Federal systems are often compared based on their history or origins: Riker famously distinguished between ‘coming together’ and ‘holding together’ forms of federalism. Federal systems can also be viewed as serving a variety of potential purposes: they may help promote government closer to the people, greater democratic experimentation, forms of vertical as well as horizontal political accountability, and the accommodation of diversity.

This special issue of the Federal Law Review (‘FLR’), on ‘the theory and practice of federalism in deeply divided societies’, explores those federations that originate from ‘holding together’ rather than ‘coming together’ processes, and that are designed to respond to a range of ethnic, religious, racial and territorial cleavages. There is a growing comparative literature on constitution-making and practice in ‘divided societies’, which includes attention to federalism. But there is still important work to be done understanding when and how federalism succeeds in managing social and political conflict, and promoting peace, stability and democratic resilience, especially in the Asia-Pacific. This volume thus seeks to fill this gap—by encouraging a wide-ranging exploration of these issues and contributing to a global debate on constitutionalism and constitutional design.

Justices of the High Court of Australia have a broad discretion to follow foreign judicial decisions based on whether they consider a decision to be persuasive. But it is difficult to assess what it is about a foreign decision that makes it likely to be followed by the High Court. This has created uncertainty that is problematic for both litigants and the court. To help address the uncertainty associated with the High Court's use of foreign decisions, this article identifies common factors that explain when the High Court is likely to follow foreign decisions. By drawing on theories of persuasive authority and closely analysing decisions from 2015 and 2016, I argue that the High Court is more likely to follow foreign decisions that: (1) are about legislation or instruments with similar words to those in dispute; (2) emanate from certain jurisdictions; (3) are from apex or appellate courts; (4) are raised by litigants; and (5) reflect values common to the Australian legal system. Conversely, the area of law, international consensus and the date of foreign decisions are unlikely to influence the High Court's willingness to follow foreign decisions. These factors can help litigants use foreign decisions effectively and may be used by legal scholars to scrutinise the legitimacy of the High Court's use of foreign decisions and to address the normative question of how the High Court should use foreign law.

Whistleblowers promote the values of responsible government and the rule of law by drawing attention to criminal or other forms of wrongdoing in publicly accountable organisations. This article explores the relationship between whistleblowing, national security and the implied freedom of political communication under the Australian Constitution. Legislation such as the Crimes Act 1914 (Cth) (‘Crimes Act’), the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’) and the Australian Border Force Act 2015 (Cth) (‘Border Force Act’) makes it an offence to reveal certain types of information obtained as a Commonwealth officer. The Public Interest Disclosure Act 2013 (Cth) (‘PIDA’) offers limited protection to whistleblowers in the Commonwealth public sector, but this protection does not extend to information relating to intelligence operations. We argue that blanket criminalisation of unauthorised disclosure by Commonwealth officers or contractors under s 70 of the Crimes Act, along with similar prohibitions in s 35P of the ASIO Act and s 42 of the Border Force Act, offend the implied freedom of political communication by failing to strike an adequate balance between national security and organisational secrecy, on the one hand, and public debate and discussion, on the other. The courts should read down these laws to protect disclosures that hold significant public interest for discussion and debate over government policy or the performance of government officials.

Sir Robert Randolph Garran (10 February 1867-11 January 1957) played a unique role in the early development of the Commonwealth. As Secretary to the Drafting Committee of the Australasian Federal Convention of 1897 and 1898, he was intimately involved in the process by which the Australian Constitution was produced. As Secretary of the Attorney-General's Department from 1901 to 1932, he was responsible for drafting foundational Commonwealth legislation and he played a key part in establishing coherent interpretations of the Constitution in advice to successive Federal Governments. Three aspects of Garran's life and work are explored in this article: the popular movement which established the process by which the Constitution was negotiated, drafted, and submitted to referenda for approval; Garran's tenure and legacy as Secretary of the Attorney-General's Department; and Garran's views on federalism and constitutional law.

Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and the context in which they are applied. Second, there are, nonetheless, some guidelines that can be gleaned from the experiences of countries around the world about the design elements that can make federalism more or less useful for promoting gender equality under different conditions. Third, applying these elements in the case of Myanmar suggests that women's organisations might make common cause with the ethnic minority groups that are negotiating with the government and the army over federalism issues because the women share with these groups certain goals with respect to federal systems. And fourth, there is a connection between gender and federalism, not at the pragmatic or design level, but at the theoretical level. This connection concerns the type of (ideal) orientation that is required of citizens in a federal system and the ways in which that orientation might be valuable for gender equality. It is, then, the character of federal citizens, rather than the federal system itself, that could be inherently beneficial to gender equality.

Increasing attention is being given to the exploitation of temporary migrant workers in Australia, in particular in relation to wage underpayments. But very little focus has been given to the ability of temporary migrant workers to access legal remedies under Australian employment law. This article examines whether temporary migrant workers are able to make and pursue a claim for unfair dismissal within the federal jurisdiction. As unfair dismissal law seeks to protect job security and provides an essential check on managerial prerogative, it is important that temporary migrant workers are able to access this legal avenue to protect them from arbitrary dismissal. We argue there are serious deficiencies in the application, coverage and content of federal unfair dismissal law in relation to temporary migrant workers in Australia.

In this paper, we identify the influence of formal equality—and more specifically, formal gender equality (that is, treating men and women the same)—in central areas of major Australian family law reform over the past 20 years. Given the influence of formal equality and our concerns regarding this trend, we consider whether equality-based arguments should be abandoned entirely, at least in the family law context, and explore alternative approaches that could reframe the debate.

National responsible lending regimes have operated in Australia since 2009, with the stated aims to encourage prudent lending, curtail undesirable market practices, and impose sanctions for irresponsible lending and leasing. This article outlines a study of the supervision of the responsible lending rules by the Australian Securities and Investments Commission (ASIC) from 2014 to mid-2017. The study finds that the Commission proactively engaged with lenders, encouraged tighter lending standards, and sought or imposed severe penalties for egregious conduct. Further, the Commission strategically targeted credit products commonly acknowledged as the riskiest or most material from a borrower's perspective, such as small amount credit contracts, interest only home loans, and car loans. Despite these positive findings, however, many households are heavily indebted and large segments of the community and the nation are highly susceptible to future harm. In this environment, we question the timeliness and sufficiency of the Commission's interventions and responses, and predict further litigation that tests the boundaries of the responsible lending rules. Moving forward, we call for more systematic supervision of responsible lending risks, practices and exposures and propose modest reforms that require lenders to better inform and engage with consumers about the risks of elevated levels of debt.

The relationship between federalism and identity was the single most contentious issue in the drafting of Nepal’s 2015 Constitution, and remains an embattled feature of the country’s post-conflict constitutional settlement. This article explains why ‘constitutional incrementalism’—the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner—was ultimately (and wisely) rejected in Nepal’s federalisation process. Historically a unitary state since its creation in the late eighteenth century, Nepal committed itself to federal restructuring in 2007, but profound disagreements endured over the set of institutional choices concerning the features of Nepal’s federal arrangements throughout the constitution-making process (2008–15). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal’s political impasse. In the end, the 2015 Constitution expressly named the provinces (even if by just using numbers) and demarcated their boundaries already at the time of its promulgation. Any changes to this framework can only take place by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal’s federalisation process, and reflects on the conditions under which constitutional incrementalism may succeed in societies that present profound disagreements over the collective identity of the polity.

In PGA v The Queen, the High Court found that a legal rule ceased to exist well before many people thought it did. In Mabo v Queensland [No 2], the Court found that a legal rule came into existence well before many people thought it did. These conclusions are obviously different, and so are the reasons that led to them. But in both decisions the Court relied on the foundation of a legal rule to account for the rule's validity over time. In PGA, the rule was founded on another legal rule. In Mabo, the rule was founded on an historical fact. I explain how the Court reasoned with these foundations, and what this reasoning suggests about the nature of the common law in Australia.

The ‘modern approach’ to interpretation requires that effect be given to the ordinary meaning of a statutory text in its wider context and with reference to its purpose. This article interrogates the interpretive approach used by the High Court in fundamental rights cases to assess its compatibility with this ‘modern approach’. It asks, specifically, whether the strict text-based approach used in these cases (which involves the application of the principle of legality) is sufficient to determine the meaning of ambiguous statutory texts. The argument made is that the coherent application of the ‘modern approach’ requires that this interpretive approach be justified.

This article focuses on an under-studied aspect of the constraints emerging from ch III of the Australian Constitution: the effect of those constraints on law- and policy-making within the executive. Drawing on interviews with key actors in state and territory lawmaking, this article uses three case studies to examine the way in which ch III constraints have influenced the development of law and policy. The actions of governments in each case study are evaluated against a normative model of constitutional deliberation by the executive. The article concludes by identifying the legal, political and personal factors that influence the way in which state and territory executives engage with constitutional issues.

Is fiscal decentralisation in a polity divided by languages, cultures, tribes, and geography a means to nation-building or a route to secession? I consider the case of Bougainville in Papua New Guinea to provide nuanced information on the above question. This case study reveals that fiscal decentralisation, agreed to as part of a peace agreement signed in 2001 following a decade-long civil war in Bougainville, provided the opportunity for national consolidation. However, tensions surrounding the implementation of arrangements for budgetary support of Bougainville are forcing further fracturing. A definitive answer to the question of whether fiscal decentralisation helped or hindered nation-building will be provided by the referendum, due by mid-2020, when the people of Bougainville will have the option to vote for independence from Papua New Guinea.

Studies have shown that potential whistleblowers are reluctant to report misconduct because they fear retaliation. In Australia, fear of retaliation is exacerbated for private-sector employees where the lack of prescriptive legislation aggravates vulnerability in all but exceptional circumstances. Through examining the codes of conduct of Australia's 100 largest listed companies (‘Codes’) this article argues that while Codes have the potential to provide an important regulatory function through facilitating whistleblowing, the breadth of confidentiality undertakings contained therein may instead be chilling potential whistleblowers from speaking up. While companies have legitimate interests in protecting confidential information, it is well-established that employees may disclose their employer's unlawful conduct to the government, even if such disclosure is in violation of the company's confidentiality policy. To affirm this right, in the United States (US), federal regulators have recently taken ‘pretaliatory’ enforcement action against companies for requiring employees to execute confidentiality agreements that stifle the reporting of possible violations of federal laws. Such regulation by enforcement has successfully effected cultural change through facilitating widespread amendments to US corporate confidentiality agreements. Accordingly, this article argues that any future Australian legislation should include an ‘anti-confidentiality provision’ similar to the US and Canadian frameworks to affirm an employee's right to communicate with a regulator directly, despite any purported agreement or corporate policy to the contrary.

This article reports on a study which investigated the perceptions of professionals in the family law system about how social science research is used in that system in Australia. The results shed light on the daily practices of actors in the system regarding their use of social science research and demonstrate the ubiquitous presence of this research in the family law environment. The study involved a series of focus groups with lawyers and social scientists and gathered data about how the participants perceived various professions engaged with social science research. This revealed the actual world of family law practice, undiscoverable from the published cases. The data show how practitioners perceive that family law professionals, including judges, harness the research positively, but also expose a range of concerns, particularly about judges citing social science research in the courtroom. The article concludes with some steps that could be taken to clarify the way in which social science research could be used.

Judicial review of executive action is the stage upon which all three arms of government engage in stark interplay. The High Court, by virtue of s 75(v) of the Constitution, is vested with supervisory jurisdiction to undertake judicial review of executive action and to grant the constitutional writs of mandamus, prohibition and injunction. However, for centuries, legislatures have enacted privative clauses designed to limit the ability of courts to perform this function, thereby unshackling the executive from judicial restraint. In 1945, the authoritative approach in Australia to construing such clauses was established in the case of Hickman. This approach was substantially overturned by the High Court in 2003 in the case of Plaintiff S157. In this much lauded case, the High Court recognised that s 75(v) amounts to an ‘entrenched minimum provision of judicial review’ and constitutes ‘textual reinforcement’ of the rule of law. Notwithstanding this strong stance, by 2008 the High Court had given effect to a so-called no-invalidity clause which, although conceptually different from the privative clause, enabled Parliament to evade the reach of the High Court's constitutional jurisdiction. This paper seeks to defend Hickman on its own terms, arguing that it is consistent with the modern jurisprudence on statutory interpretation. It then proceeds to criticise the soundness of Plaintiff S157. Finally, it claims that a return to Hickman represents the best way in which to construe no-invalidity clauses.

There is a theory of statutory interpretation that is simple, elegant and well-subscribed. The theory is known as the meaning thesis, and it holds that the law of a statute consists in the ordinary linguistic meaning that is communicated by the statute's language. In a recent article Dale Smith has sought to discredit the meaning thesis. Here I will seek to discredit the thesis further, this time by drawing on the accomplishments of linguistics and the philosophy of language. In order for the meaning thesis to succeed, it must be demonstrated that the thesis is consistent with the established common law rules of interpretation. However, some of these rules appear to require that judges defy the plain linguistic meanings of statutes in limited circumstances. The meaning theorist's challenge, then, is to find some way to show that the established rules of interpretation do not truly cause judges to defy the language of statutes, despite appearances to the contrary. In this article, I will explain why the meaning theorist only has bad options in this regard. Of the available options, meaning theorists have settled for an argument that is premised on a flawed theory of how language communicates meaning. The theory of communication in question was proposed by H P Grice in the 1950s, but discredited by his contemporaries.

It is well known that the ‘free exercise’ and ‘establishment’ clauses in Section 116 of the Australian Constitution have been interpreted narrowly by the High Court of Australia. However, there has been limited examination of theoretical assumptions or perspectives which may have consciously or unconsciously informed this interpretation. This article argues the High Court has adopted liberal assumptions about the nature of religion and its relationship to the state in the Section 116 cases. These liberal assumptions are a sharp distinction between ‘private’ religious and ‘public’ non-religious exercise, that religious freedom is subject to state determinations of what is required for neutrality between religions, and religious freedom is subject to state determinations of what is required for social order. The article proceeds to consider the implications of these assumptions for Section 116 cases in terms of a narrowing of religious freedom and a broadening of state power, and suggests awareness of these issues may produce a more nuanced approach to Section 116 in the future.

This article is a case study of federalism in Malaysia as applied to the East Malaysian states of Sabah and Sarawak, which joined the federation in 1963. It is only in the case of these two states, in the context of Malaysia, that federalism is designed to deal with ethnic issues, the majority in both states being Indigenous people. Protection of these states’ Indigenous people was a priority in 1963 and special status was given to these states in order to provide such protection. The study finds, nonetheless, that this special status has been eroded over the last 55 years by political interference by the federal government, and that the special status of these two states has proved ineffective, and indeed largely unacknowledged at the federal level. Accordingly, this study finds that federalism as protection for Indigenous people has been ineffective and the situation of the Indigenous people has as a result deteriorated over time. The solution, it is suggested, is through democratic empowerment at the state level and for federalism to provide deeper forms of constitutional protection.

The most desirable outcome from corporate insolvency is one that achieves the greatest return for all creditors including revenue authorities; minimises the cost of administering the system so that money is not pointlessly consumed; lessens reliance on government safety nets; and deters and punishes those who would use insolvency to their own advantage. This paper explores these intersecting priorities and argues for a new approach to insolvency administration that achieves these objectives.