Each year approximately 60 registered health practitioners in Australia have their registration cancelled for reasons of serious misconduct or, less commonly, impairment or criminal conviction. Cancellation remains in force unless the practitioner successfully brings a later application to be restored to the register. While the decision to deregister takes place in a public tribunal process, with published reasons, throughout most of Australia determinations concerning reinstatement are undertaken by professional Boards in private. This research examines available reinstatement decisions concerning 86 health practitioners to analyse how the health regulatory system in Australia determines questions of public interest and public safety when deciding whether deregistered health practitioners who seek reinstatement are now ‘fit and proper’ to practise their profession again. There is a considerable body of case law on the meaning of fitness to practise for health professionals, and the process by which it can be assessed. However, there is remarkably little legislative content or administrative guidance to structure the reinstatement inquiry, assist applicants in the process or to ensure consistency of decision-making, in particular by drawing attention to broader public protection factors. Reinstatement determinations would be improved through the introduction of structured guidance on how to apply the paramount objective of public protection. The article also suggests that having all reinstatement determinations take place in public with published reasons would improve public understanding of, and confidence in, the reinstatement process.

Ghana’s Constitution has long emphasised the importance of equality, democracy, human rights and development. These principles are entrenched in a separation of powers framework that includes independent constitutional bodies that operate semi-autonomously from the tripartite executive, legislative and judicial branches. As part of a symposium on so-called ‘fourth branch’ institutions that provide redress for poverty and inequality, this article explores two institutions: the Commission on Human Rights and Administrative Justice and the National Development Planning Commission. The first is a 30-year-old national human rights institution, which monitors and investigates alleged violations of human rights, corruption and the misappropriation of public moneys, and provides redress, partly through its increasing focus on economic and social rights and the claims of the most vulnerable, including women, children and persons with disabilities. The second, currently executive body, is the subject of current calls for constitutional reform in Ghana. These reforms would entrench national development planning to enhance features of autonomy, technical capacity and partisan independence. As such, these proposals offer a distinctive and yet also paradigm-defying model of fourth branch arrangements in developmental constitutionalism, raising questions about the usurpation of policymaking and the deficits of democracy that are commonly raised against courts, international financial institutions or other international economic arrangements.

Australia appears to be following the trend in mainly Western countries of recognising animal sentience in the law. This article sets out a typology of animal sentience recognition provisions that have been enacted, or have been proposed, in Australian jurisdictions to date. These include provisions or proposed provisions located in statutory objects, statutory principles, statutory definitions and a treaty. Depending on legislative context, these provisions, and proposed provisions (if enacted), may have different legal consequences. The trend towards legally recognising animal sentience may also signal further positive legal reforms for animals in the future.

The Constitution of South Africa, 1996, is committed to redressing poverty and inequality. This is evident in its inclusion of a range of justiciable socio-economic rights along with a strong substantive right to equality and non-discrimination. The South African Human Rights Commission is a state institution established by the Constitution to support constitutional democracy. It has wide-ranging powers to investigate, monitor and protect human rights, including an express constitutional mandate in relation to socio-economic rights. This article examines how it has sought to apply its constitutional and legislative mandates to various manifestations of poverty and economic inequality in South Africa. It focuses on three broad areas of the Commission’s work with a view to identifying its achievements as well as some of the key challenges it has faced. Based on this analysis, the article concludes by reflecting on the broader implications of the experience of the Commission for fourth branch institutions, specifically national human rights institutions, that apply a human rights lens to poverty and economic inequality.

In April 2016, then Prime Minister Malcolm Turnbull confirmed the existence of Australia’s offensive cyber capability. Said to constitute both a coordinating Information Warfare Division inside the Australian Army as well as dedicated cyberoffensive capability inside the Australian Signals Directorate, the unveiling of this capability was a watershed in Australian defence policy. Yet whilst the literature has briefly examined whether Australia’s cyberoffensive capability is congruous with international law, no such analysis under Australia’s domestic laws has been undertaken. This paper seeks to partially address this gap in the research by focusing on whether the Australian Defence Force could legally launch cyberattacks against domestic targets under Commonwealth call-out powers.

Indian judges retire, but not into inactivity. Many pursue careers in government-appointed roles. Scaffolded around the concept of institutional corruption, this article interrogates the history, law and politics of the retirement careers of judges in India. Three questions take centre stage in this analysis: What types of careers do retired judges pursue? Why do they pursue them? How do judges’ post-retirement ambitions impact their pre-retirement decisions? The cumulative analysis suggests that the Supreme Court of India, not specific judges, benches or decisions, is institutionally corrupt. The system of post-retirement jobs cycles like an economy of influence that is weakening the institution’s effectiveness, especially its capacity for impartial adjudication in matters that involve governments. But the Indian court’s performance and its public reception also reveal unique attributes that can enrich our general understanding of institutional corruption and separate the concept’s essential features from its auxiliary ones.

This article explores the significance of the Kenya National Human Rights Commission (‘KNCHR’) and the National Gender and Equality Commission (‘NGEC’), as independent ‘fourth branch’ institutions protecting democracy (‘IPDs’) in Kenya, in promoting and protecting human rights, democracy and addressing poverty and economic inequality. It provides a conceptual background for the establishment of the two Commissions and evaluates their functions and effectiveness compared to civil society organisations with similar roles. It then examines the unique role of the Commissions in addressing poverty and economic inequality and their accomplishments in upholding the rule of law, democratic ideals and human rights in Kenya. The article also analyses the challenges faced by the Commissions in achieving their goals and the opportunities arising from their emergence as fourth branch IPDs. Finally, it concludes that the constitutional entrenchment of the KNCHR and NGEC provides them with credibility, legitimacy and freedom to carry out their work effectively. However, resource constraints and dependence on political goodwill may hinder their effectiveness in translating human rights, particularly socio-economic rights, into reality. Despite these challenges, the Commissions’ oversight, investigation and complaint handling roles are critical in preventing and addressing poverty and economic inequality through data-driven transformation and collaborative efforts.

Three decades ago, in Cole v Whitfield, the High Court of Australia opted for a discrimination-based standard with the argument that s 92 of the Australian Constitution targets solely protectionist measures. This article demonstrates, with the use of comparative law analysis, that, in contrast with this teleology, the High Court has built a lacunose definition of discrimination that is incapable of covering the whole spectrum of protectionist measures. It argues that measures having an asymmetric impact should be considered discriminatory and countenanced only if they are justified by a local legitimate end and are proportionate, even if they rely on distinctions that are not based on out-of-state origin.

The article examines the role of transnational peer review in shaping financial market regulation in Australia in pursuit of financial stability. Transnational regulatory networks have become an important source of standards and enforcement practices in financial regulation. In the aftermath of the financial crises of the 2000s, global initiatives to strengthen financial supervision have reinforced peer review mechanisms to monitor the national implementation of transnational standards. Through such peer review, regulatory networks can influence domestic rules and practices, as well as the exercise of discretion by national regulatory authorities. The article studies the interaction between transnational peer review and regulatory choices in Australian financial supervision through three case studies. Notwithstanding concerns in the literature about the efficacy and legitimacy of regulatory networks, the case studies demonstrate the scope for productive dialogue between the transnational and national level in making regulatory choices.

Numerous recent scandals have surfaced relating to the Australian government allegedly engaging in ‘pork barrelling’, that is, the partisan channelling of grants funding to government electorates, instead of merit-based allocation. Yet the probity of the use of public money is crucial towards preserving public trust in Australian democratic institutions. This article will critically analyse the legal accountability mechanisms for grants funding through public finance legislation, ‘soft law’ such as grants, guidelines and ministerial standards, and the availability of legal redress. It will also examine political accountability mechanisms, including the operation of parliamentary committees, the Auditor-General and the Ombudsman. The author argues that although political regulation provides transparency in the government’s use of public funds, it remains ineffective to combat the government’s deeply entrenched incentives to allocate grants in a partisan manner. As such, it is contended that stronger legal accountability in terms of enforceable rules and regulations is required to reform grants regulation towards improving the probity and accountability of the use of public funding.

The Scottish Poverty and Inequality Commission (hereafter ‘the Commission’) is a relatively new fourth branch institution with responsibility for addressing both poverty and inequality in Scotland. Nonetheless, it has made important, if modest and incremental, inroads in achieving these objectives, by encouraging the collection and use by government of relevant data in policy-formation; and the expansion and acceleration in the roll-out of important substantive policies focused on alleviating child poverty. The question this raises is what underpins this institutional success. The article draws attention to three key factors: the Commission’s distinctive combination of independence and a collaborative approach to policymaking, supported by a ‘triangular’ relationship between the government, Commission and civil society; its expertise and perceived legitimacy; and the unique policy context presented by the COVID-19 pandemic. These factors, it suggests, also offer useful lessons for constitutional and institutional designers elsewhere — about both the promise and contingency and four branch solutions to problems of economic exclusion and disadvantage.

The growth of the ‘gig economy’ has prompted debate about the regulation of arrangements to obtain work and income through digital labour platforms. For platform workers who are classified as freelancers or independent contractors, rather than as employees, one possibility is to invoke general laws on the fairness of contractual terms to challenge the inclusion of harsh or one-sided provisions in the contracts of adhesion typically drafted and imposed by digital platforms. To test the potential application of one such regime, in pt 2-3 of the Australian Consumer Law (‘ACL’), we systematically analyse the terms and conditions used by various platforms intermediating work performed in Australia, within and across different industry sectors. Our analysis uncovers many examples of terms that are designated in s 25 of the ACL as potentially unfair or that have been identified as potentially problematic by the Australian Competition and Consumer Commission (‘ACCC’). We also examine the practical difficulties confronting a worker seeking to challenge the fairness of their contract terms, against the background of recent reforms to enhance the efficacy of this regime.

The Australian Charities and Not-for-Profits Commission Act 2012 and Australian Charities and Not-for-Profits Commission Regulation 2013 have established a comprehensive regulatory framework for the charities and not-for-profit sector at a federal level. When making the Act and Regulation the Commonwealth relied upon several heads of legislative power in section 51 of the Constitution, the most important of which is the taxation power. This article develops and assesses three arguments why the relevant provisions of the legislative scheme are not supported by the taxation power. These arguments are, firstly, that the Act and Regulations do not have a sufficient connection to the subject matter of taxation, secondly, that they are not reasonably capable of being considered appropriate and adapted to achieving a legitimate purpose or object that falls within the taxation power and, thirdly, that in combination with the Income Tax Act 1986 and Income Tax Assessment Act 1997, they impose an obligation to pay money in a manner that is so arbitrary that they cannot be characterised as laws with respect to the subject matter of taxation. It is concluded that these three lines of argument provide strong reasons why the Act and Regulations are not supported by the taxation power.

Legal and political battles about health policy in the immediate post-war years have cast a long shadow in Australia. The ‘civil conscription’ sub-provision in s 51(xxiiiA) (health and welfare power) of the Australian Constitution is still cited as a major barrier to developing health policy. But long after the High Court moved on from a very restrictive interpretation of Commonwealth powers, policymakers appear to be cautious about testing whether the Commonwealth has power to make laws about medical services to pursue a bold agenda about access, quality, and efficiency of medical care. In this article we will first describe the origin and phrasing of s 51(xxiiiA), the main head of power, then trace the development of the interpretation of the civil conscription sub-provision, and finally discuss whether politically realistic policy options are likely to founder on the shoals of High Court interpretation. We argue that the civil conscription limitation in s 51 (xxiiiA) in the Constitution looms larger as a policy constraint on regulation of health care by the Commonwealth government in the minds of decision-makers, and as a weapon in the hands of stakeholders, than contemporary analysis of it warrants.

This article reviews the experience of Ireland’s Combat Poverty Agency and asks what lessons it may have for fourth branch scholarship. The lesson of the Agency is, in part, one about the pitfalls for novel institutions operating within a traditional tripartite model of constitutional government. The article also suggests, however, that the Combat Poverty Agency’s history may point to the positive potential for the design and operational strategies of non-traditional bodies charged with the promotion of specific social or economic goals. In so doing some reservations about both the specific implications and overall utility of framing these bodies in ‘fourth branch’ terms are also raised. These include concerns regarding the distinctiveness and (relatedly) authority of some conceptions of a ‘fourth branch’. In particular, however, the article queries whether the elevation of independent agencies to ‘branch’ status is always beneficial; and whether, in fact, the location of anti-poverty agencies at a sub-constitutional level may, under certain conditions at least, offer advantages in terms of flexibility and practical problem-solving power.