyers to use the terms “parliamentary sovereignty” or “parliamentary supremacy” when describing the nature of the legislative authority of their parliaments. He objects that, because no Australian parliament has unlimited authority, the use of these terms is incoherent or at least very confusing, and serves no useful purpose. This article aims to rebut his criticisms, by showing first, what Australian lawyers mean when they talk about their parliaments having sovereignty or supremacy within limits; secondly, what aspect of sovereignty or supremacy can meaningfully be said to exist, given the many limits to legislative power in Australia; and thirdly, why such talk continues to be useful. I will also show that such talk is not an odd Australian idiosyncrasy; it was first adopted by eminent British judges in the late Nineteenth Century, and can be found throughout the British Commonwealth and even in the United States.

Proof is a fundamental problem facing those who experience discrimination in the workplace. Statutory discrimination law in Australia typically relies on an individual claimant proving their case, without a shifting burden of proof. Using age discrimination as a lens to facilitate analysis, and drawing on innovative findings from a multi-year, mixed methods empirical study of the enforcement of age discrimination law in Australia and the UK, this article offers the first empirically-informed assessment of what difference a shifting burden of proof would make to Australian discrimination law. It argues that while a shifting burden of proof may be important in finely balanced cases, and should be adopted for that reason, it is insufficient to overcome the limits of individual enforcement, and the dramatic information disparities between workers and employers. It offers important additional strategies or tools that might also help address the problem of proof, to better advance equality.

Civil penalties were introduced into the corporations legislation in 1993. They were seldom used initially. Only 14 civil penalty actions were commenced by the corporate regulator in the first six years. Over the past three decades, the civil penalty regimes which the Australian Securities and Investments Commission (‘ASIC’) enforces have significantly expanded. To understand the impact of these changes, the authors analyse a dataset of all ASIC’s civil penalty actions that were finalised for the 10-year period from 2013 to 2022. Based on this analysis, the authors argue that civil penalty actions have now become a very significant part of ASIC’s enforcement strategy. The authors also discuss other aspects of ASIC’s use of civil penalties, including ASIC’s success rate in this type of litigation, the characteristics of the defendants, the most common claims made by ASIC in civil penalty proceedings and the orders most often imposed by the courts. The authors identify possible reasons for their findings.

This article considers international standards of indigenous self-determination and self-governance rights exercised through establishment of indigenous representative institutions. In doing so, this article examines necessary processes of engagement a State should implement, that includes Indigenous people in the design, development, and maintenance of their own representative institutions so that they can function effectively. This article also considers how national indigenous representative institutions have been established and maintained in Australia and Canada given both chosen jurisdictions share similar colonial experiences yet have different formal legislative arrangements in place for Indigenous institutional representation at a national level. It then considers how, given their differing circumstances, those institutions in each jurisdiction work effectively and in partnership with the State. Ultimately, this article canvasses both the advances and limitations that Indigenous peoples of Australia and Canada have experienced with seeking to legislatively implement internationally recognised Indigenous rights within their State’s legal system. In doing so, this article seeks to highlight the lessons that can be learned from both jurisdictions’ experiences and emphasise the importance of achieving better outcomes for Indigenous peoples through a state’s implementation and support of self-governance and self-determination rights.